Huat v The Queen P19/1993 [1994] HCATrans 98 (26 October 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P19 of 1993 No C17 of 1993

B e t w e e n -

TAN HAI HUAT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 26 OCTOBER 1994, AT 12.04 PM

Copyright in the High Court of Australia

MR P.W. NICHOLS: May it please, Your Honour, with my learned friend, MR T.F. PERCY, I appear for the applicant. (instructed by Phillip Kelly & Co)

MR S.W. O'SULLIVAN: If Your Honours please, I appear on behalf of the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

MR NICHOLS: Your Honours, the special leave point in this matter is that in R v Shrestha this Court has laid down the principles applicable to the decision of whether or not to grant eligibility for parole, and that they must be based predominantly on matters personal to the prisoner. In particular, they must exclude the fact that the prisoner is a foreigner who has entered this country with his eyes open for the purposes of committing a crime.

The error in this case is said to be twofold on the part of the majority of the Court of Criminal Appeal. First, although they took account - - -

TOOHEY J: Could I just interrupt you, Mr Nichols, we have a document which, I think, came in this morning, headed Amended Ground of Appeal, with just one ground. Is that by way of complete substitution?

MR NICHOLS: Yes, Your Honour.

TOOHEY J: Thank you.

MR NICHOLS: When Mr Percy and I saw the original grounds for appeal we were of the view they were misconceived and we should proceed on the amended ground only.

The error of the majority of the Court of Criminal Appeal was to import the principles in Chan's case into that decision to refuse parole, and thereby to bring into consideration the conduct of the appellant and the part he played in the commission of the offences form part of the antecedents. It is true that in Shrestha's case, Your Honours, in particular the judgment of Justices Deane, Dawson and Toohey, held that you could take into account matters relating to the crime, but it is clear that they predominantly were concerned with taking into account matters personal to the prisoner.

In this case a different view, at the Court of Criminal Appeal, was taken by Mr Justice Rowland who said, first of all, that there was no substantial difference between the accused, Mr Tan, having entered this country than if Mr Tan had been a New South Welshman and he had entered Western Australia to commit a crime and, secondly, that he would have been eligible for parole in Western Australia under the ordinary criteria. It is strongly urged upon this Court that that was the correct test and, in particular, that the use of the words of Chan, which I have quoted, to bring in criteria in relation to the crime, is an incorrect principle.

In particular, I would seek to draw to the attention of the Court the decision at page 71 of Shrestha that it is because of treaty obligations that we now are obliged to deal with prisoners exactly the same no matter what their origin and nationality. That is the supreme consideration in cases of this sort and it is therefore quite inappropriate to import the notions that Chan has imposed in its place. In this decision the Court did not have the benefit of Shrestha's case, they had the benefit of the Full Court's decision in which the Full Court none the less gave credence to Chan as still having some role of guidance to the Court. That is the essential ground that we seek to justify special leave, Your Honours.

McHUGH J: Have you not got a problem about extension of time, I mean this - - -

MR NICHOLS: Yes, indeed, we do have a substantial - but I would say this - - -

McHUGH J: You were denied legal aid as long ago as July 1991, and you ultimately get leave to deal with a case decided after the judges dealt with this case.

MR NICHOLS: It is a question of whether you were sufficiently moved by the grant of special leave to consider that a secondary matter, but I would concede that there are certain difficulties in the effluxion of time. He has been denied legal aid, he has been a prisoner arguing on his own behalf and, until recently, to say exactly until about a matter of a week or so, he has been entirely without assistance.

TOOHEY J: I take it you are not saying, Mr Nichols, that the decision in Shrestha dictates a contrary result to that reached by the Court of Criminal Appeal?

MR NICHOLS: No, it does not, but the question - - -

TOOHEY J: But, indeed, the way in which your now ground of appeal is formulated does seem to go to questions of weight rather than questions of principle.

MR NICHOLS: Yes, but there is a question of principle. The Court must look predominantly to questions personal to the prisoner. They must not look predominantly to questions of the crime itself, and that is the question of principle that I would seek to urge upon the Court was breached here.

