Waterhouse v The Queen

[1993] HCATrans 300

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S24 of 1993

B e t w e e n -

ROBERT WILLIAM WATERHOUSE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 12.24 PM

Copyright in the High Court of Australia

Waterhouse 1 8/10/93

MR M.F. ADAMS, QC:  If the Court pleases, I appear for the

applicant. (instructed by Jeffreys & Associates)

MR R.O. BLANCH, QC:  May it please the Court, I appear for

the Crown with my learned friend, MR P.J.P. POWER.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

MASON CJ:	Mr Adams.
MR ADAMS:	There are two points in this appeal; one as to

conviction and one as to sentence, if the Court

pleases. As to conviction, the applicant submits

that the Racing Appeals Tribunal had no power to

administer an oath and, accordingly, there was no basis for a conviction for perjury in relation to the applicant.

TOOHEY J: Is that the way that it is put, Mr Adams, that

the Tribunal had no power to administer an oath,

not that Mr Goran had no power to administer an

oath?

MR ADAMS:  That neither had the power, with respect,

Your Honours, is the way it is put.

TOOHEY J: Well, I wondered. You put it purely in terms of

the Tribunal.

MR ADAMS:	I think that was because that was the way the matter was generally put, but the question whether
Mr Goran had some personal capacity in which he
could administer an oath was fairly and squarely raised in the Court of Criminal Appeal and the
Court of Criminal Appeal said, in effect, that he
was a person acting as the Tribunal within the
relevant section of the Interpretation Act.
TOOHEY J:	Do you challenge that conclusion?

MR ADAMS:  Yes, we do, Your Honour. We say that he was

acting not within the meaning of the Interpretation

Act but he was acting as a tribunal. The Act

itself, that is, the Racing Appeals Tribunal Act

and Regulations, itself not giving any power to

administer an oath, that evinced a legislative

intention that he not have a power to administer an

oath and that the Interpretation Act does not carry the matter any further because he does not act as a

person but he was acting as a tribunal.

MASON CJ: This seems to be a Byzantine distinction, one you

have surfaced centuries ago; a millennia ago.

MR ADAMS:  Your Honours, things were truthfully said then.

Waterhouse 2 8/10/93

MASON CJ: Well, I hope they are going to be truthfully said

today as well.

MR ADAMS:  Perhaps I should have said correctly said then,

Your Honour.

The power to administer an oath with the

consequences that arise are extremely serious. The

Appeals Tribunal Act or, at least, the regulations, created a specific offence and imposed a maximum

term of imprisonment very much lower than that

which was applicable in the event of an indictable

charge of perjury. So, whether or not it was

intended that the Tribunal, in exercise of its
functions, should exercise a power to administer an

oath or, rather, that the appropriate and relevant

sanction was that which was specifically provided,

has very serious consequences and certainly did for

this particular applicant.

So that whether or not there was such a power

is a very important question, with respect, and we

would submit that the distinction between a person

and a tribunal is a real one. Certainly, in

Shuttleworth - we have not found, I might say, any

authority directly on the point. Shuttleworth is
as close as we could find, and in Shuttleworth, the

Victorian Supreme Court held that there was a

distinction between a person and a court. That was

where an oath had been administered by the Clerk of Petty Sessions and it was said, "Well, the Clerk of Petty Sessions has no power to administer the

oath". The Victorian Supreme Court said that is

true but he was doing it as an agent, if you like,

as an arm of the body which did have power and

stated that in every such case - and it is

sufficiently parallel to our circumstances - it is

the tribunal or the court which administers the

oath. We submit that that is a relevant and

important distinction and not one of mere

scholastic interest.

TOOHEY J: Refinement.

MR ADAMS: Quite. That is so, Your Honour.

TOOHEY J: 

Mr Adams, I think it is probably clear from what

you have said, but I take it you are not arguing
that the absence of a power to administer an oath
in the Act, of itself, is conclusive, against the

argument that there is such a power?

MR ADAMS: 

I would have to concede -

TOOHEY J: 

You would accept that it may be found in the

Interpretation Act?

Waterhouse	8/10/93
MR ADAMS:	Yes, that is so, Your Honour.

