Yates v The Director of Public Prosecutions (Commonwealth)

[1992] HCATrans 219

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SllS of 1991

B e t w e e n -

FRANKLYN ERNEST YATES

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

McHUGH J

Yates 1 4/8/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 4 AUGUST 1992, AT 2.23 PM

Copyright in the High Court of Australia

MR P. ROBERTS:  I appear for the applicant, if Your Honour

pleases. (instructed by Horowitz & Bilinsky)

MS c.c. SIMPSON, QC: If the Court pleases, I appear with my

learned friend, MS E.L. FULLERTON, for the

respondent.	(instructed by the Director of Public
Prosecutions)

MASON CJ: Yes, Mr Roberts.

MR ROBERTS: 

Your Honours, the first and primary ground on which the applicant relies in this matter for

special leave arises from what is submitted was a

denial by the New South Wales Court of Criminal

Appeal to hear, on the merits, part of the grounds

of appeal on an appeal pursuant to section SF of
the Criminal Appeal Act.

The applicant was denied a hearing on the

merits by the application of a general rule of
practice of stare decisis developed by the Court of

Criminal Appeal.

McHUGH J: 

It was not developed by the Court of Criminal Appeal, is it? I mean, it is a principle that is

applied again and again.

MASON CJ: And has much to commend it.

MR ROBERTS:  Your Honour, the particular rule that was

applied here, in my submission, is peculiar to the

New South Wales Court of Criminal Appeal.	It
differs from what has been said in other

jurisdictions and it is certainly far more severe

in its application than other courts of coordinate
jurisdiction have said in relation to the

,desirability of formulating a rule in relation to

Commonwealth legislation.

The rule, if it can be called that, in

Abbrederis' case - what it, in fact, involves is a

matter of some debate, as I will come to in a
moment. It is the existence of that rule that the

applicant seeks to challenge and he submits that
the rule creates injustice and is contrary to the

good administration of justice.

McHUGH J: Surely it is far from being contrary to the good

administration of justice; it is in the interests

of the administration of justice. If a particular
decision is wrong of one of the courts, then it can

be brought up to this Court, but it is an

unsatisfactory state of affairs to have different

decision on the same point in courts of coordinate

authority exercising the same jurisdiction.

Yates 2 4/8/92

MR ROBERTS:  Your Honour, it is also wrong, we would submit,

for a Court of Criminal Appeal to have a rule

which, in effect, precludes them looking at the

merits of the case and, in fact, blindly following

what another court has said. It compounds error,

as I will seek to demonstrate to Your Honours in relation to how this rule developed over time in
relation to section 233B of the Customs Act. It

compounded error and incrementally a series of

decisions arose in that area which, in effect, fed

upon each other. It was not until 1985 that this

Court, when it decided He Kaw Teh, declared what in

fact the law was, overruling a large number of

decisions of Courts of Criminal Appeal in various

States.

MASON CJ: But, Mr Roberts, why should we be concerned with

this point? You are seeking to obtain special

leave to appeal in this case to enable this Court

to consider, in substance, the very points it

declined to consider on a special leave application

at an earlier stage of this litigation and

advisedly for the reason that it would be to

fragment the criminal process. Notwithstanding

that declaration by this Court in the plainest

possible terms, in effect the applicant is seeking

to obtain rulings on precisely the same points in

advance of the trial.

MR ROBERTS:  Your Honours, I see that if special leave were

given and the applicant were successful on this

point, what would happen is that the Court of

Criminal Appeal would decide the point - it would

be sent back to the Court of Criminal Appeal, it

being within the framework of the criminal

structure, not within the civil structure as it was

before under the AD(JR) Act. The only reason, of course, that the matter went to the Federal Court in the first place was because of the Federal

Court's decision in Lamb v Moss in which they have

said, in effect, that if one wishes to challenge

the decision of a committing magistrate, it is by

way of judicial review, and that is the only course

that is open. So that is why it was that the

challenge initially went to the Federal Court,

otherwise it would have gone - and indeed, no doubt

from our point of view, been preferable to have
gone to the criminal courts of the supreme court.
But that was how it developed.

