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High Court of Australia Transcripts |
Adelaide No A8 of 1999
B e t w e e n -
YU SHING CHENG
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Adelaide No A9 of 1999
B e t w e e n -
GANG CHENG
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Adelaide No A25 of 1999
B e t w e e n -
BACH AN CHAN
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 4 APRIL 2000, AT 10.17 AM
Copyright in the High Court of Australia
MR M.F. GRAY, QC: May it please your Honour, I appear with my learned friend, MS F. PROPSTING, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: May it please the Court, I appear with my learned friend, MS M. SLOSS, for the Attorney-General intervening. (instructed by the Australian Government Solicitor)
GLEESON CJ: Yes, Mr Gray.
MR T.A. GRAY: May it please the Court, the indictment laid in this matter appears at pages 1 and 2 of the application book. I say "indictment". It is termed "information" but the practice in South Australia is for all matters to be laid by information and all matters in the nature of indictment are laid by information. That matter was touched on by this Court in Byrnes and Hopwood when the particular matter was addressed.
KIRBY J: Is there a definitional provision that deems an information to be an indictment?
MR T.A. GRAY: Not in those precise terms but I will obtain a reference to the section and have the Court informed of that a little later.
KIRBY J: Because it is an important part of your argument, as I understand it, that this was a prosecution on indictment.
MR T.A. GRAY: Yes, indeed, and it was certainly treated relevantly as such. If the Court pleases, this issue about indictment, information or presentment was discussed by, for example, Justice Deane in Kingswell, by Justice Dixon in Lowenstein, making the point that the actual label does not matter in terms of the form of indictment. What is presented here does fit the traditional concept of indictment under the common law.
KIRBY J: Why is South Australia different in this regard? Is there some history as to why they use this word "information"?
MR T.A. GRAY: If the Court pleases, various jurisdictions use words such as "information" or "presentment". Others use the word "indictment" and they refer to the same matter, that is the formal charging by a public officer in regard to a serious offence where serious penalties are involved.
KIRBY J: One would think that the Constitution addresses the substance and not the nomenclature.
MR T.A. GRAY: Indeed. If the Court pleases, in the indictment at page 1 the Court will see two counts. In each instance there is a statement of offence and then particulars of the offence. The statement of the offence in regard to count 1 picks up and draws on the precise language of section 233B(1)(d) of the Customs Act 1985 . The particulars would appear to pick up matters from section 235 dealing with the question of aggravation in regard to penalty, in particular, picking up that part of section 235 which deals with "commercial quantity".
The second count relates to a charge of possession that in the events result in a nolle being entered. The Court would note that the relevant quantity is changed in the importation count. It is 9.35 kilos or "9350 grams". In the possession count it is "25g". The reason for the difference is that before the pedestals containing the heroin were collected by the applicants, the authorities had removed - had detected the importation of the drug, had removed all of it and had replaced a small portion. So, at the time that possession was taken of the pedestals in which the drug was contained, by that time, the weight had changed and hence the reason for the different expression in the counts.
KIRBY J: What is a pedestal? Can you explain that?
MR T.A. GRAY: Yes, there were five pedestals, or columns, which were being imported within which there was the drug concealed. Pre being sent they had been opened and the material placed inside and they have been closed up carefully. When the drugs came in, a sniffer dog detected the appearance of a drug. The pedestals or columns were examined and fine cracks were shown which allowed then the authorities to further explore the matter, open them and find the heroin concealed. It was then removed, replaced in part with a sugar substance as well, but ultimately approximately 25 grams were replaced. So as far as possession was concerned, when the pedestals were collected, only a trafficable quantity was within them rather than a commercial quantity. That has some relevance in regard to the issues about intent.
If the Court pleases, the history of the matter below was that right from the outset a point was taken by way of demurrer and then by way of, under the rules, an application to quash the indictment on the basis that section 233B was unconstitutional. The argument that was put was essentially put in writing and is in the application book commencing at page 12 and continuing through to page 19. The argument attacked section 233B(1)(d), but when one goes to the content of the argument, it attacks it by first attacking section 235 and, in effect, putting the minority position from Kingswell and saying that in the light of subsequent developments as to the approach of the interpretation of the Constitution, the matter of Kingswell cannot stand against those later cases.
Justice Debelle heard the demurrer and the application to quash and rejected it. His reasons appear at pages 58 to 60 of the application book. Essentially his Honour took the view that despite the shift in regard to the approach of the interpretation of the Constitution identified in Ha's case - this is page 60 of the application book - despite that, it could not be said that Kingswell did not bind him and, as a result, the demurrer and the application to quash the indictment was overruled.
As a consequence, the applicants then said in accordance with Kingswell, on the facts they admitted, they were bound to plead guilty to the count 1. They took issue with the matter of aggravation. Now, if the Court pleases, each of the applicants, in regard to that aggravation, had a slightly different position. Mr Yu Shing Cheng's position was - - -
KIRBY J: Could I just interrupt to ask, because it worried me on the earlier applications before Justices Gaudron and Hayne and myself, and I notice it has been picked up at the end of the Commonwealth's submission, what follows from the plea of guilty? I mean, is the issue, and I am not sure what orders you are finally seeking if special leave were granted and the appeal upheld, but as your client has pleaded guilty to the offence, why is it open to challenge the basis on which the offence was framed? Is it still a matter of practicality, given the plea of guilty?
MR T.A. GRAY: No, with respect, the plea of guilty was, as it were, under sufferance to the ruling on the demurrer. The primary position of each of the applicants was section 233B(1)(d) was unconstitutional and bad.
KIRBY J: But could you not have asked the court to postpone the taking of the plea in order to test this proposition in this Court?
MR T.A. GRAY: That course could have been taken, it was not, but, right from the outset the applicants and each of them maintained that the section was unconstitutional and their plea was so conditioned on the demurrer being rejected. When this matter was raised in the intermediate court, the court took the view that it was appropriate to allow the conviction to be challenged, although the conviction was rejected, on the basis that this point was taken by way of demurrer and the plea that followed was conditioned on the rejection of the demurrer. Now, if in fact there was some better procedural way to be followed, it was not, but, it is very plain from the entire transcript that right from the outset this point was being taken to be preserved.
KIRBY J: I realise that, but it is somewhat awkward to be dealing with a constitutional point which, as it were, says that you should not have been put in this spot when, in a sense, at least arguably, you have accepted the spot and pleaded to the charge.
MR T.A. GRAY: We accept the history of what has happened but we say that the acceptance of it was conditioned on the demurrer being rejected because, once the demurrer is rejected, the applicants, in accordance with Kingswell, had no defence to the count.
GLEESON CJ: What are the facts that were admitted by the plea of guilty?
MR T.A. GRAY: We would say that they are, if the Court would go to count 1, the first count, that, for example, Yu Shing Cheng admitted to "BEING KNOWINGLY CONCERNED IN THE IMPORTATION OF A PROHIBITED IMPORT".
GLEESON CJ: And did he admit the particulars?
MR T.A. GRAY: The matter of the weight was not in issue. What was in issue was his - - -
GLEESON CJ: You keep using this expression "in issue".
MR T.A. GRAY: I am sorry, your Honour.
GLEESON CJ: I am trying to work out what were the facts that were formally admitted by the plea of guilty.
MR T.A. GRAY: In the case of Yu Shing Cheng, he admitted that he was knowingly concerned in the importation of a prohibited import but he disputed any awareness or knowledge that it was other than two small packets of cocaine.
GLEESON CJ: So the plea of guilty did not carry with it an admission that he was knowingly concerned in the importation of 9.35 kilograms?
MR T.A. GRAY: In fact, that was specifically in contention.
KIRBY J: Did you then ask that that fact be tried by a jury?
MR T.A. GRAY: No. What happened there as far as Yu Shing Cheng was concerned was that Justice Debelle, the sentencing judge, accepted his version and we say it was not put in contest by the Crown.
KIRBY J: What, that the amount was not of the order of 9,350 grams but some smaller - - -
MR T.A. GRAY: No, that he was not knowingly concerned in the importation of an amount of 9.350 grams. In the case of Gang Cheng, his position was similarly that he believed at all relevant times there was an unidentifiable small parcel of drugs, and the judge accepted that.
In the case of Chan, he said that he believed there was a kilo of cocaine involved, and the judge said that he would not accept that assertion, and the matter went to evidence before the judge. Might I say, if the Court pleases, in accordance with Meaton's Case and South Australian Full Court authority, the matter plainly should have gone to a jury, not to a judge alone. But if the Court pleases - - -
GAUDRON J: That depends, does it not, on the correctness of Kingswell?
MR T.A. GRAY: Indeed.
GAUDRON J: If Kingswell is correct, notwithstanding what was said in that case about it being properly left to the jury, there can be no basis for it being left to the jury. Section 235 indicates quite clearly otherwise, does it not?
MR T.A. GRAY: Yes, save this, if the Court pleases, that in Kingswell the majority took the view that the rule of practice in the Queen v Bright should have application. That rule of practice is that it is a matter of aggravation that it goes to increased penalty if it does not create a new offence, it should be referred to in the indictment and decided by the jury, as a matter of fact.
In Meaton's case it was suggested that, on a plea of guilty, but a dispute about the matter of aggravation, that that matter should be decided according to the State practice involved. In South Australia, Chief Justice King, speaking for the Full Court with the dissentient, Justice Prior, said that such a matter must go to a jury. And, in fact, it creates the paradox referred to in our reply that Parliament, on the one hand, says this matter is a matter for the sentencing judge, but the ruling practice in Bright's Case coupled with the practice in South Australia leads to that matter being dealt with by a jury.
GAUDRON J: Now, is there a definition of "the Court" in the Customs Act, because section 235(2)(c) says it is "where the Court is satisfied"?
MR T.A. GRAY: Yes. No, there is no definition. But in Kingswell the entire Court took the view that "Court" in 235 referred to the sentencing judge, as a matter of construction on the section.
GLEESON CJ: Well, not just as a matter of construction because, usually, it is for the sentencing judge to determine the facts relevant to sentence.
MR T.A. GRAY: Yes.
GLEESON CJ: Within the bounds of the jury's verdict.
MR T.A. GRAY: Yes, indeed. But, in particular, the Court in Kingswell took the view there were other indications in the section itself that led, inevitably, to the conclusion that "Court", referred to in section 235, referred to the court sentencing, the judge alone. In particular, the wording of subsection (4). So, although the question of aggravation was put in dispute by each of the applicants, the matter was resolved by the sentencing judge by accepting what two of them said. In regard to the third, Chan, the judge said that he would not accept that without there being a testing of it. Sworn evidence was given before his Honour. His Honour rejected Mr Chan's account.