TOOHEY J: So, the question then, in the end, resolves

itself or turns upon the Interpretation Act.

MR ADAMS:  That is so, Your Honour. The only way in which I

would bring in to assist the specific

legislation in the Tribunal is, that - also, I

would be faced with an argument, "Well, what's a

sanction against a falsehood?", and make the

submission that the Act itself does provide for a

sanction against a falsehood and make the

observation that it is somewhat surprising that -

it is either the Act.	I think it may be
regulation 10.	I am not sure, off the top of my

head, Your Honours, whether it is the - - -

TOOHEY J:  I would not think there is anything in the Act.

MR ADAMS: It is the regulations. It is regulation 18:

Any person who -

when appearing before the Tribunal in

connection with an appeal, knowingly makes a

statement that is false or misleading in a

material respect, is guilty of an offence and

subject to a fine of $500.

I would submit that there is some assistance for my

argument arising by virtue of a specific advertence

in the relevant procedural legislation to

punishment for falsehood and, more readily, I
submit, leading to the inference that it was

accepted that the Interpretation Act did not apply

and that the mode of governing these matters was a

matter for the Act and the regulations.

It is, I must concede, a question of

interpretation that is, to a great extent, very

much a question of first impression and it is a

question, ultimately, I concede, as Justice Toohey

asked, that it will ultimately be determined by the

terms of the Interpretation Act.

MASON CJ: That may be a fatal concession for you to make,

as far as I am concerned, Mr Adams.

MR ADAMS:  I rather thought that, Your Honour, but I thought

I might as well get it -

MASON CJ:  Mr Goran was appointed under section 6.

MR ADAMS That is so, Your Honour, yes.

Waterhouse	8/10/93
MASON CJ:	Now, do I understand the effect of your argument

to be this, that being appointed under section 6,

there was no power to administer an oath?

MR ADAMS:  That is so.

MASON CJ: But if Mr Goran had been appointed to act as the

Tribunal under section 7, he would have had power

to administer an oath?

MR ADAMS:	No, with respect.
MASON CJ:	No?
MR ADAMS:	No, with respect.  It would not matter that - my

argument would be that whether acting as the

Tribunal or being the Tribunal is not a relevant point of distinction.

MASON CJ: But I had thought that the distinction drawn by

Shuttleworth might have resulted in a different

view being taken under the two sections.

MR ADAMS:  With respect, no. May I just read a passage from

Shuttleworth?

MASON CJ: Yes, certainly.

MR ADAMS: It is very brief. It is referred to merely in

our written submissions. It is (1909) VLR 431, and

the relevant passage appears at the very end of the

judgment, this is the Full Court. The judgment of

the Chief Justice, at page 435 point 7:

My brother Hodges reminds me that one should

also bear in mind the fact that sec. 62 of the

Evidence Act 1890 is in these words:- "Every

court and person now or hereafter having by

law or by consent of parties authority to hear

receive and examine evidence is hereby

empowered to administer an oath ..... "	We
think it is the court or other tribunal in

every instance which must administer the oath.

It may administer it by any man's voice - by

directing any person to read the oath or to

recite it. None the less the giving of the
oath is by the Court, the taking it is by the

witness.

Of course, that is tangential to the problem here.

The problem in Shuttleworth is not the problem with

which we are quite faced here - - -

MASON CJ: Yes, I realize that.

MR ADAMS: But, that was, in my respectful submission, where

one has a tribunal, as here, in every case it is

Waterhouse 8/10/93

the tribunal and the Interpretation Act itself

distinguishes between the body, on the one hand

because it refers to court, and persons who were

seized with certain responsibilities on the other.

In my respectful submission, the tribunal here is

equivalent to the court and not equivalent to the

person, as one applies the Interpretation Act.

TOOHEY J:  But "person" is defined, is it not, by the

Interpretation Act to include bodies politic or corporate?

MR ADAMS: That is so, but -

TOOHEY J:  Would that not be wide enough to include this

tribunal?

MR ADAMS:  The tribunal was neither a body politic nor a

body corporate. We have not put authority but it

was accepted below that that is so.

