Warfield v The Queen

[1995] HCATrans 84

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S118 of 1994

B e t w e e n -

RICHARD JOHN WARFIELD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

MASON CJ
DEANE J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 APRIL 1995, AT 12.23 PM

Copyright in the High Court of Australia

MR J.D. PAPAYANNI:   If the Court pleases, I appear for the applicant.  (instructed by Whitfields)

MR P.S. HASTINGS, QC:   If it please the Court, I appear with my learned friend, MR A.J. PAYNE, for the respondent (instructed by the Commonwealth Director of Public Prosecutions)

MASON CJ:   Yes, Mr Papayanni.

MR PAPAYANNI:   The special leave questions are set out in part I of the summary of argument.  This was a procedure that had been established by the Criminal Procedure Act in relation to a sentence indication and the copy of the relevant parts of the Act and also 22 - 24 and 25 of the Chief Judge’s indication as to the procedure that would be followed.  Copies of those are set out in relation to the procedure.

The purpose as set out in the practice note was to attract early pleas of guilty and as well as that, of course, the situation was that it became important to endeavour to reduce the backlog of trials in the District Court.  Procedure had started at Parramatta and was instituted in the Sydney District Court from 4 June 1993.  The procedure as set out there and is also set out in part III of the statement of argument - and the matters that are set out there in relation to how this procedure took place, and it took place before an arraignment.  The accused then had a right to a sentence indication.  The procedure that was adopted was the draft indictment and so on as set out in the brief statement of facts. 

The difference between an ordinary situation where a person pleads guilty was that this was designed prior to a plea being taken as to guilty or not guilty.  The situation would be that the judge was bound by the sentence that he had indicated.  If the judge intended to increase the sentence there had to be extra evidence given on the plea of guilty.  The situation, of course, was that there was also a right after the accused pleaded guilty.  He then had a right, if the judge increased the sentence after further evidence was given, to withdraw his plea; he was entitled to withdraw his plea.  A suppression order would be made in relation to those proceedings that none of those proceedings would be admissible in any further trial of the accused. 

The situation also, in relation to sentence indication, was that in the practice note the Crown was not given any right of making any submissions.  But, of course, in this case they did make the submissions.  When the matter came on after the sentence indication was given, the Crown then presented the indictment and reserved their right by saying they did not concede or accede to the sentence that was given, but they did not offer any further submissions in relation to the matter.

The judge then carried out the sentence and what happened in relation to this matter is set out on part II in relation to what happened after that in relation to appeal and so on.  One of the matters here that was important under section 171D of the District Court Act,  the procedure was that:

Subject to this Act -

that is the District Court Act -

and the rules, the procedure and practice of the District Court when exercising its criminal jurisdiction shall, so far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction.

So you had a situation there where the normal procedure in relation to the District Court was that of the Supreme Court.  There was no sentence indication scheme in the Supreme Court.  The situation then came about that under the Criminal Procedure Act.  A different procedure was adopted in relation to arraignment and also in relation to the sentence indication scheme.

When one looks at section 68(1) of the Judiciary Act, jurisdiction of the State courts is given to the trial and conviction on indictment of offences arising under the laws of the Commonwealth.  Under section 68(2), it says:

The several Courts of a State or Territory exercising jurisdiction with respect to.....
(c)  the trial and conviction on indictment;

of offenders or persons charged with offences -

et cetera, have the like jurisdiction in relation to that.  Under that situation we submit that this was not a matter that was in relation to trial and conviction on indictment.  The situation was that this was a procedure outside the trial and conviction; the situation being in relation to arraignment; before arraignment had taken place and it was something that was not covered by section 68(2) of the Judiciary Act. 