GLEESON CJ: Now, just in relation to the first two of them, they pleaded guilty and they were sentenced on the factual basis to which they had admitted.
MR T.A. GRAY: Yes, by Justice Debelle.
GLEESON CJ: What is the result you are trying to achieve by way of proceedings?
MR T.A. GRAY: Well, in the intermediate court, the court said that Justice Debelle had erred in that approach and proceeded to sentence them on an alternative basis, without their giving sworn evidence, without there ever being a hearing before a judge or jury.
GLEESON CJ: My question was, what is the result you are seeking to achieve?
MR T.A. GRAY: I am sorry. The primary result we seek to achieve is a declaration that section 233B(1) and 235 are unconstitutional, with a result that the indictment in this case, the conviction be quashed and the indictment would be quashed, and my clients would then face whatever due process the regulatory authorities would bring. Alternatively, the submission is put that if section 235(c) and (d) are bad and can be severed, then there would be a conviction and a sentence under subsection (e), which would lead to a maximum imprisonment of two years.
The other alternative would be that section 235(c) and (d) are unconstitutional. There can be no severance and so the whole of section 233B and 235 fall. They are the three alternatives. In our respectful submission, at one level it would lead to the convictions being quashed, the indictment being set aside and my clients facing whatever other processes might obtain - - -
KIRBY J: What, such as a State offence of possession?
MR T.A. GRAY: Yes, or if there was an amendment - retrospectivity. One other possibility would be that this Court would - - -
KIRBY J: Clearly whether a criminal offence could be rendered valid retrospectively.
MR T.A. GRAY: No, if 233B was struck down, it would probably lead to.....of State offences, under the State legislation. The other possibility, if the Court pleases, that is open, would be that if the Court accepted our submission that the premises underlying the majority's view in Kingswell were incorrect, that could lead to a review entirely of the proper approach to the meaning of "Court" in section 235 and 233 and that could lead to the conclusion that there are, in fact, here a series of offences, not one offence. If that conclusion was reached, this conviction be set aside, be quashed, the indictment set aside, it would then leave my clients exposed to what other indictment might be laid under the Commonwealth legislation so construed.
One of the difficulties about the construction of section 233B and 235 in Kingswell is that it was - there was one essential premise that no longer holds good and now a different approach to the interpretation of constitutional guarantees has become manifest. Now, if the Court pleases, in many ways what your Honour Justice Kirby says is correct, that if on the demurrer the matter had been stood down while the challenge was made, it would have presented procedurally as a cleaner vehicle but, in the events that have occurred, each of the applicants did make its position known and each plea was conditioned on the rejection of the demurrer.
In many ways, because of what has occurred, that the facts of this case, we would say, do, in fact, present these applications as in some ways better vehicles because they do throw up some of the problems being alluded to in a theoretical way by Justice Brennan, for example, in Kingswell, they really come to life here where, ultimately for an intermediate court, the question of intent and mens rea has been ruled to be irrelevant.
GLEESON CJ: In their sentencing did the applicants seek and obtain the benefit of a reduction in sentence on account of the plea of guilty?
MR T.A. GRAY: Yes, they did, and if, of course, the convictions are set aside and the indictment set aside they face the matter afresh. One of the conditions - when the special leave came up for debate there was an amendment to ensure that the conviction was challenged. It had been challenged in the intermediate court and the intermediate court said that challenge had to fail and on special leave it was amended to include a challenge to the convictions so that these applicants could not, as it were, have the best of both worlds.
KIRBY J: Well, I suppose you can say that it does not matter that they pleaded guilty because, if your primary argument is correct, there is a fatal constitutional flaw in the statutory provision making the offence and that that flaw was there at the beginning, is there now and renders that offence a nullity and that, therefore, their plea is irrelevant.
MR T.A. GRAY: Indeed, and, if the Court pleases, the other matter is that at the intermediate court level they have been sentenced on the basis of section 235 being constitutional, so that, in fact, their sentence does reflect - when the intermediate court reassessed the sentence the intermediate court did say on the basis that 235 was a valid provision, and we challenge that. So, in both respects, we would say this case does present as a very suitable vehicle to decide the points. What it does do is it puts into stark relief in a real way points being referred to, for example, by Justice Brennan in theory but here is, in fact, the very consequences he was alluding to being worked out, that is a person being exposed to life imprisonment when the question of their intent, according to the intermediate court, is a matter of irrelevance and that was one of the reasons that allowed Justice Brennan to reason that section 80 was being breached.
KIRBY J: Irrelevance, or a matter of fact determined by the judge and not the jury?
MR T.A. GRAY: Well, no, Justice Bleby, speaking for the majority, took the view that the question of intent and knowledge was not a relevant matter at all. He held if it was, then he found there was a requisite intent, but his primary finding is of no relevance of intent or knowledge.
KIRBY J: Intent to import is relevant but intent to import goods of the particular quantity is not relevant. You find the first and then you merely find as a fact the quantity and then the life imprisonment follows from the quantity.
MR T.A. GRAY: Yes. It is commercial quantity that leads to life imprisonment and the court has held knowledge or intent in that regard is not relevant, that is to import a commercial quantity. That is the ruling of the intermediate court, so that the end result of this is that these applicants faced life imprisonment and the question of their intent or knowledge was not relevant, which is the very curious result, indeed, that Justice Brennan spoke of in Kingswell.
Now, if the Court pleases, in our outline we identify two reasons why this Court should entertain a review of Kingswell. The first is that the majority decision in Kingswell was premised and, with respect, the major premise, was that section 80 was but a procedural provision. The majority, that is Chief Justice Gibbs and Justices Wilson and Dawson, at page 276 in Kingswell (1985) 159 CLR specifically so identify that matter. The relevant passage in the joint judgment is at the foot of page 276. It is in the middle of the last paragraph:
Section 80 says nothing as to the manner in which an offence is to be defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence. The fact that s. 80 has been given an interpretation which deprives it of much substantial effect -
that is, being defined as a procedural provision -
provides a reason for refusing to import into the section restrictions on the legislative power which it does not express.
Now, first we would say that the second proposition does not follow from the first necessarily, but secondly, what is implicit in that is that at its core the reasoning in the joint judgment turns on the characterisation of section 80 as being, in substance, a procedural provision.
KIRBY J: You say, and this is quite an important aspect of your argument, that the second does not follow from the first, but if the Parliament can permit the Commonwealth or prosecutor to walk straight out of section 80 simply by saying it is not punishable on indictment or it is not triable on indictment, then it is easier to infer that the Parliament can split up the section because, if you can walk straight out of it, it is not so offensive to say that you can split it up and split up the offence.
MR T.A. GRAY: Yes, if the Court pleases, again, if that were the position, it is possible to reason in that way. That is why we said not necessarily so, but in Brown's Case, for example, where Justice Dawson joined the majority and Chief Justice Gibbs was the minority, Justice Dawson reasoned that it is really quite inappropriate to view the issue of indictment in that way because he speaks of not being aware, ever, of the Commonwealth, as it were, legislating to avoid indictment where one would expect an indictment and spoke of the public purpose involved and how Parliament would be brought to account if it attempted to do so. So, from a public law perspective, Justice Dawson reasoned that there was, effectively, a real block there in any event against the watering down or the avoidance of indictment.
But in this case, if the Court pleases, the point we have made is we do have here an indictment and the question is, what follows from that? The point that we want to make about why it is the premise in Kingswell - the first premise is no longer there is because this Court, in a series of decisions since Kingswell, when it has dealt with a circumstance where there has been an indictment, has spoken of, in that circumstance, this being a constitutional guarantee, a fundamental law and language and reasoning quite inconsistent with the earlier view of it being a procedural section only.
HAYNE J: And upon what words do you fasten in Kingswell to say that the Court, the majority there analyse it as procedural?
MR T.A. GRAY: There are a number of passages but the one we chosen is at the foot of page 276 and it is the words, four lines from the bottom:
The fact that section 80 has been given an interpretation which deprives it of much substantial effect -
Now there - - -
HAYNE J: You say there the Court is distinguishing between substance and procedure rather than using the word "substantial" simply as a quantitative description?
MR T.A. GRAY: Yes we do. It continues over the page:
It has been held that section 80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily.
And then, after the reference to the cases, in particular cases that speak of it being a procedural device, they say:
To understand section 80 as requiring the Parliament to include in the definition of any offence any factual ingredient which would have the effect of increasing the maximum punishment to which the offender would be liable would serve no useful constitutional purpose;
HAYNE J: Well, what is this distinction between substance and procedure that you say is here embraced?
MR T.A. GRAY: Well, can I give the Court an example, and one that has been given before, is that if Parliament were to legislate in regard to the crime of murder, that the crime of murder is made out by the act of killing and then leaving it to the judge on sentencing to determine mens rea. Now that would be an example if that was done, which we would say would be a procedural step in redefining the offence that would effectively remove the constitutional right to trial by jury, given that it relates to an indictment.
GLEESON CJ: That is an interesting example. In some jurisdictions in Australia there is a defence of diminished responsibility, which reduces murder to manslaughter and which is determined by a jury. In other jurisdictions, the question of whether or not the offender is suffering from a mental condition which in some places would be called diminished responsibility is a matter to be determined by the sentencing judge on sentence.
MR T.A. GRAY: Yes. Well, if the Court pleases - - -
GLEESON CJ: You say this constitutional guarantee produces the consequence that the Commonwealth Parliament does not have that choice.
MR T.A. GRAY: Yes, we would say that, if the Court pleases. For example, this Court in - - -
GAUDRON J: Is that necessarily so? If it is a matter simply to be taken into account by way of discretion on sentence, and I do not understand - that is one thing, and does not direct a particular result, but if you have got distinctly different acts, for example, attached to one offence or attached to one substantive provision, then the question really is, what is the meaning of the word "offence" in section 80 of the Constitution, and that is what you have to grapple with, do you not?
MR T.A. GRAY: Yes it is. Perhaps I was too quick to give your Honour the Chief Justice, that it does not necessarily follow, but could I, on the hypothesis, it does follow, and could I just answer the Chief Justice, we would say that is no different, for example, than the case of Cheatle, where this Court said that the South Australian legislation in regard to a Commonwealth offence would offend the principle of unanimity, the common law of jury principle unanimity, but it did not suggest that that was not an appropriate matter for State Parliament to legislate about and - - -
GLEESON CJ: Is it your submission, going back to the bottom of page 276 and 277, that section 80 means that the trial of all serious offences shall be by jury?