DAWSON J:	Nor a person?
MR ADAMS:	Nor a person, quite.
DAWSON J:	What was it?
MR ADAMS:	It was a tribunal. The Interpretation Act now

says, "court or body". Your Honour, as we have

seen there has been, especially in recent years, a

proliferation of these non or quasi-judicial - - -

DAWSON J: It was not disembodied, was it?

MR ADAMS:  No, neither is a court, with respect,

disembodied but, we submit, there is an exact

parity of reasoning. If it is enough that a person

performing a task as a tribunal is enough to be

specified, it would be unnecessary for the

Interpretation Act to refer to court at all. It is

the very specification of the court that indicates

exercising powers by virtue of appointment as that	that there is a distinction between a body that is
body, or to act as that body, on the one hand; and
a person who is acting as an individual charged with certain responsibilities and, we submit, that
that is a real and important distinction and one
which, if given its effect, means that here the
tribunal constituted by Mr Goran did not have the
relevant power.

MASON CJ: It just strikes me as a little odd that a

section like section 79 before it was amended would

authorize a person to administer an oath when he

was conducting a hearing, not as a tribunal, but

would not give him or her authority to do it when

he was conducting a hearing as a tribunal.

Waterhouse 6 8/10/93

MR ADAMS:  It may have been that the intention of the

draftsman was that a relevant tribunal would, in

all cases, be set up by statute, and it was

appropriate for that statute to set out the

relevant procedural - - -

MASON CJ: True, but that is speculation as to what was in

the mind of the draftsman. One has to interpret

the provisions of such a section free from

speculations of that kind.

MR ADAMS: Quite, I accept what falls from Your Honour and,

in my respectful submission, I would point, with respect, to the distinction made between "court"

and "person" and say that the section - - -

MASON CJ: Well, that brings us back to the subtlety of that

distinction.

MR ADAMS:  With respect, I would submit that it is not

subtle, that it is a clear point that either -

MASON CJ:  You like it, to use the expression used by

Justice Toohey with which you have acquiesced, the

refinement of that distinction.

MR ADAMS: Well, yes, Your Honour, but we are dealing here

with the imposition of criminal penalties and a

person who, if he or she is to give evidence,

should clearly - it is one thing to have a moral

exhortation that one must tell the truth and I

suppose a public duty to tell the truth; it is

quite another if there is to be a sanction imposed

by the criminal law and it is vital that the extent

of that sanction be clearly understood by the

citizens who come under its application.

In this particular case, the tribunal itself

contained a sanction for falsehood that fell short of imposing a term of imprisonment, and yet by, in

my respectful submission, a by-blow as it were, the

I submit, this much could be said, that if the	Interpretation Act must be looked at and, at least,
tribunal is a person, it is not without doing some
violence to the conception of "person" as distinct
from the conception of a "body" such as a court. In
either event some violence may be done to the language of the Interpretation Act, and my
submission is that the advantage of the proposition
for which we contend is that it is simple, direct,
easily understood and easily to be comprehended by
any person who comes to consider their situation
when they are giving evidence before a tribunal of
this kind. So that, in that respect, I would
submit, that the general principles applying to interpretation of penal statutes should apply in
favour of the applicant. Your Honours, that is as

Waterhouse 7 8/10/93

much as I feel I can usefully say in relation to the

argument on conviction.

In relation to the sentence appeal, the

respectful submission here is that the Court of

Criminal Appeal did not properly exercise its

independent discretion to sentence. What occurred

here was that it was a highly material factor in

the determination of sentence at first instance

that the tribunal was the, if I may refer the Court
to the language of the learned sentencing judge -

it is found from page 52 of the appeal book

following, and at page 53, line 5, His Honour said:

The Racing Appeals Tribunal is a

statutory body set up by the government to

exercise supervisory control over a
multi-million dollar industry, horse racing.

Millions of dollars are regularly wagered in

betting rings and TAB's right throughout

Australia by punters large and small,

professional and recreational. The Racing

Appeals Tribunal has been set up as the

public's guardian as part of a process

designed to ensure that racing is conducted

honestly, to keep racing clean. The elicit
rewards for successful racing fraud, are

potentially huge.

