Pehlivanides v The Queen A58/1996 [1997] HCATrans 283 (4 September 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A58 of 1996

B e t w e e n -

STEVE PEHLIVANIDES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 4 SEPTEMBER 1997, AT 12.11 PM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC: If the Court pleases, I appear with my learned friend, MR J.D. EDWARDSON. (instructed by Condello & Co)

MR B.M. SELWAY QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR J.C. WELLS, for the respondent. (instructed by Mr Paul Rofe, QC, Director of Public Prosecutions)(SA)

BRENNAN CJ: Should we have Hill's Case called at the same time, or is it better to leave them separate?

MR ABBOTT: I will be referring to the decision of the Full Court in Hill during the course of my submissions in Pehlivanides and, to that extent, they are not discrete.

BRENNAN CJ: But there are separate issues in Hill?

MR ABBOTT: There are separate issues, and I would like to argue Pehlivanides first and then Hill, if I may?

BRENNAN CJ: Yes, very well.

MR ABBOTT: In our submission, there are three questions of law which warrant the grant of special leave. The first question may be phrased thus: "Can the Court supply rules of statutory construction to cure executive inaction or omission when otherwise the statute provides a framework which achieves the purpose of the legislation and - to use the words of a former Chief Justice, Justice Gibbs - `can be intelligibly applied to the subject matter with which it deals'?"; that is, in this case we submit that the executive had it within their power to carry out the will of Parliament, but did not and, in those circumstances, the question is whether the judiciary can, by the application of rules of statutory construction, make up for the deficiencies of the executive.

KIRBY J: I understood that you put it in a slightly different way; that Parliament had empowered the executive to complete the statutory scheme and had set up this special advisory body for the purpose of doing so and that, with such specificity, it is not a court's function to step in, by the usual rules of statutory construction, to fill a gap which Parliament provided expressly for to be filled in a particular way - and not by the judiciary, but by the executive.

MR ABBOTT: Exactly. The second question is, the statutory construction approach which was adopted by the Full Court was the so-called "purposive" approach. That purposive approach was, until the passage of section 22 of the South Australia Acts Interpretation Act, a common law rule of statutory construction, and the second question of law is, in our submission, whether the Court can apply the common law purposive approach when Parliament has specifically legislated for a purposive approach to be used, but so as not to create or extend criminal liability.

Section 22 of the South Australia Act differs from all other comparable provisions around Australia - except in the case of the Northern Territory, where there is no statutory enactment - by the fact that our section 22 has subsection (2) and, by the requirement in our subsection (1) that there must be another construction reasonably open, in a sense that those words appear in subsection (1). So, that is the second question. I will endeavour to elaborate on that.

The third question, which we say is of equal importance, is this, that part of the ratio of the decision in this case was that the words "in any other case" should be inserted before section 32(5)B et cetera, et cetera. And I refer the Court to the statutory materials which we filed in the matter of Hill, but which I have asked be available in the matter of Pehlivanides, to page - - -

KIRBY J: I think Chief Justice Hill agreed in Hill that what he had said in Pehlivanides was not - - -

MR ABBOTT: Yes. Well, at pages 5 and following of those statutory materials we have, for the convenience of the Court, added in to the sections the words which the Chief Justice wanted to add in in the case of Pehlivanides and, also, the words which he, upon reconsideration, wanted to add in as a consequence of the decision in Hill.

KIRBY J: The problem is taking words out. You have got to take words out, not add words in.

MR ABBOTT: Exactly. But if you look at page 5 of this book of statutes where we have done this, you will see that the words "in any other case", which he wanted to add in Pehlivanides, make the rest of the words that precede the words:

a penalty not exceeding $200,000 -

otiose. So, not only did it not work - --

KIRBY J: But it is in any other case other than one where the amount has been prescribed as in (i), and that has not been prescribed.

MR ABBOTT: No.

KIRBY J: That is the problem.

MR ABBOTT: Exactly.

KIRBY J: But the offence seems to be completed. The statute provides for the offence and a penalty, and you cannot just walk away from the fact that your client had been convicted of an offence. There must be a common law solution to the provision of a penalty for a statutory offence.