The situation then arose that when one looked at section 5D of the Criminal Appeal Act, that in relation to a Commonwealth matter, at least, the situation then was that the appeal only arose against the sentence and the sentence then would be in accordance with the practice and procedure of the Supreme Court.  This was not in accordance with the practice and procedure of the Supreme Court being outside it.  The difference between it was that in relation to this particular matter, in relation to any sentence indication, the sentence indication carried over into the plea of guilty and then, if no further evidence was given, the judge was bound to give the sentence indication sentence that he had already indicated.

If there was any further evidence, the judge then could give a higher or smaller sentence and if he gave a higher sentence, of course, the accused had the right or was entitled to withdraw his plea.  That was a different situation that arises in relation to an ordinary plea of guilty.  Those conditions do not apply to an ordinary plea of guilty.  The situation being then that the sentence indication conditions had gone over into the plea of guilty.

What then happened is that the accused has, in effect, by the judge becoming bound, then entered into an agreement with the judge that he will not give any higher sentence. That is a matter that, we say, should be taken into consideration in relation to exercising a discretion under section 5D. In Rahme’s Case, which is referred to, the position is made clear there that where an agreement is come to by the Crown and the accused person, that that is a matter that will go against the Crown in appeal in relation to any sentence matter.

In our submission, it would be a much greater situation where an agreement is come to with a judge and should be a matter that would require consideration in relation to the discretion exercised by the Court of Criminal Appeal and should be a matter that would not assist the Crown in relation to such an agreement that has already been entered into and the accused has been induced by the conditions of the sentence indication to enter into that plea of guilty.  One of the difficulties about this matter ‑ ‑ ‑

DEANE J:   Mr Papayanni, I follow what you are saying about discretion but I have missed the force of the point about the Judiciary Act and jurisdiction.

MR PAPAYANNI: We say that under section 5D the Crown can appeal against a sentence. We say that that sentence should be in accordance with what is laid down in the District Court Act and that a sentence should be in accordance with the procedure in the Supreme Court.  This was not a procedure that was similar to the Supreme Court in that it brought in law outside the District Court Act which made it invalid as far as section 68(2) was concerned because section 68(2) only deals with the carry over of the State laws in relation to the conviction and trial on indictment.

This was something outside the trial and no indictment had been presented at that time; only a draft indictment.  So the situation by carry over of the sentence indication into the plea of guilty, and in the plea of guilty the sentence that was given then was subject to the provisions of the sentence indication scheme and was not in accordance with the practice in the Supreme Court.  That sentence then did not allow the Court of Criminal Appeal to have any jurisdiction in relation to a sentence under these conditions; a sentence being in accordance with the Supreme Court.  In that case, we say, that there was no jurisdiction in the Supreme Court.         One of the matters in relation to the judgment ‑ ‑ ‑

DEANE J:   I am very sorry, I still do not follow the point.  You are not suggesting that the sentence procedure could not be availed of because of a limitation in terms in the provisions of the Judiciary Act?

MR PAPAYANNI:   Yes, I am. 

DEANE J:   In other words, none of this procedure was available in the District Court.

MR PAPAYANNI:   To a Commonwealth offence.

DEANE J:   In the District Court?

MR PAPAYANNI:   That is correct.  It did not exist in the Supreme Court and it was not covered by section 68(2) as not being something in connection with the committal and not being something in connection with the trial on indictment or conviction.  The procedure did not exist for a Commonwealth offence.

DEANE J:   This has nothing to do really with the appeal to the Court of Criminal Appeal.  It is an attack on the jurisdiction to impose the original sentence.

MR PAPAYANNI:   That is correct.  It goes to both.

DEANE J:   I had understood the attack on the jurisdiction of the Court of Criminal Appeal.  I had not understood the attack on the jurisdiction of the District Court judge to sentence on this basis.

MR PAPAYANNI:   It would have to go over to both, in my submission.

DEANE J:   Was that put to the Court of Criminal Appeal.

MR PAPAYANNI:   Not in those words, no.

DEANE J:   I mean at all?

MR PAPAYANNI:   They found though, on page 26, that section 68(2) did apply.

DEANE J:   But that was in relation to their own jurisdiction.