MR T.A. GRAY: Yes it is.
GLEESON CJ: And what do you mean by "serious offence"?
MR T.A. GRAY: Well we would answer that slightly elliptically by saying we would respectfully adopt the analysis of Justice Deane in that respect in Kingswell in the minority when he gives a definition and, in particular, for example, the American approach where there has been a jurisprudence developed to distinguish between petty offences and serious offences and I think Justice Kirby in Colina's Case we also respectfully adopt, that the various techniques for defining what a serious offence might be - - -
GUMMOW J: Well, the Commonwealth has done it, has it not, in section 4G of the Crimes Act? I know it is now 4G, but it was some other number before; it has been there for a long while. Is that not the starting point for construing the Customs Act section? Section 4G says:
Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.
MR T.A. GRAY: Yes, indeed.
KIRBY J: But is it your submission that the Parliament cannot, by simply playing with that section, remove the constitutional guarantee, that it cannot, as it were, say, "We will only say it's indictable if it's punishable by life imprisonment"?
MR T.A. GRAY: Our primary submission is that - - -
KIRBY J: I think your primary submission is that you do not have to grapple with that in this case because it was on indictment, as you contend.
MR T.A. GRAY: Yes. We do accept that when one comes to deal with the question of this issue of Kingswell that one must go into the analysis about what "indictment" means. In our respectful submission, that is a matter for the Constitution and it is a matter for the courts to define "indictment" against the common law precepts of what that contained and the events of the day and it is not a matter of Parliament, as it were, subdividing that in another Act. In this particular case we do obviously accept that that - - -
GUMMOW J: No, but would you accept that "punishable by imprisonment for a period exceeding 12 months" satisfied the constitutional criteria? That is why I asked the question.
MR T.A. GRAY: Yes, we do.
GUMMOW J: Rather than this "serious offences" notion. I do not know where that comes from, apart from the United States, but it comes from the United States because they did not write it out the same way as it is written out in section 80.
MR T.A. GRAY: Put more correctly, we would put the submission this way, that we are speaking of offences that expose a person to penalty and in that sense Justice Deane speaks of 12 months imprisonment. In that sense the United States court spoke of six months. But it is not a matter of the Parliament being able to walk around section 80 by simply legislating "There will be no offences tried by indictment".
GUMMOW J: But they have not done that, they have never done that.
MR T.A. GRAY: No, but - - -
GUMMOW J: There is no sign they are about to either.
MR T.A. GRAY: With respect, really the point that Justice Dawson was making when forming part of the majority in Brown's Case when his interpretation - - -
GUMMOW J: This problem is a more sophisticated problem.
MR T.A. GRAY: The other way in which we say that Parliament cannot walk around section 80 is by taking out what are traditionally matters and offences determined by a jury and removing those from the province of the jury determination, which is the example I used with redefining the elements of murder.
GUMMOW J: The question is what the words "any offence" means in section 80. What are the integers of that notion of "offence"?
MR T.A. GRAY: If the Court pleases, when we come at this particular analysis with the very full reasoning of Justice Brennan and Justice Deane, we cannot advance that essential reasoning and we respectfully adopt it. We would be taking up this Court's time unnecessarily to repeat that line of reasoning. We respectfully adopt that and say that what has changed with regard to Kingswell is the premise underlying the majority, that is that section 80 is but a procedure provision, given an indictment is no longer good law.
GAUDRON J: But in Kingswell did the Court give any real consideration to what was involved in the notion of an "offence", as that word is used in the Constitution, as distinct from the common law?
MR T.A. GRAY: No, not explicitly.
GUMMOW J: Well, that was my point. That is why I am seeking help.
GAUDRON J: Is that not where your argument must begin and end in a sense? Must it not depend entirely on what "offence" means in section 80? Does it mean whatever the Parliament describes to be the offence, or does it mean something else?
MR T.A. GRAY: If the Court pleases, the matter was in this sense touched on in Kingswell at page 292 by Justice Brennan, which is really the answer we give. He says at the top of the page:
But the argument must turn on the power of the Parliament and that depends upon the meaning of the term "offence" in s. 80 of the Constitution.
Then, having quoted the section:
An "offence against any law of the Commonwealth" is, of course, an indictable criminal offence.....Section 80 is expressed as a constitutional guarantee.....But the term "offence" is not left to be defined by Parliament -
He then picks up and adopts the definition of Lord Diplock in Courtie's Case. Justice Deane at page 321 speaks in similar terms.
GLEESON CJ: I notice that in your argument you had said you adopt the approach of Justice Brennan and Justice Deane. They are substantially different, are they not?
MR T.A. GRAY: At some points, yes.
GLEESON CJ: Does Justice Brennan doubt the correctness of the line of authority that treated section 80 in the manner that you have described?
MR T.A. GRAY: Yes, we would say that he does in the sense of plainly characterising section 80 as a fundamental matter - - -
GLEESON CJ: Where do we find him doubting the correctness of any of the earlier decisions on that subject?
MR T.A. GRAY: Yes, he does not address that line of authority explicitly at all. His reasoning is that he treats this as being a question of restriction on power. He goes straight to that point and reasons from there. But his reasoning is that he is speaking of a fundamental matter, a fundamental law, of a guarantee - - -
GUMMOW J: It is all fundamental because it is in the Constitution.
MR T.A. GRAY: Yes, indeed, and in contradistinction to a procedural device, a procedural matter.
GUMMOW J: Is there any discussion by the majority from the starting point taken by Justice Brennan? The passage you read to us at 292 is his Honour's starting point. Now, do they begin from a different starting point?
MR T.A. GRAY: No, the majority do not deal with that. The majority pick up on this being - - -
GAUDRON J: There is some reference at 276 which says because Parliament can decide what is on indictment and what is not, there is really no point in treating it as of having any wider - offence having any wider meaning than what Parliament determines to be the elements of it".
MR T.A. GRAY: Once the majority in Kingswell had approached the matter that, we say, section 80 was not of substantial effect, then they simply went into the question of the meaning of word "offence", noted the wisdom of Lord Diplock's remarks but found this particular statute that they must yield to the intention in the statute.
GLEESON CJ: I may be wrong but I thought the essence of the reasoning of Justice Brennan was to be found in the middle of page 292. I must admit I also thought it was rather different from the essence of the reasoning of Justice Deane.
MR T.A. GRAY: We do accept there is some differences but to this extent there are some similarities. They both draw on Lord Diplock, they both agree he is right and they both agree that "offence" in section 80 picks up that common law definition that Lord Diplock spoke of. In that sense, they are at one.
HAYNE J: But the majority at 276 say that the word "offence" has no fixed technical meaning in the law.
MR T.A. GRAY: Yes, indeed, because they have entered the approach on the basis that section 80 is purely procedural, no substantive effect and - - -
HAYNE J: Leave aside the preamble about substance/procedure if you would, for the moment. Their Honours, in the majority, refer to Courtie, reach the conclusion that "offence" has no technical meaning and go forward from there, whereas Justice Brennan formed the view that "offence" has a meaning, a technical meaning in the law, given by Lord Diplock. That is the conflict and it is that conflict which is the point of debate in this matter, is it not?
MR T.A. GRAY: Yes, it is.
HAYNE J: Leave aside substance/procedure which are wonderful tags much used and abused in the law, Mr Gray.
MR T.A. GRAY: Well, if the Court pleases, it is possible to approach this matter on that very specific discrete basis but, equally, if the Court pleases, it has been suggested by a number of commentators that there is this, as it were - - -
HAYNE J: But to describe section 80 as a fundamental guarantee either states the blindingly obvious that section 80 is found in the Constitution, or is a statement without content. It tells you nothing of what the guarantee is. That is the area for debate and it is not resolved by resort to slogans.
MR T.A. GRAY: Indeed, with respect, but we do say that when one, as the majority did in Kingswell, approaches the issue on the basis that section 80 is not of substance and then proceeds, one is - - -
GAUDRON J: That is not entirely - approach it on the basis, do they not, that because Parliament can avoid the operation of section 80 by declaring offences to be summary or indictable, there is no point in giving the word "offence" any real meaning. Is that not the way they go about it?
MR T.A. GRAY: Yes. We would say that is the essential reason at the foot of 276.
GAUDRON J: It had had no technical meaning before, there is no reason why we should give it any now. The question is: is that an appropriate approach to constitutional interpretation?
MR T.A. GRAY: That leads to the second of the reasons why we say that the decision in Kingswell is appropriate for review. That relates to the approach to interpretation of constitutional guarantees and looking at substance as against form. Because once one does, as this Court has in Cheatle and Brown and Katsuno and more recently in Colina, identified, given an indictment, we are now talking about a constitutional guarantee and not a procedural provision, we then move into the different approach in regard to the interpretation as can be implied by Ha. One looks at what is the substance, not what is the form? The substance of what occurs with the Customs Act is that it removes an element of an offence, traditionally, that is, a matter of fact on which a penalty - - -
GAUDRON J: Well, I am not too sure that you can say "traditionally", can you? What were the provisions before the Customs Act came into being?
MR T.A. GRAY: The word "tradition" is a poor word to use.
GAUDRON J: Yes.
MR T.A. GRAY: The point I was wishing to make, your Honour - - -
GAUDRON J: Certainly the various State Poison Acts create different offences by reference to the amount involved - or many of them do. I do not think you can base it on tradition; you have got to base it on some notion of what is implicit in an offence.
MR T.A. GRAY: Yes. By "tradition", that is what I was rather poorly alluding to. In Courtie's case, Lord Diplock is making the point that when there is a matter of fact which exposes the accused to penalty, then that is normally - and I use the word "traditionally" - dealt with as an element of the offence.
McHUGH J: Is that right? Take the case of mandatory sentencing: the offence is stealing; another section says a person who has been convicted three times of stealing shall be sentenced to X; is that provision part of the offence of stealing?
MR T.A. GRAY: It may be, but more properly, the elements of the offence of stealing would be the traditional elements. That would be a question - - -
McHUGH J: I will ask you another question: what is the offence? Is the offence to be defined as who so ever - being the person who has been convicted on three previous occasions of stealing - steals something, is that the offence, or does the offence remain stealing and the fact that the person has committed three previous offences, a matter of aggravation to be taken into account in sentence?
MR T.A. GRAY: No, we would say, put that way, that the matter of aggravation would form part of the offence.
HAYNE J: Is that dependent upon you dividing the universe into circumstances of the offence and circumstances of the offender?
MR T.A. GRAY: No, with respect, it is a question of recognising that there is a further fact which is exposing the accused to greater penalty.