MR ABBOTT: Well, that may be so, but his Honour - - -

TOOHEY J: It is accepted, is it not, if you look at the orders sought in the notice of appeal, page 44:

That the judgement of the Court of Criminal Appeal of the Supreme Court of South Australia be set aside, that the applicant be resentenced in accordance with the orders of this Honourable Court.

I mean, that assumes that the statute is at least effective in creating an offence. It leaves open the question as to whether it is effective in permitting a penalty.

MR ABBOTT: It creates a penalty, yes.

KIRBY J: Has the executive government now provided the differential provisions in the sections?

MR ABBOTT: I am hesitant to give evidence from the Bar table, but the matter is under immediate review by the - - -

KIRBY J: But would not be what would happen? You see, this is testing the practicality. If we set aside the order as not by law made, it would go back to a court to resentence, and would not the sentence then be imposed in accordance with the law as then standing?

MR ABBOTT: Well, that may or may not be the case. But could I just raise the third question because, if you accept that the ratio of the case is essentially that the words "in any other case" be imposed - and that seems to be clear from the application book, page 34 - his Honour, at line 25 said:

I have added the words which, I consider, Parliament did intend to add to cover a situation to which it had adverted.

And then he concluded, at line 35:

It follows that the sentence was validly imposed.

It would, in our submission, taking into account what was conceded by his Honour - or at least said by his Honour in Hill- lead to the result that the decision is flawed and that, of itself, in our submission, should lead to the grant of special leave, and the quashing of the sentence.

BRENNAN CJ: Just pausing there for a moment. If we are concerned with the sentence only we start with the proposition of a conviction, and that is not challenged?

MR ABBOTT: Not on this application. We have not put in a ground referrable to a conviction, because we have proceeded on the basis that section 32(1) provides for the creation of an offence, and section 32(5) creates a penalty for an offence.

BRENNAN CJ: So, we have an accused who has been convicted of an offence. The next question is, is he liable to any penalty?

MR ABBOTT: We say no.

BRENNAN CJ: None at all?

MR ABBOTT: None at all.

BRENNAN CJ: What is the nature of an offence?

MR ABBOTT: Well, I argued that you could not have an offence without a penalty.

BRENNAN CJ: And yet, you do not challenge the conviction.

TOOHEY J: More than that, that you ask that he be resentenced.

MR ABBOTT: I am sorry, your Honour.

TOOHEY J: The notice of appeal asks that he be resentenced.

MR ABBOTT: Yes.

KIRBY J: That seems a generous gesture on your part.

MR ABBOTT: Probably too generous.

BRENNAN CJ: Is not the situation this, that you have an offence created by the statute and by the regulation which prescribes the substances, and you have a person convicted of that offence? The problem is to determine what, if any, are the limits of the sentencing power which the court possesses in respect of that conviction. Now, the sentencing power, it seems to me, could be construed, or could be ascertained in one of two ways. One can say there is nothing in the statute which effectively covers the situation, so one goes to the common law and, if one goes to the common law, then assumedly the result is that the sentencing power is at large.

The alternative is one goes to the statute, and one sees there a complete dichotomy; the amount above and the amount below, a prescribed amount. Nothing is prescribed, therefore, one does not know where the upper and the lower limits start and finish. But at all events, whether it is upper or whether it is lower, it certainly includes the lower, so that is the limit of the power. One does not have to go into questions of construction of the statute, one just simply looks to the extent of the power. Now, what is the fallacy?

MR ABBOTT: There is no fallacy in that, but what has happened in this case - - -

BRENNAN CJ: Were you not sentenced within the lower range?

MR ABBOTT: No. Well, we were sentenced on the application of the lower range.

BRENNAN CJ: That is right.

MR ABBOTT: But the fallacy is that no amount was prescribed and, therefore, there is no way in which a decision can be made whether we are in the upper or lower. Now, until the advisory council does its work, then we say you cannot pray in aid rules of statutory construction to fulfil legislative inaction or omission.

BRENNAN CJ: Well, you have not been prejudiced. You have not been sentenced in the upper and, if this was ever prescribed and you were found to be in the upper, only then could you complain if you were sentenced on the higher range.

MR ABBOTT: But we do not know what would be the lower. The lower might be nothing.

BRENNAN CJ: But you are in that situation anyhow.

KIRBY J: It cannot be nothing, because the lower is 25 years or a $200,000 fine. So, it cannot be nothing. You cannot be subject to no penalty.