MR PAPAYANNI:   That is correct.

DEANE J:   Was it ever put to the - - -

MR PAPAYANNI:   No.

DEANE J:   So this is the first time that it has been suggested that the District Court judge lacked jurisdiction.

MR PAPAYANNI:   That is correct, yes.

DEANE J:   In that case I do not feel quite so guilty for not understanding the point for a little while.

MR PAPAYANNI:   Yes.  Well, of course, there were good reasons for that and instructions were to the contrary but the point, as it now comes before this Court, should be argued, in my submission.  It is a question of jurisdiction.

DEANE J:    Can I delay you further and can you explain the argument about why the District Court judge lacked jurisdiction because I did not follow their argument with that in mind?

MR PAPAYANNI:   Section 171D of the District Court Act says:

Subject to this Act and the rules, the procedure and practice of the District Court when exercising its criminal jurisdiction shall, so far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction.

So there is no such procedure in the Supreme Court.  And, of course, the point is it is not just a plea of guilty in this case, it is a plea of guilty with conditions attached in relation to the sentence indication.  The Criminal Procedure Act has put into the procedure something that the District Court Act does not allow.

DEANE J:   But what is this all really about?  As I understood it, the Court of Criminal Appeal indicated that if you wanted to withdraw your plea of guilty they would extend you an opportunity for applying to do that, and it was indicated that you did not want to.

MR PAPAYANNI:   No.  Well, that was correct in a form - that is not quite the form.  You see, under the Criminal Procedure Act the accused was entitled to withdraw his plea.  All the Court of Criminal Appeal said that, “We will extend the time in which to make the application and then you can bring your evidence and we’ll decide whether we will give you leave to withdraw your plea or not.”  Now, under the sentence indication scheme, he was entitled to withdraw his plea and have a suppression order.  The situation then was that he had been before the District Court; he had also been before the Supreme Court and they had given an indication judgment and a judgment.  All this would be available to the judge if he went back for a trial.  In those situations then, of course, was that his position was irretrievably - almost impossible under those circumstances.

The other matter, really, that I wish to put is that the Court of Criminal Appeal - - -

DEANE J:   Mr Papayanni, I have delayed you for at least five minutes.  If the Chief Justice is prepared to grant you that extra five minutes, I would regard it as something I have brought on the Court.

MASON CJ:   I think you have got a more eloquent spokesman than counsel generally have, Mr Papayanni.

MR PAPAYANNI:   Your Honour, I will just briefly then, perhaps, if I may put the situation:  the Crown, in the sentence indication hearing - they gave no submissions at all after the plea of guilty and we rely on Everett’s Case in relation to that.  In relation to the first point was that they said and they submitted that it was a major facilitative role - co-ordinating role.  Now, the judge in his decision found that it was a facilitating role in accordance with what the Crown said.  He imposed a sentence of 7 years, with a non-parole of 4½ years.  Now, what was submitted to him, and the Crown did not submit anything to the contrary, was that the range was 18 years to 12 years.  Then taking into consideration section 16G, that would be reduced to 12 years and 8 years.  Now, his Honour accepted the bottom part of that which was the 8 years and reduced it to 7 years, having regard to the subjective factors.

Now, the Court of Criminal Appeal adopted an artificial approach to this by saying that is it less than a courier or more than a courier, and the situation was that the sentence that they gave was 13½ years before section 16G reduced it to 9 years.  So, what his Honour had given was 12 years.  What the Court of Criminal Appeal gave was 13½ years.  We say that at no time did the Crown indicate the range; that it was still within the range.  It was not manifestly inadequate by reason of the fact there was only 1½ years difference in relation to it.

The situation was that the Court of Criminal Appeal ridiculed this idea of saying what facilitating role - and they then adopted a different approach; but at no time did they say what the range was; at no time did the Crown say it.  The Court of Criminal Appeal has now laid down that the range should be indicated by the Crown if they oppose it.  In this case the Crown did not oppose.  In a sense, all they did was present the indictment, and saying, “We don’t accede or concede that it’s correct.” 