But, Your Honours, if it were successful, the

resolve the point in relation to 29A of the Crimes

challenge here ultimately, the High Court would not of Criminal Appeal to decide that question for

itself and look at the merits of the situation and

not apply a rule which is said to involve an

Yates 3 4/8/92

initial holding that the decision is plainly wrong

which, in my submission, when one analyses it, must

mean wrong in the Wednesbury sense of the term,

because Abbrederis' case, when one looks at it, in

which this doctrine arose and it was the

application of Abbrederis' case that was said to

take place by the Court of Criminal Appeal in this
very case, in Abbrederis the Court of Criminal

Appeal looked at an earlier decision of a Full Court in Victoria, the matter of Van Swol, and

decided that that decision was wrong. And having
decided it was wrong, it then decided that it was

not going to find in favour of the applicant in that case because it was more important, in the

view of the Court of Criminal Appeal, that there be

conformity in interpretation of Commonwealth

legislation despite the fact that it was of the

view that the earlier court, the Full Court of

Victoria, had decided a matter erroneously.

So it was of the view that it was better to

perpetuate error rather than have disconformity in

decision making and it is that rule which the

applicant says is wrong and it is inimical to the

interests of justice. It is that which the

applicant seeks to develop here.

Your Honours, may I hand to the Court a short

.document which I have compiled which has edited

highlights of some of the cases in relation to the

development of this doctrine. I could very shortly

take Your Honours through this document to explain

what the rule is, how it has developed, and how

error has in fact been perpetuated by a number of

decisions of various courts. It just looks at some
of the cases chronologically. If I could just say

a few words in relation to some of them.

The first two cases are Tawill and Van Swol,

both decisions of the Full Court in Victoria in

relation to the Customs Act, 233B, in relation to

possession of drugs. In 1975 the Court of Criminal

Appeal decided Bush's case and declared the law in

relation to what constitutes possession, relying in

partial support on the decision of the Victorian five judges was convened to hear that challenge.
court in Tawill. In 1977, there was a challenge to

There was nothing said about any special rule

applying in that case. Bush's case was affirmed and special leave to the High Court was refused.

In 1977 the Court of Criminal Appeal decided a

case called Router which interpreted, inter alia,

subsection (lA) of the Customs Act and again relied
on the earlier decision of Tawill in formulating

the law. In 1979, the Court of Criminal Appeal in

Yates 4 4/8/92

Queensland decided Gardiner's case and

Justice Hoare in that case, speaking about the uncertainty in relation to 233B, said:

this very uncertainty which not only led to
the assembling of a specially constituted
court to resolve the matter in R v Rawcliffe,
but which also renders it undesirable for this

court again to explore the question. Until

such time as the High Court decides otherwise

or the legislature intervenes, the law on this

topic is to be taken to be that stated in the

passage I have quoted from R v Bush.

And similar remarks were made by Justice Demack who

dissented in relation to the importation part of

the case.

While there is no strictly binding authority

upon this Court I am of the opinion that such

consistent persuasive authority ought to be

followed. Where a Commonwealth Act is being

applied by the State courts it is, in my

opinion, wholly undesirable for different

interpretations to be applied by the courts of

different states. In any case I am convinced

that the decisions in both Victoria and New

South Wales are correct.

That was followed by a decision of the Court

of Criminal Appeal in Western Australia in the

matter of Zibillari and that court looked at the

decision of Router which I have earlier referred to

and doubted the correctness of Router and its

reliance on Tawill. Justice Brinsden in that case

said:

In my view, therefore, the interpretation

placed upon sub-s (lA) in R v Router and

accepted in R v Malas is to be doubted. On

the other hand, it is my view that the Court

of Criminal Appeal of this State, in

interpreting the Customs Act, ought to follow

an earlier and relevant decision of a court of

comparable standing. This court, .therefore, should follow the interpretation placed upon

the sub-section in R v Router, leaving it to
the Crown, if it should wish, to challenge

that interpretation.