MR ABBOTT: Well, in our submission, in using the Acts Interpretation Act, and in view of what the court did in Hill in relation to this judgment, Mr Pehlivanides has, in fact, been denied, in essence, natural justice. The decision in Hill - there are two pages I would like to refer to of the application book in Hill - - -

KIRBY J: But let us look at it, just for the moment, from the special leave point of view. This is a South Australia statute, with an obvious slip, if anything. It is not a deliberate thing; it is something where there has been a small slip that has occurred. There is a lower range. You have been sentenced within the lower range. No apparent mischief was done. If it was sent back for resentencing, as you say, your client would, or may well fall within the new provision as remade, and that would cure it. So, it is really - there is just no merit in what you say, and it is only a local statute and a local problem that, presumably, could readily be cured.

MR ABBOTT: Well, it depends what the advisory council do.

KIRBY J: But if they perform their function as Parliament envisaged, they cannot (a) refuse to prescribe, if they are given that function, or (b), if they do prescribe, not prescribe a second category. The second category is the lower category, and let us acknowledge it, the amounts afforded in the second category a very high; $200,000, imprisonment for 25 years.

MR ABBOTT: But at present they do not have to do anything because, as a result of a judicial amendment of the section, there is - the work of the advisory committee, effectively, so far as the penalty provisions are concerned, has been ousted by the combination of a decision in Pehlivanides and the subsequent decision in Hill.

KIRBY J: But it cannot be the function of an advisory committee, appointed by the executive, to frustrate the will of Parliament, which is that there should be this offence, of which your client has been convicted, and that there should be a penalty for it, a significant penalty.

MR ABBOTT: I am not suggesting it is the function to frustrate the will of Parliament. What I am suggesting is that by judicial intervention, we have a situation now where, by force of the judgment, the penalty is created for all offences, whether the council has done its work or not. And moreover, the way in which the decision in Hill was reached, we say raises important special leave issues, which I will come to - - -

KIRBY J: That is a different question.

MR ABBOTT: Yes. So, could I briefly identify my objection to the purposive approach which was adopted by the Chief Justice in this case? He said at page 142 of the application book, of his decision in Hill's Case, when he was dealing with what he had said in the Pehlivanides Case, that he adopted the purposive approach as a common law principle of interpretation and not in reliance upon section 22 of the Acts Interpretation Act. He said:

To the extent that that renders that provision unnecessary, and its restriction inapplicable, that is simply a consequence of the legislative provision lagging behind the common law.

It would be our submission - - -

KIRBY J: It is a red herring though, is it not, because it has been pointed out by Mr Solicitor that there are a number of cases in this Court and other Australian courts where there has been a slip and the courts have endeavoured to make the legislation work in the way that Parliament intended? It is not unknown.

MR ABBOTT: No, but the issue is whether the Court should intervene to correct this slip and how the Court should intervene.

BRENNAN CJ: It is not a question of the Court intervening. The Court is not doing any intervention and the problem that you are addressing is one of statutory construction. Now, the question really is does any question of statutory construction arise or necessarily arise, and if the real question is what is the scope of the sentencing power, and it is either at large or is the minimum, then the question does not arise.

MR ABBOTT: In that case the decisions should not stand because they proceeded - that is both Hill and Pehlivanides - on this issue should not stand because they proceeded on an incorrect basis.

BRENNAN CJ: No, because whatever the basis might be on which they were reached, the point to which they did attain was that the sentencing power was no greater than the minimum, so that no injustice has been done by adopting that approach.

MR ABBOTT: I can only say that we have looked at this slightly differently from terms of principles of importance.

BRENNAN CJ: Of course, you have looked at it from the point of view of the method of statutory interpretation that was adopted and you have been able to identify some difficulties in the expression of the opinions in the courts below. That does not immediately justify a grant of special leave.

MR ABBOTT: Worse than that. We say that the purposive approach was adopted as a means of curing executive inaction when there was absolutely no need for it and the basis that underpins - - -

KIRBY J: Unless some endeavour was made to have the legislation work either by the meaning of the legislation or by some purposive principle, then - I mean, Parliament has provided for this serious offence with high penalties, including in the lower range, and your client either, (a) walks away or, (b) is at large or, (c) the sentencing power must be the lesser of the two that Parliament has provided.