Now, the Court of Criminal Appeal held wrongly that the Crown had to present the indictment.  Section 17 of the Criminal Procedure Act only says that if they do not present the indictment the judge may order that they could do so.  In this case, if the Crown did not agree to the sentence indication, and they had been a consenting party to it, if they did not indicate it to it, they should not have presented the indictment at that time and then consider the question as to whether a judge makes an order in relation to whether the indictment is presented or not and then have a later date set in relation to the hearing, and offered further evidence or further submissions, but they did not make any submissions.  In accordance with Everett’s Case, that should be against them in that respect.

In relation to the question of the judgment at first, in our submission it is not manifestly inadequate and, secondly, that in relation to the questions of discretion, the accused is in the situation that he cannot - he does not have any appeal, really.  The only matter that he would have in relation to appeal is the fact that he could appeal against something in relation to procedure.

The situation is that he is finished as far as any trial is concerned because the judge at the trial can look at all the decisions that have been made beforehand and he would be in a hopeless position if he went back to trial in relation to that matter because he would not then be before a judge who could give an independent assessment of what his sentence should be.  He would have what the Court of Criminal Appeal says in their sentence indication because there would be no suppression order in relation to that.  He would be in the situation where the court held that evidence that he had given in the sentence indication could be given against him in his trial and he would also in relation to a question of guilty.

Now, I understand that there has been some suggestion - it was never given in these proceedings - that that evidence would not be given but the Court of Criminal Appeal held that it could be given.  So, in our submission, the factors that militate or should have been taken into consideration in relation to dismissing the Crown’s application were the matters that we have set out here; also the fact that by reason of the fact that the agreement had been entered into with the judge and the Crown, not being a party - that may be a fault, of course, in relation to a similar type of plea bargaining in relation to - this is not a plea bargaining, of course, but plea bargaining was where an arrangement has come with the Crown and the judge goes along with it.  There is no question of appeal there.  Here, you have got a stronger situation where the accused has agreed with the judge and then the Crown appeals.  So, a militating factor, under the question of discretion, should be that this matter has been entered into with the judge and that should be a strong matter in favour of the discretion being exercised in favour of the appellant.

So, in those circumstances, even though he still has to go, which is a breach of the conditions on which the sentence indication was, before the Court of Criminal Appeal and put a case to them in which he says that they should give leave to withdraw his plea.  Now, if they do not give leave, and they are quite entitled not to give leave, his situation - there has been a breach of faith in relation to the sentence indication which he first entered his plea of guilty.  So, you get a situation where he is induced to enter into a plea of guilty under certain conditions; those conditions no longer apply because they only bind the judge in the District Court and possibly every other judge in the District Court.  So, that is the situation, in my submission, in relation to this matter, that those matters should have been taken into consideration.  They are matters of great importance because they involve a great number of cases that have already been before the court in relation to sentence indication. 

This is the first case of its kind where an appeal was successful by the Crown and the Court of Criminal Appeal refers to it as a test case and, in my submission, it is a test case and these matters should be ventilated.

MASON CJ:   The Court need not trouble you, Mr Hastings.

In the view of this Court, the Court of Criminal Appeal was correct in deciding that it had jurisdiction to entertain the appeal. Notwithstanding the sentence indication procedure, the sentence was a sentence for the purposes of section 5D of the Criminal Appeal Act 1912 (NSW).

We also consider that the attack on the jurisdiction of the District Court to impose the sentence would fail, having regard to the provisions of Part 12 of the Criminal Procedure Act.  Further, we are not persuaded that there was any error of principle on the part of the Court of Criminal Appeal in exercising its discretion in the way it did.  The application for special leave is therefore refused.

The Court will now adjourn to Canberra at 10.15 am tomorrow.

AT 12.54 PM THE MATTER WAS CONCLUDED