After that was the relevant decision of

Abbrederis and it is the judgment of the then

Chief Justice, Justices O'Bryan and Lee relevantly concurring. His Honour the Chief Justice said

this:

Yates 4/8/92

Having reached the conclusion that the decision of the Full Court of Victoria in

R v Van Swol (1975) VR 61, does not correctly

state the construction of par (ca), a question

arises as to what course should be followed.

It is of significance to recognise that the decision was reached by the ultimate State appellate court and unless and until such time as this decision is departed from by the Full

Court of Victoria or the High Court, it will bind absolutely all single judges and inferior

courts in Victoria. Despite the forebodings

of the prophets of doom to the effect that the

existing State court system is less than

appropriate to furnish the forum for
construing Commonwealth legislation, the
suggestion being that inconsistent views
between the States will lead to

inconsistencies in the administration of the

law, I have no difficulty whatever in

perceiving that the doctrine of precedent is

fully adequate to cope with these risks.	As a
matter of precedent this Court is not, of course, bound by the decision of the Full Court of Victoria. But I have not the
slightest doubt that, where a Commonwealth
statute has been construed by the ultimate

appellate court within any State or Territory,

that construction should, as a matter of

ordinary practice, be accepted and applied by

the courts of other States and Territories so

long as it is permitted to stand unchanged

either by the court of origin or by the High

Court. The risk of differing interpretations

amongst the States is thus negated and, in

practical terms, a uniform application of

Commonwealth laws throughout Australia is

assured.

Consistently with what has just been

said, I am in no doubt that, whilst I

respectfully disagree with the construction

placed by the Full Court of Victoria on

s 233B(l.)(ca) the proper course for this

Court is to follow that decision.

So ordinary practice, apparently, was that

even though the court in question disagreed with

the interpretation placed by another court, it

would have followed that because consistency was

more important than being ultimately right and

to - - -

McHUGH J:  No, not being ultimately right, but taking a

different view in the court's opinion. It does not

matter which rule you adopt you are going to have

an injustice; somebody gets convicted in Victoria,

Yates 6 4/8/92

somebody is acquitted in New South Wales or vice

versa. It does not make any difference.

MR ROBERTS:  Your Honour, the jobs of the court, no doubt,

are to construe the legislation that Parliament has

enacted, and if its view that Parliament's will is

not being given by a construction of a statute, we

would submit that the court is failing to do its

job.

McHUGH J: Ordinarily the rule is expressed in some such

terms as, "You will follow the decision of the

coordinate court unless you are convinced it is

plainly wrong" or some such - - -

MASON CJ: That is precisely the formula used by

Mr Justice Priestley in the instant case.

MR ROBERTS:  Yes, and as we will come to, it has also been

criticized as being wrong by the Court of Criminal

Appeal just the other month, but for another reason

as I will come to in a moment. But it is certainly

different from the view, in my respectful

submission, in two respects: it differs from the

rule that the Court of Criminal Appeal adopts in

relation to its own previous decisions when it

reconsiders them, it is far more harsh, and it is

also different from the practice adopted by this

Court when it considers its own previous decisions.

It is an unusual rule developed, apparently, only

for application in the construction of Commonwealth

legislation and, as we have seen, developed because

of large numbers of cases dealing with a particular

provision in the Customs Act, dealing with drugs.

McHUGH J: But it is used in relation to uniform

legislation. I mean at the present time there is a

problem with the uniform companies legislation.
You have Metal Manufacturers v Lewis in New South

Wales, not guilty; if you are heard in Victoria,

you are guilty. There is an article in the current

Australian Law Journal about it.

MR ROBERTS:  Your Honours, no doubt that would be an ideal

matter then for the High Court to declare the law,
but it would be an abrogation of the duty of a

Court not to consider for itself what the law is.