In Shrestha's case the particular fault was stated to be the treating of the prisoner as a separate category because he was a foreigner and had come to the country with the purpose of committing crime "with his eyes open", to quote the words of Chan. That was definitely ruled out of order, and to the extent to which Mr Justice Franklyn in particular introduced it in the Court of Criminal Appeal, then it is stated that His Honour was wrong in principle. Your Honours will find that particular passage at page 71, in particular about line 7 or 8 from the top.

GAUDRON J: But you do not say that that is what has happened here, do you?

MR NICHOLS: It did not happen precisely that way, but His Honour did refer to Chan as being a guiding principle, and I have quoted the passage in the summary of submissions, in particular my paragraph 3 of the summary, His Honour says:

The nature of the offence is such that deterrence looms large in the sentencing process where an applicant has resorted to the country to earn money illegally (Chan supra, Wallace J at 347). The conduct of the appellant and the part he played in the commission of the offences formed part of his antecedents. Even with no history of prior convictions neither his antecedents nor the nature or circumstances of the commission of the offences considered alone or together render the making of the orders appropriate.

And, I quote:

He came to Australia with his eyes open for the express purpose in assisting in taking possession of the heroin from the ship and transporting it across Australia to Sydney for distribution. He took his chance on the question of penalty. There is nothing in my opinion which calls into operation any of the criteria set out in s 37A(3).

That does seem to be a breach of the principle laid down in Shrestha, if my reading of page 91 is correct.

In other words, what has been done is everyone has paid lip-service to the principle of equality of treatment, and then sought to introduce inequality of treatment via the back door. Of course the question of whether or not the prisoners should be treated separately, having come to Australia with their eyes open et cetera is, of course, an arguable one but really, in my contention, the High Court has laid to rest that debate. It seems that we are now obliged to follow the criterion laid on 91 expressly.

There is one other matter which is relevant to this. I should point out that as far as my junior's search of the records are that the first application was made 15 days after said sentence, after the Full Court decision. That, it seems to me, are the substantial criteria.

Now, there is one other matter which I wish to deal with, how should the Full Court have dealt with this matter? How should the Court of Criminal Appeal have dealt with this matter? It is my contention that they should have put out of their mind any question of the prisoner having come to Australia because that is laid to rest. What they should ask themselves, "Has this man any eligibility for parole under the ordinary criteria?", leaving aside from the fact that he is from overseas and may be deported. Is there any eligibility for parole? And, having come to the decision that there was, they should have made him eligible for parole, as Mr Justice Rowland suggested in his reasons and, indeed, we strongly put forward Mr Justice Rowland's reasons in support of the view that he should, in fact, have been granted parole, and that the court misled itself by too heavy reliance on Chan's case. At page 39 the comment made was:

if he were an Australian citizen, eligibility for parole would, in all probability, have been granted.

That is page 39 of the application book. Those are the words of Mr Justice Rowland, but he went on to say over the page:

Counsel for the Commonwealth Crown submitted that foreigners could be more easily recruited if it was seen that they could obtain the benefit of parole. I have difficulty with that submission. I suspect that fact is irrelevant; but, without really knowing, I suspect that persons, both within and outside Australia, are recruited because they do not believe they will be caught -

and, His Honour, at the foot of page 40, went on to remark on matters personal to the prisoner which should have given the Court of Criminal Appeal grounds for pause, in my respectful submission. Those are my submissions, if the Court please.

TOOHEY J: Thank you, Mr Nichols. The Court need not trouble you, Mr O'Sullivan.

The applicant was sentenced to substantial terms of imprisonment in relation to two offences relating to heroin, one a Commonwealth and the other a State offence. The trial judge declined to exercise his discretion to order that the applicant be eligible for parole. While His Honour did not elaborate his reasons for declining to exercise his discretion, he was clearly influenced by the seriousness of the offences and the fact that the applicant took part in the importation of a quantity of heroin said to be the biggest amount detected in this State. These were matters which were clearly in the mind of the majority in the Court of Criminal Appeal in rejecting the appeal to that court. In all the circumstances we are not persuaded that there was any error of principle on the part of the trial judge or the Court of Criminal Appeal. The application for an extension of time is refused and accordingly the application for special leave to appeal itself is also refused.

AT 12.19 PM THE MATTER WAS ADJOURNED SINE DIE