GLEESON CJ: What about the laws relating to sentencing of habitual criminals?
MR T.A. GRAY: It would be a question of characterisation. But if one is, through a circumstance of aggravation, exposing the accused to a greater penalty, then it would form part of the offence.
HAYNE J: But that means, does it not, that the prior criminal history of the particular offender is being drawn into this debate? It seems to me that if you want to maintain the submission you have to maintain it at the level which distinguishes between something relating to the offending behaviour compared with something that goes to the individual circumstance of the offender so that a statute which says, "For a second offence, the offender shall be punished by up to X" might be good, but, on your submission, a statute which says, "If the offending is associated with circumstances of aggravation, namely A to ZZZ", that is bad. Thus, the universe is divided between circumstances of the offence and circumstances of the offender, which in turn, let me say to you, carries with it its own peculiar difficulties.
MR T.A. GRAY: Yes. Could I answer your Honour this way, that in this Customs Act one of the circumstances of aggravation does relate to being convicted of a prior offence. So one can look at this example in this very section, 235, and one would more readily reason that if the aggravating circumstance related in some way to the offence, it forming a part of the offence, an element of the offence is a little bit clearer but one would have to look at the rationale behind the reference to a previous offence. For example, is it being inferred that because of that there would be, as it were, relevant knowledge? A history of previous offence, one could infer knowledge relevant to the offence or is it a case simply of a matter relating purely to penalty by repeat offender?
Now, if the Court pleases, that can be a difficult distinction to draw but in the Privy Council decision of Sabapathee v The State (1999) 1 WLR that my learned friend, Mr Martin Gray, has referred to in his reply, they do draw the distinction by saying if it relates to the offence then it forms, as it were, a matter - an element of the offence; if it is distinct from it, then it does not.
CALLINAN J: Mr Gray, what about section 16A(2)(c) of the Crimes Act, the general sentencing principles:
In addition to any other matters, the court must take into account.....
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;
That would expose the offender to a much more serious penalty. Do you say there has to be a trial by jury of those issues?
MR T.A. GRAY: Yes. We think that points up our issue very clearly. We would say if this is said to be part of a course of conduct, yes, it should because we are dealing with a factual element related to the offence through course of conduct that is said to expose the offender to a greater penalty. It would depend whether we are simply speaking about within the range of penalty defined or whether one is speaking about an increased maximum. If one is speaking about, "Well, there is the range. It is defined and these are factors to be brought into account in determining that range.", that is one thing, but it is a different matter when the matter of aggravation specifically goes to increase the penalty.
GLEESON CJ: When you say "that is one thing", do you mean that is one thing that is not covered by your section 80 argument?
MR T.A. GRAY: Yes, it is.
GLEESON CJ: It is not covered?
MR T.A. GRAY: No. The argument we have put in this case is that the particular matter of aggravation here does lead to an increase in the otherwise penalty.
GLEESON CJ: So that is a critical distinction, is it, between a circumstance where a matter of aggravation leads to a higher maximum penalty and a circumstance where a matter is merely one of a number of potentially countervailing considerations to be taken into account in the exercise of a sentencing discretion?
MR T.A. GRAY: Yes. We would say in the former case that it makes the case for it being an element of defence much stronger. In the latter case, we would not necessarily exclude the argument entirely but we do treat it as being a different case.
KIRBY J: It is obviously enlivening a constitutional characterisation and it may be that what Justice Hayne suggested gives a clue as to the criterion. You look at the behaviour that is involved in the particular offence as distinct, say, from a want of contrition, a failure to offer amends, matters personal to the offender. In Courts of Criminal Appeal they are commonly talked of as objective or subjective considerations and it is sometimes difficult to classify them but they can be classified.
MR T.A. GRAY: Yes, we do accept that the distinction of fact that Justice Hayne made out has an attraction about it as a dividing line. It is a little difficult though to think through sometimes all the implications of where it leads and the - - -
HAYNE J: The knife in the napkin can be found, Mr Gray, in the judgments in Reg v Storey in about 1996 VR somewhere where there is a deal of discussion about the difficulty of distinguishing between circumstances of the offence and circumstances of the offender.
MR T.A. GRAY: Yes, with respect, it is interesting to reflect on the way that the Commonwealth dealt with this in the development of the rule of practice in Reg v Bright where the court recognised that although this was a matter of aggravation that did not become an element of the offence yet simple fairness meant that it should be the subject of the indictment and the jury should decide the matter and that is the rationale of Reg v Bright and it - - -
KIRBY J: Fairness is not a very good criterion to decide what the Constitution means when it talks of "offence". It would seem at least strongly arguable that that has a concept, that it is not simply whatever the Parliament says is the offence, that because it appears in section 80 that it has some content.
MR T.A. GRAY: In our submission in reply, we do put that because of the rule of practice in Reg v Bright, and for example, especially in South Australia because Justice King, speaking for the Court of Appeal, has said that the rule of practice is that there be a jury trial - - -
KIRBY J: What is that case? It is Bright, is it?
MR T.A. GRAY: It is the case of Reg v Hietanen [1989] SASC 1909; (1989) 51 SASR 510. The passage is at page 514. It might be convenient for the Court also to have at the same time, Meaton v The Queen [1986] HCA 27; 160 CLR 359, because one needs to work from that into Hietanen. In Meaton v The Queen, the passage is at page 564 point 8 on the page, and the question about a plea of guilty is raised. At point 8 in the middle of the long paragraph, or towards the end of the long paragraph in the joint judgment:
In the event of an accused pleading guilty to the offence as charged but then disputing an alleged previous conviction, since no jury will have been empanelled the judge will proceed to determine that issue. Furthermore -
and these are the important words -
if an accused person pleads guilty only to the offence as defined by s.233B -
which as was the case here -
any matters of aggravation that may be in dispute will fall to be determined in accordance with the practice prevailing in the State concerned.
And it is against that background that one comes to Hietanen's Case, and at page 514, the relevant passage is in the penultimate paragraph, in the middle of the second last paragraph, after reference to Meaton's Case:
It is open to an accused person to plead guilty to the charge but to deny any allegation in the charge that a motor vehicle was used or that the bodily harm caused was grievous. If that occurs, the prosecution may, of course, accept the plea in satisfaction of the charge. If it does not do so, issue has been joined as to the existence of the relevant circumstance of aggravation and that issue must be tried by a jury.
Now, Justice Mohr agreed with his Honour, and Justice Prior was not prepared to go so far. And then his Honour Justice King continues:
If the circumstance of aggravation consists of the commission of a prior offence, the procedure in that event referred to in Kingswell v The Queen at 281 would of course be followed.
So the practice in South Australia, according to Hietanen's Case, is that there must be a jury trial on that issue.
GAUDRON J: I do not see why you transpose that automatically in the face of section 235 of the Customs Act. If "the Court" means the sentencing judge, that is what it means, and State practice will not be picked up pursuant to the Judiciary Act. Is that not right, or have I missed something?
MR T.A. GRAY: Your Honour, that is, what we have described as the paradox that we refer to in our reply, that if one follows through the reasoning in Meaton's Case where it says, that on a plea there is a dispute about the aggravating matter, then it is to be decided according to the State practice. And the State practice then says there must be a jury trial. We have gone the complete circle. We have Parliament, on the one hand, saying - - -
GUMMOW J: But the State practice only gets in because of some federal law that says it gets in. What is that, the Judiciary Act, is it?
MR T.A. GRAY: Yes, section 68(2).
GAUDRON J: Well, I am asking really this: is not the sentence at page 364 of Meaton saying that it, "will fall to be determined in accordance with the practice prevailing in the State concerned", contrary to what is dictated by section 235, if "the Court" there means the "sentencing judge".
MR T.A. GRAY: Yes, indeed, we do, respectfully - - -
GUMMOW J: And that will override section 68, because it will be a particular provision.
MR T.A. GRAY: Well we, with respect, do see some tension in that analysis in Meaton's Case. And, of course, with respect, that is picking up on part of the reasoning of the majority in Kingswell, because although they have not gone to consider in detail the question of a guilty plea, they do deal with the application of the Reg v Bright, as it were, ameliorating against the otherwise apparent harshness of the situation. Reg v Bright was brought in to provide, at a pragmatic level, a matter of practice and procedure, some relief against what might be viewed as being inappropriate. And then when one follows it right through, one finds that that does not work very well at all with the interpretation of the section. Justice Brennan in - - -
GAUDRON J: And it does not work very well when you do not know what your plea of guilty admits.
CALLINAN J: Mr Gray, what about 16A(2)(e) of the Crimes Act:
any injury, loss or damage resulting from the offence;
That is not a matter personal to the offender. What if there is a dispute about that, as very often there is? That is almost always in practice, whether rightly so or not, dealt with by the sentencing judge.
MR T.A. GRAY: Your Honour, we would respectfully suggest that that is not giving rise to a greater maximum penalty in the sense of the Customs Act. That is simply indicating that within the range of penalty that the sentencing judge can choose from, these are factors that are to be had regard to and there is no suggestion there that that is, in any way, going to increase the maximum penalty. The rationale in Courtie's Case by Lord Diplock is that it is a factual matter that leads, of itself, to some form of extra penalty.
CALLINAN J: Inexorably leads to it, inevitably leads to it, is it, or something?
MR T.A. GRAY: No, that exposes a person to it.
CALLINAN J: Exposes. A person must be exposed to it by the statute, the statutory provision?
MR T.A. GRAY: Yes, but in the case of the Customs Act, one has this gradation of penalty so that, absent circumstances of aggravation, the penalty is a maximum of two years. Given a trafficable quantity the penalty is 25 years maximum. Given a commercial quantity the penalty is life. Then, in effect, leaving to the judge alone, and taking away from the jury, the factual findings that would lead to, for example, the difference between two years and life imprisonment.
CALLINAN J: The distinction you make between a section such as (d) of 16A(2) and the Customs Act is that the latter requires that there be a maximum penalty of a certain quantum, whereas these paragraphs of the Crimes Act do not.
MR T.A. GRAY: No, we would respectfully adopt that.
GLEESON CJ: Is there some reason why your argument - I would not want to encourage you to oversimplification - but is there some reason why your argument would not simply fasten on the circumstance of the different maximum penalties which, as I understand it, is what the reasoning of Justice Brennan turned upon, which is made clear by the passage from the speech of Lord Diplock in Courtie?
MR T.A. GRAY: The argument can be put in that simple way and perhaps the others are embellishments.