Having in Abbrederis' case arrived at a conclusion

of what the law is, they have then said, well,
despite our views that that is the intention of

Parliament, that is what Parliament wanted to enact, we are not going to give effect to that

intention because another court of coordinate

jurisdiction has decided differently. We say that

is an abrogation of its duty and it is wrong and it
is not in the interests of justice for a court to

approach matters in that way.

Yates 4/8/92

McHUGH J: There are many decisions that judges apply that

they think are wrong .. To take a famous

illustration, I might think the doctrine of

consideration is a piece of historical nonsense

which the courts are wrongly enforcing but judges

just apply it and follow it.

MR ROBERTS:  Your Honour, a situation where a court is not

bound by a decision of another court, its job is to

interpret the law and not to constrain itself with

artificial constraints or constraints which, in

effect, say that it will follow some other decision

even if he thinks that that decision is wrong.

Your Honour, I have put a couple of cases down

here in relation to the interpretation of

Commonwealth statutes civilly just as a matter of

completeness.

McHUGH J:  I notice you have got Access Finance on the list.

I was a party to that judgment in the Court of

Appeal.

MR ROBERTS:  Your Honours, the next criminal case was

Parsons' case in 1983 in Victoria and again the

Chief Justice in Victoria said this:

A question arises, therefore, whether we

should follow this decision {R v Gardiner} or

whether we should examine the question for

ourselves. If we were to examine it for
ourselves I do not know whether I should reach
the same conclusion as that reached by the

majority of the Queensland Court.

He went on:

I entirely agree in what Street, C.J. says and

that it would be highly undesirable for one

State Full Court to place a different

interpretation upon a Commonwealth statute

from that placed upon it by the Full Court of

another State ... We are not, of course,

technically bound to apply the same principles

with reference to a decision of the Full Court of another State, but if it be desirable, as I believe it is, that State Court should give a

consistent meaning to a Commonwealth statute,

I think we should in such a case treat a

decision of the Full Court of another State

which is directly in point in the same way as

we would treat a decision of our own Court.

Could I emphasize those words because that is not

the rule that has been applied in New South Wales

because they have got a completely different rule

in relation to reconsidering its own decisions.

Yates 8 4/8/92

One is a special rule for Commonwealth legislation

and one is a general rule that applies in relation

to its own decisions.	I will come to that in a
moment.

Justice Starke in the same case, Parsons, said

this:

I agree with what has fallen from the Chief

Justice in respect of the desirability of this

Court following the decisions of the Full

Court of another State Supreme Courts

exercising federal jurisdiction. "A decision

of the Full Court of another State is always

highly persuasive. However it is not said,

and in my opinion cannot be said that it is

binding. In the rare case - and I think this

is one - where the Court is convinced that the

decision of another Full Court is erroneous

and where the principle involved is

fundamental to the administration of criminal

justice, and where to follow the other

decision is calculated to cause serious

injustice, this Court is entitled and indeed

in such a case in my opinion bound to decide

the matter for itself."

In relation to what the practice is in New

South Wales, could I just hand to Your Honours an

extract from a decision of Johns, (1978)

2 NSWLR 259. No doubt Your Honours are familiar.

In the judgment of the former Chief Justice at

page 260 reference is made to what

Chief Justice Jordan said in a case called Bridges v Bridges, this is at about line C:

In Bridges v Bridges, the matter before the Full Court involved a calling in question

an earlier Full Court decision in De Luca v De

Luca on the point of precedent. Jordan C.J. said: "Being of the opinion that the decision

of the Full Court in De Luca v De Luca cannot	be reconciled with the principle or with
earlier or later authority, I think that we
should not be justified in treating it as good
law.. I recognize that a considered judgment
of the Full Court should not be lightly
disregarded; but there is no principle in
force in New South Wales which constrains us,
as the Court of Appeal has recently held
itself to be constrained in England to follow
an earlier decision if we are satisfied that it is wrong; and I do not think that we should
tie our hands by the introduction of such a
principle."