MR ABBOTT: That is so.

KIRBY J: He is not going to walk away.

MR ABBOTT: Well, maybe, maybe not.

KIRBY J: And if, as you so plaintively ask, we send it back to be resentenced, he could, one would assume, be resentenced under the legislation as it then stood.

MR ABBOTT: It is only this: they may not change the legislation. They may merely get the advisory council to do its work. The legislation, in fact, works quite well as is witnessed by the case of other drugs, LSD, et cetera, in respect of which the advisory council has done its work. There is no problem with those drugs. The problem is with the drugs that are in issue in this case and in the case of Hill. We say that the issue of public importance is when the legislation is working, when it works with some drugs and it is merely a question of executive inaction, what role is there for the Court to step in and say, "We'll step in to cure what the executive has not done"?

BRENNAN CJ: I think the problem really is, Mr Abbott, that you are endeavouring to transform the question of sentencing power into one of constitutional gravity.

MR ABBOTT: I am endeavouring to certainly elevate it to being worthy of a grant of special leave, yes.

BRENNAN CJ: Yes, and if I may say so, doing so most manfully but I doubt whether you have made it.

MR ABBOTT: Your Honour, they, essentially, are, as we see it, the three questions. Either this Court has a role in curing executive inaction in a statute that works and has worked and can continue to work. If the Court has no role, then that, we say, should be articulated by this Court. If the Court does have a role, then the application of the purposive approach, in our submission, was entirely incorrect in the form in which it was done in both Pehlivanides and, as I will say in a minute, in Hill. So that whichever way you look at it, the court approached this in an incorrect manner. First of all, they intervened, then they intervened - sorry, I will withdraw the word "intervened". First of all the court considered the matter - - -

KIRBY J: That may or may not be so. As the Chief Justice has pointed out, the issue before this Court in looking at the special leave is whether not the reasoning is right but whether you have a proper complaint about what the ultimate order is and whether there be any real prospective that this Court would change that order.

MR ABBOTT: The complaint that Mr Pehlivanides has is that he received a judgment which, on appeal, said, the sentencing process is correct. He then finds that in another case where he was not represented which was nothing to do with him, the Full Court has said, "Well, we've got it wrong in Mr Pehlivanides case. We in fact shouldn't have done what we did do. We should have had different words and we recognise that all we set out to do had to be done another way", and Mr Pehlivanides says, quite properly, "Well, I was not represented there. I had no opportunity of addressing the court. The court was functus officio so far as my case was concerned and yet by a side wind, if you like, they have overruled the decision in my case and that is a matter that should only be done by this Court." I say that with respect. Mr Pehlivanides says, "In those circumstances, if the decision in my case is to be overruled, then it should be overruled properly" and that is why he seeks - - -

KIRBY J: But the answer to all that is, which no doubt you will convey to your client, that all that has been changed is some of the reasoning on the pars.....to the order, not the entitlement of the court to proceed to a sentence within the range, the lower range, that Parliament provided because Mr Pehlivanides, as you have said, was convicted and he cannot just walk away from his conviction. Some provision, either by the common law within the lower range of the sentence provided by Parliament has to be provided.

MR ABBOTT: Yes, but he has never been sentenced according to the common law and the issue of what he might or might not get, assuming that the alternative is that sentencing at large has never been addressed and he has never had the benefit of that.

BRENNAN CJ: "Benefit", did you say?

MR ABBOTT: Well, given the penalty that was handed out, I think it is a word that one can use with some qualification.

BRENNAN CJ: He might find some consolation when he sees the fate of Mr Hill. Have you another point apart from this in relation to section 78B?

MR ABBOTT: No, your Honour, no, so those are my submissions.

KIRBY J: Does the second point that arises in Hill come up in your case?

MR ABBOTT: The second point in Hill? No, your Honour, it does not arise.

KIRBY J: So, you have said everything that needs to be said on this application?

MR ABBOTT: I have said everything that needs to be said in terms of articulating the questions that we see are of importance in Pehlivanides. If the Court pleases.

BRENNAN CJ: Thank you, Mr Abbott.

The application does not enjoy a sufficient prospect of success to warrant a grant of special leave. For that reason, special leave is refused.

AT 12.35 PM THE MATTER WAS CONCLUDED