GLEESON CJ: The passage quoted from Courtie (1984) 1 AC appears at page 471 and, read in context with the preceding passage, simply turns upon the circumstance that there is, according to Lord Diplock, a critical difference between a statutory provision that says the maximum available penalty will vary according to a certain state of facts and a provision such as to be found in the Crimes Act that says the sentencing judge in the exercise of sentencing discretion up to the maximum prescribed penalty, whatever it is, will take considerations like this into account.
MR T.A. GRAY: Yes, well even had the section been redrawn in that way, it may still have the substantive effect of removing an element of fact from the jury.
GLEESON CJ: You would not have to redraw the section in that way, would you? The considerations set out in section 16 of the Crimes Act would directly or indirectly pick up the sort of considerations that you find in the Customs Act, would they not?
MR T.A. GRAY: We would say that the key to this is the fact that there are different maximums being incorporated into the section. That is the key to it, and then one can reason from there and embellish that in a variety of ways as one tests that proposition.
GLEESON CJ: Because one of the consequences of fixing a maximum penalty is to take away the sentencing judge's discretion to that extent.
MR T.A. GRAY: Yes, indeed. Now, if the Court pleases, Justice Brennan, I think it was in Meaton's Case, took up this issue of the problem of what happens on a guilty plea. It is at page 369 which, in a sense, identifies the precise dilemma faced by the applicants in this case. At 369, it is about the middle of the page about point 4:
The day-to-day workings of the criminal court are not assisted by the practice operating in a context where the substantive offence is defined by s. 233B(1) alone. If the indictment charges s. 235 matters in addition to the s 233B(1) offence, what plea can the accused enter if he wishes to plead guilty to the offence and deny the s. 235 matters? At common law or under the Code, the prosecution may refuse to accept a plea of guilty to an offence of less gravity than the offence charged, but how could a plea of guilty to a s. 233B(1) offence shorn of the circumstances of aggravation prescribed by s. 235 be refused? And, if the accused may plead guilty to the s. 233B(1) offence alone, is a jury to be empanelled to determine the s. 235 matters in issue? That would be a novel course.
So his Honour has actually identified the very problem that occurred in this case and raising this matter of real concern and when one goes to the majority view in Meaton's Case and, with respect, see the rather unsatisfactory way that has been dealt with and the way it has been followed through in South Australia, one can see the real force and effect of the implicit reasoning that Justice Brennan is using and these again are matters that, in part, were foreshadowed in the dissent in Kingswell, but are now being worked through in Meaton's Case and, we would say, with respect, there are aspects of the majority view in Meaton that are very unsatisfactory and do have an illogicality about them.
Now, if the Court pleases, could I just move for a moment to a decision in Brown [1986] HCA 11; (1985-1986) 160 CLR 171. In Brown's Case the majority of the Court, in circumstances of there being indictment, found that there could be no waiver of the constitutional right and part of the implicit reasoning or part of the reasoning behind that was that the section 80 was both a private and a public law matter, it had both private and public law implications to it, and it was not a matter that could be waived. The minority still, in part, speaking of procedural device, particular to affecting the accused, did allow - - -
KIRBY J: Was that essential to the holding in Brown? I mean in Brown, had there been a waiver or not?
MR T.A. GRAY: Yes, there had been an attempted waiver. It had been rejected by Justice White at trial, so the point came up in that way. Brown attempted to waive and Justice White refused that waiver.
GLEESON CJ: Are you in a position to inform us of the position in various Australian jurisdictions as to the circumstances in which an accused person, either with or without the consent of the prosecution, can elect to have a trial on indictment without a jury? I want to exclude from that question circumstances in which a person can elect to be dealt with summarily by a magistrate - put that aside.
MR T.A. GRAY: I cannot at the moment, but I will be able to after the adjournment.
GLEESON CJ: Perhaps one of your juniors could give us that information?
MR T.A. GRAY: If the Court pleases. The point that I make about Brown's Case is that in the judgment of Chief Justice Gibbs, who was in the minority with Justice Wilson, at page 181, he took up this issue of mere procedure. It is the last paragraph on page 181:
There is an additional reason for holding that section 80 does not impose an immutable condition.
And deals with the cases, including Kingswell, and then:
This result, which Professor Sawer has said has rendered section 80 "in practice worthless", no doubt attributes "a queer intention" to the framers of the Constitution:
And then, in particular, he picks up, over the page, just before the reference to Spratt v Hermes that it:
became "a mere procedural provision".
But then follows from that in the next paragraph that he is:
unable to accept the submission of the Director of Public Prosecutions - - -
GLEESON CJ: Well, it is the last sentence of the earlier paragraph that expresses the point they were making.
MR T.A. GRAY: On page 181, your Honour?
GLEESON CJ: I cannot help thinking that if that was "queer" in 1986, it would appear even more queer now to someone who knows how widespread is the practice in various Australian jurisdictions of accused people electing to be tried on indictment without a jury.
MR T.A. GRAY: Yes. If the Court pleases, Brown's Case has been treated by academic writers as being an important indication of the recognition by this Court of there being a constitutional guarantee as in contrast to....described as a procedural provision.
GLEESON CJ: It is not just a guarantee; it is an obligation.
MR T.A. GRAY: The point I wish to make is that if that analysis be correct, and we submit that it is, it does follow that the premise underlying the majority approach in Kingswell cannot stand. If the premise cannot stand, then the reason that follows equally cannot for that reason stand.
GLEESON CJ: But let us assume that Brown's Case is correct. When you take account of the fact that sometimes is left out of account that it is now far from uncommon in various State jurisdictions for people accused of serious crime to elect to be tried on indictment without a jury, either with or without the consent of the prosecution, then that puts perhaps a slightly different perspective on section 80. If we are going to look at constitutional guarantees through modern eyes, we had better be sure we are not looking at them through the eyes of the 1950s.
MR T.A. GRAY: If the Court pleases, in a sense the issue arose in Cheatle in the same way where the South Australian Parliament had legislated to allow for a majority verdict and the issue was whether that, no doubt valid from the State point of view in regard to how the State Parliament defined its trial by jury or trial, did in fact erode one of the essential elements of a trial by jury at common law. Of course, section 80 is speaking of a trial by jury in terms of Commonwealth law, not State law. So that the States are going to, with respect, be able to legislate to affect the way in which their jury trials are conducted. Some of those matters will be matters that do not go to the essential nature of the jury trial and presumably can sit then comfortably with federal offences being tried in those courts. Others are going to attack what are essential or ongoing elements of the jury trial and those are going to offend the Constitution. So it would be a question of looking at what particular innovative step the State Parliament has taken to change the concept of jury trial.
GLEESON CJ: Well, we are living in an age when there is substantial reconsideration being given here and in other countries to the best ways of trying certain kinds of serious crime, often consideration being given in the interests of accused persons.
MR T.A. GRAY: If the Court pleases, they are matters that must be had regard to. We noticed in Katsuno's Case [1999] HCA 50; 73 ALJR 1458 there was reference to an approval of a passage in Cheatle with emphasis added. The particular passage is in the joint judgment of your Honours Justices Gaudron, Gummow and Callinan.
CALLINAN J: What paragraph, Mr Gray?
MR T.A. GRAY: It is at paragraph [50]. Your Honour the Chief Justice and Justice McHugh agreed with these reasons. The Court, approving from Cheatle, gave emphasis to the following words. It is 1468, right-hand column, in paragraph [50]:
It may be that there are certain unchanging elements of that feature or requirement such as, for example, that the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State.
So that there is this concept of unchanging elements. I think your Honour Justice Kirby might have spoken of essential elements. Certainly Justice Evatt in Newell's Case spoke of essential elements. So that there are some core factors about a jury trial that just cannot change, absent a change to the Constitution. They are, for example, an impartial jury, they are, for example - - -
GAUDRON J: Are there core factors above the notion of a trial on indictment?
MR T.A. GRAY: Yes, there are. The core factor is that an offence that exposes a person to penalty - leave aside the precise definition of that - leads to a trial by jury.
GLEESON CJ: The Land and Environment Court of New South Wales exercises a jurisdiction over offences that many people regard as very serious, and the penalties that that court can administer can involve the imposition of extremely substantial fines and I think - I am subject to correction about this - in certain circumstances incarceration. But that jurisdiction is exercised summarily. The Supreme Court of New South Wales has a summary jurisdiction in crime. A jurisdiction is usually exercised in relation to what is sometimes called white collar crime. It just is not true to say that in Australia in the year 2000 all serious crime is tried on indictment. That might be an inconvenient fact but it is one that it is hard to ignore.
MR T.A. GRAY: Yes, well - - -
McHUGH J: Nor serious offences. Sections 4 and 7 of the Australian Industry Preservation Act described conspiracies in restraint of trade as offences, but they were actions for civil penalties. So, somebody can be guilty of an offence which is not a criminal offence.
MR T.A. GRAY: If the Court pleases, whether one uses the label "summarily" or "criminal", the real issue is whether the offence, or the elements of the offence, exposing the person to penalty, that is, loss of liberty - - -
McHUGH J: But you are relying on Brown. It seems to me that Brown can be overcome by the very easy device of simply saying that if the accused elects to be tried without a jury, he may be tried summarily before a judge. What happened in Brown's Case was that the legislation provided for the judge to hear the matter on indictment. If South Australian legislation had provided for the judge to try the matter summarily, it seems to me fair enough, having regard to the cases in this Court, that the accused could have been tried at his election, summarily.
MR T.A. GRAY: Yes, well, that would raise squarely the question of the meaning of indictment which is, in a sense, not a necessary step in our argument in this case.
GAUDRON J: But what is the crucial difference between a summary trial and a trial on indictment?
MR T.A. GRAY: That one is by jury and one is not by jury.
GAUDRON J: Well, there is a circularity - - -
GLEESON CJ: Exactly. What is not the difference is that although Justice Deane in Kingswell suggested, as I read his judgment, that summary trial means trial by a magistrate or a justice of the peace, nowadays there are many summary trials before judges of superior courts.
McHUGH J: Including murder.
MR T.A. GRAY: The rationale behind Justice Deane's reasoning is not necessarily the particular judicial officer concerned, but it is the placing of the jury there as finders of fact, in regard to those matters, that is critical.
GLEESON CJ: Coming back to Justice Gaudron's question, when you find the Land and Environment Court dealing by summary procedure with a person who is alleged to have engaged in serious pollution of the waterways, perhaps a serial offender in that regard, what is the difference between saying that person is being dealt with summarily and saying that person might be dealt with on indictment by judge alone?