Yates 4/8/92

Nothing about plainly wrong in relation to that.

At page 262, His Honour the Chief Justice, at

line B said:

It is not necessary to go beyond these three references to authority. The approach taken

by Jordan C.J. in Bridges v Bridges is that

which is appropriate to be applied in the

Court of Criminal Appeal. This approach is in

line with the conclusion of the majority in

Bennett & Wood Ltd v Orange City Council.

The other Justices, a joint decision of

Justices Nagle, Begg, Slattery and Sheppard, at

page 264, which is the next extracted page,

concurred with the Chief Justice in relation to
adoption of what Chief Justice Jordan had said in
Bridges.

What the Court of Criminal Appeal did in this case was to adopt, so it said, the test postulated

by Chief Justice Street in Abbrederis and add, as

Your Honours have reminded me, the question of the

appellant in that case being able to demonstrate

that it was plainly wrong. What plainly wrong

means could I just leave for a moment because I

wish to develop that and say that what it meant in
the context of that case, not that it was just
wrong, but that it was so unreasonable that the

court would be forced to do something about it.

Your Honours, the plainly wrong test is not a

test that this Court applies in relation to a

reconsideration of its own judgment and

Your Honours have considered this matter on

numerous occasions and of recent times in the

matter of John, 166 CLR 417, the tax case, and I

have just extracted a relevant passage from that

decision, if I may hand it up. In the joint

judgment, page 438 at about point 5 to 6,

Your Honours said this:  There is no doubt that this Court has

power to review and depart from its previous

decisions. However, such a course is not

lightly undertaken: see Queensland v The

Commonwealth. Although there is, in the words of Dixon J. in Attorney-General (N.S.W.) v

Perpetual Trustee Co (Ltd) "no very definite

rule as to the circumstances in which [the

court] will reconsider an earlier decision",

There are specified four matters there which

justify the departure from the earlier decision.

The first was that the earlier decisions did

not rest upon a principle carefully worked out

Yates 10 4/8/92

in a significant succession of cases. The

second was a difference between the reasons of

the justices constituting the majority in one

of the earlier decisions. The third was that

the earlier decisions had achieved no useful

result but on the contrary had led to

considerable inconvenience. The fourth was

that the earlier decisions had not been

independently acted on in a manner which

militated against reconsideration -

Nowhere there is there anything about a rule of

practice whereby somebody needs to show that it is

plainly wrong before the Court will entertain the

merits of the case. Later on in the joint

judgment, at the bottom of page 439, there is a

quote of the Chief Justice in Babaniaris where

His Honour said this:

The fundamental responsibility of a court when

it interprets a statute is to give effect to

the legislative intention as it is expressed

in the statute. If an appellate court,

particularly an ultimate appellate court, is

convinced that a previous interpretation is

plainly erroneous -

there is the word "plainly" -

then it cannot allow previous error to stand

in the way of declaring the true intent of the

statute ..... It is no part of a court's

function to perpetuate error and to insist on

an interpretation which, it is convinced, does

not give effect to the legislative intention.

Now that, of course, was not said in the context of

putting some barrier before the court would

consider the case. The Court went on:

These comments are highlighted when the Court	is called upon to consider an earlier decision	in which there was a division of opinion among
the justices of the Court constituting the majority -

Now, Your Honours, that brings me to a recent

decision of the Court of Criminal Appeal handed

down on 6 April of this year in a case called Van

Hung Mai and Another, take Your Honours to page 17 which is part of the judgment of Justice Hunt with whom the other judges

and if I could hand to

of appeal agreed. During the course of his

judgment His Honour discussed the question of the

court regarding itself as bound by previous

decisions and then later on comes to look at the

Yates 11 4/8/92

question of Yates' case itself. What His Honour

said was this:

This Court, like the Court of

Appeal ..... has never regarded itself as bound
by its previous decisions: Regina v