His Honour says that he is not punishing -

the prisoner in respect of the ring-in.

But, His Honour goes on to say from line 20:

The essence of the offence now before

this Court, is that in important proceedings

before the Racing Appeals Tribunal, a body

constituted by the government as a guardian

over the multi-million dollar racing industry

when there were extremely important matters

involved, the prisoner told deliberate lies in

an attempt, I am quite satisfied, to deceive

the commission -

Now as, with respect, the Court of Criminal Appeal

rightly observed that the trial judge -

markedly overstated the role of the Racing

Appeals Tribunal, which is an appeals tribunal

hearing appeals in limited classes of case

from the AJC Committee. However, it does

have an important role -

Your Honours will see, however, from the emphatic

nature of the language used by His Honour below, it

was that characterization which was a most material

Waterhouse 8 8/10/93

factor in weighing the necessary level of

deterrence to be reflected in the sentence which

His Honour imposed. The Court of Criminal Appeal

having determined that that was an error and,

indeed, a marked one,the court then went on to

briefly outline the subjective factors, said that

His Honour Mr Justice Smart who gave the leading judgment, said that he:

would not have expressed matters in the way

the sentencing judge did -

He was:

of the opinion that the sentence imposed was a

moderate and proper one in all the
circumstances and that the sentence imposed

(as distinct from the remarks on sentence)

correctly reflected the seriousness of the

offence -

Your Honours, in my respectful submission, it

was not appropriate for the Court of Criminal

Appeal, having determined that there was a

significant error in the reasons below for
assessing a fundamental aspect of the sentencing

process simply, as it were, to accept that

nevertheless the sentence was a moderate one. It

is trite that a moderate sentence may cover a wide

sentencing range, and a proper sentence may also

cover a wide range. We submit that it was the duty

of the Court of Criminal Appeal here to itself

determine, in accordance with the observations in

House v The King, itself determined, as it had the

proper material before, what was the proper
sentence, and it is not enough to say that the
trial judge's sentence was a proper sentence, it

being clear that there are a number of sentences

that might be passed which were proper sentences.

In the result it, with respect, failed to

exercise its discretion properly, and the order, we

respectfully submit, is affected by appealable

error. We submit that the special leave point

arising in this respect is that it should be stated

by this Court that a Court of Criminal Appeal has a

iuty itself to exercise its own discretion when it

perceives an error below in relation to sentence though there are certain limitations, of course,

where it is disposed to increase as distinct from

decreasing a sentence.

In our respectful submission, it is frequently

said that it is not sufficient if a Court of

Criminal Appeal merely has a different view about a

sentence which it would pass in the circumstances,

but it can only vary the sentence if it is

Waterhouse 9 8/10/93

satisfied that the discretion below miscarried. we

submit that precisely the same parity of reasoning

applies here so that where the sentence below has

miscarried the Court of Criminal Appeal has a duty not merely to, as it were, bounce off the sentence

below but itself to exercise its discretion.

Otherwise the accused has not got what he has a

right to get, which is a court's assessment of his

appropriate culpability considering all the

appropriate and relevant circumstances.

I should say, however, because the appeal book

implies a different set of circumstances, the
applicant did not, in fact, take advantage of the

orders of the Court of Criminal Appeal in relation

to sentence, and although I cannot say how much of

his sentence he has actually served - - -

TOOHEY J:	You mean the bail aspect - - -
MR ADAMS:	That is so.  He has actually served a not

insubstantial portion of his sentence, but I am,

unfortunately, not armed - it is not an easy matter

to calculate because he has had leave and things of

that kind, but I think I should, in frankness,

inform the Court that he has served, I can put it

no more specifically than a not insubstantial

portion of his sentence, as at today's date. Those

are the submissions for the applicant.

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

you, Mr Blanch.

In our view the Court of Criminal Appeal was

correct in holding that there was power to

administer an oath to the applicant. On the

question of sentence, we are not persuaded that

there was any error on the part of the Court of

Criminal Appeal.	The application is therefore
refused.

MR ADAMS:  As the Court pleases.

AT 12.50 PM THE MATTER WAS ADJOURNED SINE DIE.

Waterhouse 10 8/10/93