MR T.A. GRAY: With respect, one can think of no immediate difference. Both are being tried by a judicial officer without a jury. Both circumstances exposed to penalty and no jury to make the findings of fact. If the State Parliament thought that was appropriate, as a matter of State law, subject to other considerations about just how extreme it might be, whether it raises Chapter III points or not, it would be valid, but not so in regard to a Commonwealth matter because the Commonwealth has said that, through the Constitution, the Constitution says that that is not acceptable.
Until the Constitution is changed, that remains the position and should do so whereas one might be highly critical of the judge alone dealing with that matter where a penalty is involved. One might well take the view that it would be much better to have, for all the reasons Justice Deane gives, a jury involved in those very serious matters before a person's liberty is taken away. So, the arguments against that system could be very strong indeed, but they might still be valid constitutionally from the State's point of view providing they do not bring that court into disrepute in terms that would attract Chapter III.
McHUGH J: It seems to me that your argument so far has not come to grips with what is the fundamental question in this case, to use a term that you have used frequently, and that is the question posed by Justice Gummow. What does "offence" mean in this Constitution?
MR T.A. GRAY: The answer we give to that is, with respect, the answer that Justice Brennan gave in the passage I referred to earlier in Kingswell, that - it is picked up in particular at paragraph 34 of our outline where we set out in detail what we say is the precise answer to that question.
GLEESON CJ: Then if it has a different maximum penalty, it is a different offence.
MR T.A. GRAY: Yes. But as Justice Brennan puts it - this is at pages 292 and 293 of Kingswell - - -
McHUGH J: But do we not need to be taken to a more philosophical examination of the notion of what an offence is, if there is such literature or cases on the notion of an offence? I mean, Lord Diplock is speaking in a particular context and you can pray it in aid, but the majority in Kingswell say it is up to Parliament to define what an offence is. In other words, they seem to say an offence is what the legislature defines to be an offence. If they want to make it a civil penalty, make an action for a civil penalty without using the word "offence", then is it an offence under the Constitution? Supposing the cases had gone the other way and you looked at section 80 as protecting any trial for serious offences, and the Parliament enacted section 4, say, of the Australian Industries Preservation Act, but instead of mentioning that it was an offence, it said it was a breach of the law but imposed very severe penalties for the conspiracy. Would that constitute an offence?
MR T.A. GRAY: If one comes at it at the philosophical level, in the context of criminal offence, one has to make a decision as to whether the philosophical approach of Lord Diplock is right. At that level of generality, his reasoning is that a criminal offence is a set of circumstances, elements or events that expose a person to penalty in the sense of loss of liberty. That is his definition.
McHUGH J: Yes, but I thought you had conceded already that that cannot be a universal proposition because of the problem of the serial offender, the habitual criminal and so on. So the mere fact that you are exposed to a higher penalty or a lesser penalty does not seem to be a sufficient criterion.
MR T.A. GRAY: I would add to it that there does need to be, in regard to the particular events, a particular penalty.
GUMMOW J: Well, what about section 79 of the Trade Practices Act, do you remember, which deals with offences against various provisions - or Part 5 of that particular section? It talks about offences. The Federal Court fines people some very large amounts of money sometimes.
MR T.A. GRAY: Well, again, the fine is a different circumstance as to - by exposing to penalty Lord Diplock is speaking about loss of liberty and I think, with respect, that is as far as we need to go. Whether a large monetary penalty is within that concept is perhaps a different debate, but that does rather deflect away from the core point. So the Lord Diplock definition is elements exposed to penalty and a particular penalty as distinct from simply matters within a range for a sentencing judge.
If one takes that analysis to this case, one sees the gradation of penalties as being a critical matter, but if this particular event occurs then, this particular is therein found, there is this exposure to an increase in loss of liberty from two years to life imprisonment. Now, defining "offence" in that way leads to the conclusion that that is a separate and distinct offence.
KIRBY J: It may be worth our looking at what Justice Brennan says because he takes it back to a number of older definitions. You may not elevate them to the point of philosophy but they are, for example, Griffith's Code and the word "offence" at least arguably is a technical word and is being used in the Constitution in a legal philosophical sense, so it is relevant, I think, to look at what Justice Brennan thought was the essence of it. There are bound to be borderline questions. I mean, the question of habitual offenders, serial offenders, mandatory sentencing, do raise questions as to whether this is part of the behaviour of the offence or an aspect of the offender, but ultimately you have to get down to what is the essence of the word "offence" and it is relevant, I think, to look at the sort of matters that Justice Brennan did.
MR T.A. GRAY: Yes. Well, that is at pages 292 and 293 in the Kingswell decision 159 CLR.
HAYNE J: But do you stake your ground out ultimately on the proposition that if there is a different statutory specification of the factual ingredients of offending conduct leading to different maximum punishments there are different offences?
MR T.A. GRAY: Yes.
GAUDRON J: And that goes back exactly to what Justice Brennan said. He said:
A criminal offence can be identified only in terms of its factual ingredients, or elements, and the criminal penalty with the combination of elements attracts.
MR T.A. GRAY: Yes.
GAUDRON J: So Justice Brennan sort of saw it both as the prescribed conduct and the penalty constituting the offence.
MR T.A. GRAY: Yes, and he then draws from Justice Littledale when he speaks of:
"The proper definition of the word `crime' is an offence for which the law awards punishments."
HAYNE J: But the relevant ingredients there referred to are ingredients of offending conduct as opposed to some factual circumstance such as prior conviction.
MR T.A. GRAY: Yes, and where one has your Honours - - -
HAYNE J: But the alternative view would be that "offence" means no more than breach of the law punishable by sanctions of the kind imposed in criminal trials.
MR T.A. GRAY: Yes, and it is the former that allows section 80 to operate as a fundamental law. The latter does not.
HAYNE J: But other than Courtie and what is said in Kingswell, where do we go to find support for your central contention?
MR T.A. GRAY: No, I do not think that is what we rely on.
GAUDRON J: Well, there is one aspect that may support you but it seems to be an aspect only of practice and I think you will find it in Archbold in some of the old editions which actually require the practice suggested in Meaton of pleading circumstances that would attract a higher penalty or of charging circumstances and leaving it to the jury which said practice seems to have been indicated in Kingswell and then approved in Meaton in relation to this very section.
MR T.A. GRAY: Yes. The majority in the joint judgment in Kingswell specifically pick up on Reg v Bright and that practice - - -
GAUDRON J: Now, that is a very old practice, as I understand it, is that correct?
MR T.A. GRAY: Yes it is, and your Honour is right, it does go back and has been picked up in Archbold. The discussion commences at page 278 in the joint judgment about the middle of the page:
Reference was made in Reg v De Simoni to R v Bright -
which is (1916) 2KB -
where the judgment of the Court of Criminal Appeal appears to support a rule similar to that in force under the Criminal Codes of Queensland and (formerly) Western Australia. There Justice Darling, who delivered the judgment in the Court, said that the judge "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation".
GLEESON CJ: Yes, the word "statutory" is an important qualification of the word "aggravation", is it not?
MR T.A. GRAY: Yes it is, and plainly Justice Darling was speaking of a statutory aggravation that, in the view of that case, did not create a new offence or a separate offence.
McHUGH J: Uninstructed by authority, I would have thought that an offence was a breach of the law punishable by imprisonment, fine or forfeiture. Now, do you disagree with that or does it need amplification?
MR T.A. GRAY: We do not disagree, but it needs amplification because of what is encapsulated by the phrase "breach of the law" and what one then comes down to is that there is a series of facts, events or elements that give rise to that breach that is the issue, so the reference to "breach of the law" is but a label and then one has to get behind that to see what one is speaking about.
GLEESON CJ: Well, there is another premise in your argument - I am not suggesting it is wrong - but it is that section 80 requires that if there is a trial of an offence by jury, it must be for the jury to determine all the elements of the offence.
MR T.A. GRAY: Yes.
GLEESON CJ: There are forms of trial by jury in civil actions that give the jury a very limited role in relation to the issues that they determine and there are also forms of trial by jury that permit, for example, special verdicts. In a trial on indictment of an offence against the law of the Commonwealth, would it contravene section 80 to require the jury to bring in a special verdict?
MR T.A. GRAY: We would see no immediate conflict. For example, Justice King in Heitanen's Case was talking about a special verdict, in a sense; he was saying on this question they have got the plea of guilty, the jury will be empanelled to decide the point of aggravation and will bring a verdict on the point of aggravation.
GLEESON CJ: I am just pointing out that involved in your argument is a certain assumption, not necessarily wrong, as to the role of a jury, if there is a trial by jury and, of course, the corollary of that is that the role is not capable of being altered by Parliament.
MR T.A. GRAY: Yes, we would see no immediate problem with that.....to the negative. It is only if you do not leave the elements of the offence to the jury that section 80 is transgressed. Section 80 requires the elements of the offence to be left to the jury.
GLEESON CJ: That is the bottom line of your argument here, as I understand it; that is, that these matters that were treated as going to penalty were elements of the offence which had to be submitted to a jury for their decision.
MR T.A. GRAY: But if there are other matters that are not elements of the offence that require a special verdict of a jury, that would not involve, on our argument, any transgression of section 80. Our argument is the other way, that the elements of the offence must go. So it would relate to the matter that your Honour - - -
GAUDRON J: What you really say is, if it is just a special verdict, it is not the trial of the offence?
MR T.A. GRAY: Yes, and, in fact, that is the - - -
GAUDRON J: And section 80 talks about the trial of an offence.
MR T.A. GRAY: Yes. Following through, as Meaton has been interpreted by Chief Justice King, is what has occurred, that we have this element that has been defined by Kingswell to go only to penalty and not an element of the offence, but the rule in Reg v Bright applies. There is to be jury verdict on that because there has been a plea of guilty, it leaves only a special verdict on a matter going to penalty.
KIRBY J: And does that explain why the sentencing proceeding does not offend section 80, though it amounts, on a plea of guilty, to a waiver, in effect, of the criminal trial which Brown suggests you cannot do?
MR T.A. GRAY: In the case of Brown, I think the waiver related to, at the trial proper, a matter going to the element of the offence.
KIRBY J: I realise that, but is it not still part of the trial on indictment of the accused, whilst the accused is waiting sentencing? Or why cannot the accused, or, rather, why can the accused waive a jury trial of matters relevant to the conclusion of the trial, which are pertinent to sentencing?
MR T.A. GRAY: Well, if that were the correct analysis, yes, it would. It would then meet section 80 in that way. It would have been a jury trial on that aspect of the trial.
McHUGH J: But does your argument lead to the conclusion that the accused cannot plead guilty to a Commonwealth offence?
MR T.A. GRAY: No. The argument leads to the conclusion that if Kingswell is right, then, in this case, there had to be a plea of guilty but it challenged the matter of aggravation, as a matter of penalty.