Johns ..... It has nevertheless departed from

previous decisions only with caution -

and I have no quarrel with that -

and only when it is satisfied that justice

seemed to require the earlier decision to be

overturned. In some cases, the Chief Justice

has assembled a court of more than three

judges to re-examine an earlier

decision ..... but this practice has been by no

means uniform -

At the bottom of the page:

This Court has always, of course, been a

court of last resort for all practical

purposes in relation to criminal matters, as

appeals to the High Court have always been by

way of leave or special leave. Such a

flexible attitude to precedent in criminal

cases in such a situation is consistent with

that of the Criminal Division of the (UK)

Court of Appeal .••.. and it is consistent with

what has been said by the High Court in Nguyen

v Nguyen.

Your Honours, we have no quarrel at all with that and we respectfully submit that is what the law

should be in relation to the construction of

Commonwealth statutes. However, if one would turn

. to page 21, in the context of examining what to do

in this case His Honour referred to Abbrederis'

case and His Honour said this:

Street CJ held that this Court should follow a

decision of the Full Court of Victoria
concerning the same provision of the Customs
Act -

sets out a passage in Abbrederis' case and a

passage from the judgment of Mr Justice Lee, refers

to Parsons' case as adopting what was said in

Abbrederis, referring to Justice Starke, and over

the page on page 22:

Regina v Abbrederis was also recently

followed by this Court in Regina v Yates

(1991) 102 ALR 673 at 679, although there was

introduced into that case a qualification to

the ordinary· practice, that such decisions

Yates 12 4/8/92

should be followed "unless there was some

reason for thinking that the earlier decision

was 'plainly wrong'". That qualification was

said to have been derived from Regina v

Abbrederis at page 542 but, with all due

respect to the members of the Court in Regina

v Yates, such a qualification is in conflict

with what was said by Street CJ (with whom

Lee J agreed), which omitted any reference to

such a qualification. It also runs completely

counter to the earlier decision itself - in

which the unanimous view of the Court was that

the Victorian decision was plainly wrong, in

one respect or another. For myself, I would

not accept either that qualification or that

which Starke J sought to introduce in Regina v

Parsons.

Now, Your Honours, what I get out of that is

this, that in effect we say that the plainly wrong

test which was postulated in Yates is to be seen in

the context of what the judgment was in Abbrederis

and that was that the Court thought that it was

plainly wrong, the decision of the Full Court in

Victoria, but refused to overturn it in its own

case because of conformity or seeking to strive for
conformity in interpretation.

MASON CJ:  Why is it not a matter for the Court of Criminal

Appeal or, for that matter, the Full Court to determine what rule it will apply·in relation to

previous decisions, whether of its own or of a

court of coordinate jurisdiction.

MR ROBERTS:  Your Honours, if the rules accord with common

sense and justice, then obviously it would be a

matter, but where there is a real conflict between

the interests of justice and the rules, then this

Court, in my respectful submission, should

interfere.

MASON CJ: But in Nguyen v Nguyen, in the joint judgment in

that case, the members of the Court said:

The extent to which the Full Court of the

Supreme Court of a State regards itself as

free to depart from its own previous decisions

must be a matter of practice for the court to

determine for itself.

MR ROBERTS:	Yes.
MASON CJ:	Why is it not likewise a matter of practice for the court to determine for itself what attitude it
will take with respect to decisions of courts of
coordinate jurisdiction?

Yates 13 4/8/92

MR ROBERTS:  It has taken an attitude in relation to how it

will consider its own earlier decisions and that it

is the attitude it has taken in Johns which is

referred to here and it has developed a rule of practice quite contrary to that, with extremely

harsh results, one would have thought, which really

have no part to play in the criminal process. In

effect, it says, we will close our eyes to what
Parliament intends when we construe a Commonwealth
statute if it has been construed by another court.

No matter how wrong it be, if we find that it is

wrong, it would have to be Wednesburywrong in

order for us to come to a different view. What we

say is that that test cannot play any part, and
should not be allowed to play any part, in the

criminal process, especially, Your Honours, since

we now have a situation where, in the High Court,

all matters are by special leave. Obviously it has

been so for a long time in relation to criminal

matters, but in effect the Court of Criminal Appeal is the ultimate court of appeal for all intents and

purposes in New South Wales and to have a rule, a

practice, that in effect closes its eyes and binds

itself in that fashion, we say, is just contrary to

the good administration of justice. And it is in

just such a case that this Court should interfere.

Your Honours, those are the matters I wish to

put in relation to the first matter. The second

matter relates to the secrecy point and this we
also rely on in its application. In effect, the
secrecy point is a corollary of the decision of
the prosecutor here to charge the applicant with

offences of false pretences - - -

MASON CJ:  Why should we take this point on? Why should we

not let the trial proceed?

MR ROBERTS:  Your Honours, if it is a good point, if it is

an important point, then we respectfully submit

that the Court should decide the law.

MASON CJ: But that is not the attitude that has been taken

by this Court in relation to questions of law that

arise at a preliminary stage.

MR ROBERTS:  I understand what Your Honour said,

particularly in relation to Yates, which of course

was in the civil sphere, perforce because it was of
administrative review, but this case clearly is

within the criminal ambit in the Court of Criminal

Appeal and because it arises at an interlocutory

stage is no reason, we would respectfully submit,

for this Court not to look at a point of importance

if it involves the administration of justice, which

we say both points do, particularly the first one.

Yates 14 4/8/92

MASON CJ:  Mr Roberts, you can see what would happen if this

Court were to embrace questions of law raised at an

interlocutory stage. Much of our work would be

taken up with applications to us designed to secure

a determination of points at an interlocutory

stage.

MR ROBERTS: This Court has considered points at an

interlocutory stage in a number of matters, but

obviously with a great deal of discretion in

relation to those matters for which special leave

was granted. I do not know of anybody, if special

leave were granted here in relation to particularly

the first point, would then rush to this Court

seeking a green light, if that is what Your Honour

is suggesting, because this Court has found that

there is a point of general administration which

requires rectifying.

MASON CJ: The whole point is that if the case goes to trial

it may be that the applicant would be acquitted on

one or more of the charges.

MR ROBERTS:  Your Honours, I have been attempting to

convince a number of courts that this case should

never have been brought in the first place because

the charges are misconceived. Charging someone

with false pretences and dishonestly obtaining a

financial advantage, when in effect what he is said

to have done wrong is not pay sales tax, or his

company, at the point when it was due. It is the

selection of the charges that have led to this, as
opposed to - it is a very unusual case in that
respect. It is a most unusual use of the criminal

law, in my respectful submission, and in relation

to the 29A point, although the Court of Criminal

Appeal in Yates said it was open to the Federal

Court to come to that view on the language, I agree

entirely it was open, but it was not open if you

apply the ordinary strictures of interpretation of

criminal statutes and if one applies the law of the

last 200 years in relation to false pretences you
just could not come to such a view.	It is the

selection of these charges, in effect to prosecute

someone for failing to pay sales tax at the point

that the money was due that has led to this.

We say that there is an injustice in bringing

these cases and I have been attempting to convince
a number of courts, without much success to date,

in relation to that matter. If an important and

serious point of principle is involved, as we

submit it is, again all I can say is the Court

should not stay its hand because this man has not

yet been convicted. In effect, that is what

Your Honour is putting to me, that a person in his

Yates 15 4/8/92

position should wait until he is convicted because

he might not be convicted in due course.