McHUGH J: But the section says "the trial on indictment shall be by jury". You would have to say that the plea of guilty is not part of the trial, do you not, and not part of a trial on indictment?
MR T.A. GRAY: One is still able to plead without there being a jury empanelled. The plea can be taken without the - - -
McHUGH J: But that is not the point, is it? The point is that, if you have a trial on indictment for an offence, you have to have a jury. Is that not the argument?
MR T.A. GRAY: Yes. If there is to be a trial there must be a jury. Yes, indeed.
McHUGH J: Well, if a plea of guilty is part of the trial on indictment, how can you have the issue determined without the jury's finding?
MR T.A. GRAY: Because the plea of guilty obviates the need for a trial. There is no issue to be joined before the jury.
KIRBY J: That is if the plea is to all matters pertinent to the sentencing of the accused, and there is nothing remaining to be resolved because of an outstanding dispute.
MR T.A. GRAY: Indeed. So if there remains an issue joined between the Crown and the accused beyond the plea of guilty, then, according to South Australian practice applying in Meaton's Case, that would involve a trial by jury.
HAYNE J: Leave aside the prevailing South Australian practice, can I just understand what form the plea would take to leave over this question of how much. The prisoner is arraigned, the charge is read. What plea does the prisoner enter at that point?
MR T.A. GRAY: Guilty.
HAYNE J: Guilty, but.
MR T.A. GRAY: With respect, if one looks at the indictment in this case, the plea would be guilty to count 1 as read, but the particulars are disputed.
HAYNE J: But the point is not a captious one.
MR T.A. GRAY: No.
HAYNE J: The plea of guilty, it seems to me, at least at first blush, either is a formal admission of the charge as formulated, including its particulars, or issue is joined and this middle ground that the authorities you have taken us to suggests might exist, seems to me to be an uncomfortable middle ground that assumes the existence of a plea which is in the nature of guilty but.
MR T.A. GRAY: There is authority. I do not have it just to hand but there is authority that says that the plea of guilty is to be taken as a plea to the minimum elements sufficient to establish the count.
HAYNE J: But Bright would say, would it not, that the plea of guilty to the charge as aggravated is a plea to the charge and the aggravating circumstances, so a plea to rape with aggravating circumstances is a plea of guilty to the rape and to the presence of the aggravating circumstances alleged in the count of the indictment.
GAUDRON J: Justice Hayne is postulating that the aggravation is in the count so that it looks like the offence, whereas this hybrid that has developed since Kingswell gives you a count and particulars which seem to have a different status.
MR T.A. GRAY: Yes, but I think that is the point in the indictment. It was possible here to segregate out the count and the particulars and the particulars pick up the matter of aggravation that is not in the count. All the record shows here is the count was read and a plea of guilty was taken. It is unclear whether the particulars were read or not.
Justice Bleby at page 98 of the application book does deal with this question about particularisation and perhaps I could start, first, at page 81 and then to 98. At paragraph 12 lines 18 to 20:
Before I leave the topic, however, one point does emerge clearly from the cases which may have a bearing on another aspect of this appeal. That concerns the nature of a plea of guilty. A plea of guilty is an admission of all the essential elements of the charge -
and then it cites some South Australian authority in that respect and also Meissner's Case. Then at page 98 at paragraph 66 his Honour takes it further and in particular deals with the fact that Justice Bleby did not - line 25 to 28:
However, consistent with my previously expressed view as to what is to be established to prove the offence, and what then has to be established to fix the possible penalty range, I do not consider that it was necessary for him to plead to knowledge of the quantity of the prohibited import. I would not regard his plea as an admission of such knowledge.
GLEESON CJ: You can test it, can you not, and reach the same conclusion by looking at it from the other angle? Suppose your client had gone to trial on an indictment in the form that appears on page 1, the first count, and at the trial the prosecution had not succeeded in proving knowledge of any more than whatever it was, the smaller quantity of heroin, there would have been a verdict of guilty, would there not?
MR T.A. GRAY: A verdict of guilty, yes.
GLEESON CJ: In other words, it was not an essential element of the charge to prove the 9.35 kilograms?
MR T.A. GRAY: Indeed, and exactly why, in accordance with Kingswell, a plea of guilty was offered to the count but the particulars were disputed. One of the difficulties of this particular form going to the jury is they come back with a verdict of guilty. Unless a separate verdict is taken in regard to that aggravation, one would not know what their view was.
HAYNE J: But the inscrutable verdict of a jury is common in homicide. Manslaughter is returned and one cannot know from the verdict, necessarily, the basis of the verdict.
MR T.A. GRAY: Particularly in a case, in this case, where the direction in accordance with Kingswell would be when the jury asked, "Does the Crown have to prove his knowledge?". The answer to that is it is not part of the offence. It is there but it is not part of the offence. The Crown do not have to prove that, that is a matter for the sentencing judge. So, this practice, as followed from Meaton, is, with the greatest respect, very unsatisfactory, not only in the case of a not guilty plea, but also in the case of a guilty plea.
GLEESON CJ: Does that produce the practical consequence in the present case that if you are right, the Crown would have to lay two alternative charges in a prosecution to cover the possibility that the jury might find an intermediate situation? That is to say, knowingly concerned in the importation of a prohibited import, but not of the quantity.
MR T.A. GRAY: Yes, that would be one way of approaching it. The other way would be for the judge to seek a special verdict from the jury in regard to the matter of aggravation. Now, if the Court pleases, if one does not approach the definition of "offence" in the way that Justice Brennan approached it, and we respectfully adopt that position and the history he refers to and, in particular, Lord Diplock in Courtie's Case and Justice Deane's application of that, if one does not approach it that way, then one is left with the answer that section 80 can be, as it were, walked around, simply because "offence" be a matter of definition at Parliament's hands on any occasion.
So that once one decides that, given an indictment, this is a constitutional guarantee and not a procedural provision, then the inclination to favour the interpretation that Justice Brennan suggested is much the greater because the other alternative does, in effect, cut across this idea of a guarantee.
McHUGH J: Yes, but you keep using this term "guarantee" in contradistinction with "procedure" that, for my mind, is of no assistance whatever. Blind Freddy could see it is a guarantee. The question is: what is its content?
MR T.A. GRAY: Yes, well, if the Court pleases, I do not want to labour the term "guarantee", but its content is of such a nature as to be something that cannot be simply disposed of and walked around by legislative techniques. It is a matter of substance to be protected, not to be avoided by a drafting technique. Now, once one takes that step, one asks the question: has it been walked around by the drafting technique in the Customs Act? We would say the answer to that is yes, because the consequence as a matter of substance rather than the form has been to remove from the jury what one would normally expect the jury to deal with and be required to deal with.
GLEESON CJ: Why do you say the consequence of acceptance of your argument so far is invalidity of section 233B(1)(d)?
MR T.A. GRAY: The argument runs in this way, that the sections that are immediately affected are sections 235(c) and (d).
GAUDRON J: And (e).
MR T.A. GRAY: With respect - - -
GAUDRON J: Well, maybe not. When they say "in any other case", it might suggest that the whole three have to stand together or - - -
MR T.A. GRAY: Yes. That is, on our argument, severance. In particular, in our reply we have drawn attention to the wording in subsection (e) that says "in any other case". Parliament did not intend a maximum of two years to be the penalty in regard to trafficking or dealing in a commercial quantity, so that when it comes to a question of severance, subsection (e) cannot stand. If subsection (e) cannot stand, then the whole structure falls down because there would be, we would say, no penalty attaching to section 233B(1)(d).
That is our short point on severance and we have given the Court a reference to this Court's recent judgment in Dingjan [1995] HCA 16; 183 CLR 323 as being a recent example of the approach on severance and, applying all the traditional tests, it is very difficult to sever in this case. In particular, perhaps we have given a particular reference to page 347 in Justice Dawson, 347 and 348 - - -
GLEESON CJ: Are you in a position to tell us what other Commonwealth statutes employ this technique of creating an offence and then varying the maximum penalty according to circumstances?
MR T.A. GRAY: Not immediately, but I will, in the afternoon, give the Court that reference.
McHUGH J: Would you accept as the definition of "offence" this statement: an offence is an act or omission which constitutes a breach of the law and which is punishable by imprisonment, fine or forfeiture?
MR T.A. GRAY: Yes.
McHUGH J: That is good enough for your case, is it not?
MR T.A. GRAY: Yes.
KIRBY J: Is that necessarily the entire universe, because there are more modern means of punishment? I am thinking of the Trade Practices Act. There is a question as to whether civil remedies and court orders or other forms of punishment may not, today, be seen as within "offence".
MR T.A. GRAY: If the Court pleases, we would respectfully agree, there is a possible extension and we would, again, perhaps phrase it in a negative way. It is when those other impositions amount to or equate to a penalty in the sense parallel to loss of liberty. One can speculate how that might be, but - - -
GUMMOW J: You then have to identify in the first place what are the elements of the law, what are the elements of the breach.
MR T.A. GRAY: Yes. One can recognises there are other forms of impositions that might in fact be - - -
GUMMOW J: And what is meant by "breach" too.
MR T.A. GRAY: Yes. But, again, the key is to look at what is the nature of the penalty being imposed, the maximum penalty imposed, by reason of that act or omission leading to a breach of the law.
GAUDRON J: You really have to say, do you not, in answer to Justice McHugh, that it is an act or omission in breach of the law which attracts distinct penalties, or an offence is one which attracts a distinct penalty by way of imprisonment, forfeiture or fine.
MR T.A. GRAY: Yes, I am sorry, I took that as being implicit, that we were linking the conduct to the breach to the penalty.
McHUGH J: It is the act - what I formulated, I do not know how it came out, but what I really had in mind was that the weight was thrown on the act or omission. It is the act or omission which is what is punishable by imprisonment, fine or forfeiture.
MR T.A. GRAY: Indeed. To be precise about it, we would say, by the particular penalty being imposed - being imprisonment.
GLEESON CJ: And in a case such as the present, part of the act or omission is your state of knowledge, is it?
MR T.A. GRAY: Yes, that is our argument. But particularly as life imprisonment is involved, to contemplate that without any relevant intent or mens rea or knowledge, the reasoning in He Kaw Teh is anathema to justice. That is as we put the argument, and once it becomes an element of the offence, then the reasoning in He Kaw Teh would apply and there would need to be proof of the requisite knowledge of intent. What has happened in this case is that the intermediate court has said, "No, it is not an element of the offence and because it goes into penalty, therefore intent and knowledge do not apply, He Kaw Teh is distinguishable". So the end result of this case is that these applicants have faced life imprisonment in circumstances where intent and knowledge is irrelevant. So when it comes to - - -
HAYNE J: Is irrelevant in what sense? Is irrelevant to the punishment to be meted out to them or it is irrelevant to the maximum punishment to which they are exposed?