Your Honour, in effect we have got another hurdle placed in the way then of dealing with a

matter of construction of the statute. So I would

urge Your Honours not to find against the applicant

in this matter merely because he has not yet been

convicted of an offence and because it arises in an
interlocutory fashion. Because of the nature of

these charges, which are extremely unusual - or the

unusual application of the charges, I should say,

the charges are not unusual, we all know about

false pretences, and what that has got to do with

not paying sales tax one can only view the Full

Court of the Federal Court to find an answer to

that.·

Your Honours, that is the genesis of why I am

here and in relation to 178BA of the Crimes Act, it

is even worse because this is a defence of

dishonestly obtaining a financial advantage. What

we have then said in relation to that charge and

the other one, well, hang on a moment, there are

these strictures which prevent the taxation

officers from passing on this information to the police and others. You have charged this person

with obtaining a financial advantage, being a

purchase of certain goods at a price excluding

sales tax. Now, that is not a taxation offence,

and you should not then pass on this information to

the police and then come to court and give this

information in the courts as part of a prosecution

under section 178BA.

What the Court of Criminal Appeal has said, in

effect, well, we have seen what was said in the case of Stapleton back in 86 CLR about officers

giving evidence on a bankruptcy of a bankrupt and

we will apply it a little bit further and say, all

right, it applies - I think Their Honours said at

page 36: 

it is well within the performance of the
duties of an officer of the Commissioner under
those Acts to give evidence which will bring

about the conviction of a person for a crime,

which although itself of a general nature not

necessarily related to taxation, nevertheless,
in fact involves the breach of taxation law.

I am not quite sure how the 178BA offence involved

a breach of taxation law, except in so far as the

company did not have a sales tax number.

But, Your Honours, it does seem fairly

extraordinary that what has happened here is by

Yates 16 4/8/92

selection of these charges the two provisions of the law are stretched to their outermost limits,

one, the secrecy provisions of the sales tax and,

two, section 29A. We say that the Court was in

error in relation to both of those matters.

However, the 29A point is not the special leave
point in itself, it is only that we are asking this

Court to consider the barrier that the Court of

Criminal Appeal has imposed upon itself from

considering the correctness of the decision of the

Full Federal Court.

For those reasons, we say it is appropriate

for this Court, despite the fact that this man has not been convicted, to deal with these matters and to give guidance and, hopefully, to change the

direction of the Court of Criminal Appeal in

relation to its functions.

So for those reasons, Your Honours, we would

seek special leave.

MASON CJ:  Thank you, Mr Roberts. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 3.06 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.15 PM:

MASON CJ:  The Court need not trouble you, Ms Simpson.

The Court considers that the Court of Criminal

Appeal was correct in applying a rule that, as a

matter of practice, where a Commonwealth statute has been construed by an intermediate court of	appeal in Australia other intermediate appellate
courts of coordinate jurisdiction should accept and
apply it unless it is plainly wrong or given per
incuriam, so long as it is permitted to stand
unchanged either by the court of origin or by this
Court.

With regard to the point in relation to

s. 10 of the Sales Tax Assessment Act (No.l) 1930
(Cth), the Court considers that it would be

inappropriate to grant special leave to appeal at

this stage of the proceedings.

The application is therefore refused.

Yates 17 4/8/92

MS SIMPSON:	I make an application for costs, Your Honour.
MASON CJ:	What do you say about that, Mr Roberts?

MR ROBERTS: It is a criminal case, Your Honour.

MS SIMPSON:  I do not know if Your Honour wants to hear me

on the question.

MASON CJ: Yes.

MS SIMPSON: It is to be noted, Your Honours, that this is

the second time that at least one part of this

application has been brought before this Court and

has received the same reception. The secrecy

point, which was the new point raised today, was

always available though not taken by the applicant

at any previous time.

MASON CJ: But it still is a criminal case.

MS SIMPSON: It still is a criminal case, Your Honour. It

is my submission, though, that there has been a

double lot of costs incurred by the fact that this

has been brought before the Court on two separate

occasions, relitigating, essentially, identical

issues.

MASON CJ: The application will be refused. There will be

no order as to costs.

MS SIMPSON: If Your Honours please.

AT 3.16 PM THE MATTER WAS ADJOURNED SINE DIE

Yates 18 4/8/92