MR T.A. GRAY: It is irrelevant to the maximum punishment and then, if it is then to be relevant to the range, it makes it even more bizarre. Why would it not be relevant to be exposed to the maximum if it is then relevant to the range? But our primary position is that once it becomes an element of the offence the reasoning in He Kaw Teh applies directly to it as with any other element and one would - - -
GUMMOW J: It also means that there was nothing to which you could plead guilty, really, or that your plea of guilty was defective.
MR T.A. GRAY: In this case it would mean, yes, that there would have been a plea of not guilty because of an element of the offence which my clients disputed, so that, in fact, not only would the conviction be quashed, the indictment set aside, a new indictment laid - laying, if there was an offence, then on the instructions my clients have provided, there would be pleas of guilty. But essentially, at the trial, it would no doubt be narrowed down to the one issue where there was a dispute.
GLEESON CJ: Not that it is unusual to have a plea of guilty and then a very vigorous contest as to the facts on which the plea is based. The example that Justice Hayne gave earlier of manslaughter is a common example where the accused might say it is manslaughter as a result of provocation and the Crown might say, "We say it is manslaughter as a result of something different."
MR T.A. GRAY: Yes, but that would not be leading to a different maximum penalty. It would simply have a penalty range and in that circumstance a sentencing judge would dispose of that presumably and would do so, if necessary, on sworn evidence.
McHUGH J: Well, I do not know why you are injecting this notion of maximum penalty or different maximum penalty? Is it not sufficient for your purposes that if punishment is to attach to a particular act or omission, then it is an offence?
MR T.A. GRAY: Yes, it is but when we come back to the structure of this particular section, in our respectful submission, if they are to be offences, they are going to be separate offences. It is not just one offence.
McHUGH J: Well, the fact that there are separate penalties may be a strong indicium of the fact that there are separate offences.
MR T.A. GRAY: Yes. If the Court agreed with our primary submission and then looked at the sections afresh, one approach is to revisit the question of what is meant by "the court" in the light of now recognising that 235 is containing an element of the offence and that might well lead to a different approach to the construction of the section, which in turn might well lead to the Court taking a view that Kingswell was wrong on that aspect of the matter, that the legislation survives and it creates a whole series of separate offences.
GLEESON CJ: You are inviting us to overrule Kingswell, which was decided in - - -
McHUGH J:.
GLEESON CJ: There must have been a lot of people sent to prison for offences against section 233B(1)(b) between Kingswell and now.
MR T.A. GRAY: If we are right, it makes the need for intervention by this Court all the more necessary.
GLEESON CJ: But ultimately this argument is all in aid of the proposition that what is obligatory is a jury determination of the issues raised by section 233(d).
MR T.A. GRAY: Yes. Well, more correctly, 235(c) and (d).
GLEESON CJ: I am sorry, 235.
MR T.A. GRAY: Yes. Alternatively, if the Court was of the view that it could not go severance and that this particular statutory scheme was invalid, then the consequence would be, yes, there have been a series of people have been wrongly convicted and, if that is so, as this goes to the Constitution, it is absolutely imperative this Court deals with the matter.
We have been served with an affidavit - I do not know if the Court has seen an affidavit - that really, in some ways, begs more questions than it answers. Apparently it was prepared on Friday and it does deal with the matters your Honour the Chief Justice has raised and it suggests that there are something in excess of 400 persons who might be in some way affected by the argument we put. The affidavit is, with respect, in many ways unsatisfactory. It was not requested until Friday last. The deponent does not conduct the search, does not depose to the thoroughness or completeness of the search and speaks of an unspecified number of unnamed officers informing her of various things. But might I say, the bottom line is, and it does not surprise us, that there are a number of persons who, we say, have been denied their constitutional rights. The Court would find some difficulty in giving weight to the particulars in that affidavit because of its obvious defects and it simply saying - I have not got instructions, but can I say to the Court in answering the Chief Justice, plainly, we would expect there to be a number of persons who were denied their constitutional rights and we say that the fact that has occurred and the fact that it may occur in the future is a very good reason why the Court should grant leave in this case and deal with the issue. That is another reason why it makes this case a very good vehicle.
GLEESON CJ: Yes, thank you, Mr Gray.
MR T.A. GRAY: Now, if the Court pleases, I think I have put all I can put in with regard to that particular contention about Kingswell and severance we deal at paragraph 38, but the Court would note in particular we deal with that in our reply in some further detail. In our reply we pick up the question at paragraph 7, and, in particular, deal with the point under section 235(2)(e) but, for our part, if the Court pleases, we have great difficulty in the words "in any other case", which would be replaced by words, perhaps sub silentio, "in every case" and that cannot have accorded with the intention of Parliament and for that reason the scheme must fall and, with it, conviction.
Now, if the Court pleases, there are some other matters that we raise that have been, as it were, bundled up and referred to this Court, to deal with our special leave application and they are picked up at page 14 of our outline and they relate to this issue at mens rea in regard to commercial quantity, and I do not want to go over that ground again, because I have covered much of it already, but - - -
KIRBY J: Just before you pass on to that, I am still pondering this affidavit, which has been read in support of the special leave application. What does one do when one is told that there are at least 470 persons convicted of this offence? Is that, as you urge, a matter relevant to the Court's intervention to clarify the Constitution and to ensure that such persons secure what you call their constitutional rights or is it a restraint on the Court to say something that is well settled, has been settled until now, ought not lightly to be unsettled, which is going to cause very great disruption, anxiety and expense for so many people and for the body politic? I mean, there is a bit of a tendency at least to think the latter rather than the former.
MR T.A. GRAY: If the Court pleases, can I put two matters to your Honour: first of all, this is not an affidavit that my clients read. I raised it because your Honour the Chief Justice referred to the topic.
GLEESON CJ: We understand that, but the point that is being put to you is, you are not suggesting to us that these people are innocent; you are suggesting to us that they were dealt with by the wrong procedure and it was a procedure that was in conformity with the decision of this Court of 1985 and that may be a matter relevant to be taken in consideration in deciding whether we should depart from that decision or whether we can grant special leave at all.
MR T.A. GRAY: Yes. The affidavit, with respect, does not allow one to determine exactly what the position is in regard to these cases. But we do accept there would be a number of persons who would be affected by - if our argument were to succeed, would be affected by it.
KIRBY J: This presumably must have been argued in Cheatle, that there were a number of people who were the beneficiaries of the point, if it was good. And I suppose the logic is that one can never re-examine the Constitution once it is decided because of the fact that, of its nature, it is going to affect lots of people.
MR T.A. GRAY: Indeed, but one would never revisit the Constitution in regard to an aspect of the matter. But, more importantly, one cannot tell from those figures how many matters, whether there would be any real issue that would arise. Because it is not as though there would be 400 cases before the court. There would be a lot of those persons who have served the bulk of their sentence, and who will simply say "leave it alone". There would be others who do not want to run the risk of being charged again under a State offence if the Commonwealth offence was declared to be unconstitutional. So one would have to have a much greater depth of study before I could draw any conclusions, other than to say, we are talking about a real issue that affects people, and that is demonstrated by the number. So we would say that the argument in favour of the Court granting special leave and dealing with it is much the stronger when it is realised it is having a real impact, and plainly will in the future.
KIRBY J: Your argument might be strengthened if you could show that there were provisions which, since Kingswell, have followed this pattern in the federal legislation in question here. In other words, if there has been a tendency since that decision to split up so-called offences and to, in effect, deprive people of the benefit of a jury trial which section 80, at least arguably, is designed to ensure.
MR T.A. GRAY: Yes, I will have some inquiries made on that very topic. But even given that, the ability for the Parliament to do that is a matter that, on our argument, ought to be brought immediately to an end.
KIRBY J: In an age of pressure for mandatory sentencing, or fixed sentencing, it is an issue which, at least theoretically, even if it is not demonstrated by your statutory references, that could occur.
MR T.A. GRAY: Yes. And to refuse this application would encourage the contrary.
McHUGH J: Not necessarily. It would be open to the Court to interpret the meaning of offence, and say that the Court took a view about this particular statute, and that is it. It says nothing about other statutes or about other cases in the future.
KIRBY J: It would have to be based on a principle.....statute.
MR T.A. GRAY: If the Court pleases. If the Court is attracted by the arguments we put and is attracted to the view that Kingswell is wrongly decided, then it necessarily follows that these applicants have been dealt with not according to law, in regard to a matter affecting their personal liberty. In that circumstance, we would say with respect to the fact that there might be some others, there is every reason why the Court should deal with the matter and intervene.
If the Court pleases, in regard to this question of intent, I do not wish to add to what is in the written submissions. The matters have been fully developed. I have touched on most of the points already. But I just wanted to say one aspect about it. In regard to Yu Shing Cheng, his involvement was to have given his name and address and number as a contact point. His state of mind was that he believed that two small packets of cocaine were coming in. He was to collect them and pass them on. His account was corroborated by the fact that he arrived at the airport when he heard the parcel had arrived, in a small vehicle, quite insufficient in size to pick up five large pedestals, and so the judge had some real corroboration accepting his version.
Now, at the point he arrived and saw the pedestals, the intermediate court, in contradistinction to the sentencing judge, found that on seeing those pedestals he must have reasoned there were more than two small packets of cocaine. We say that is a non sequitur and there must have been something more there. In any event, all that was there was 25 grams of heroin, so that at the time the importation ceased, we say as far as the 9 kilos were concerned, his state of mind was two small packets of cocaine. At the time when he saw the pedestals there was 25 grams, only a trafficable quantity there.
So in so far as the importation continued, it was only in regard to a trafficable quantity. We say it follows that he could not be guilty of being knowingly concerned in the importation of 9 kilos given the judge's finding about his state of mind and that that point has been overlooked completely by the intermediate court. A similar point relates to Gang Cheng and that is a small point of fact but we say an important point that I want to just underscore to the Court's attention.
Now, apart from that, if the Court pleases, I would leave those other submissions, the written submissions.....special leave. May it please the Court.
GLEESON CJ: Thank you, Mr Gray. Yes, Mr Gray.
KIRBY J: Could I just ask in respect of the actual orders that you seek, what are they, apart from the grant of special leave? This matter has been argued as of the appeal.
MR T.A. GRAY: Yes.
KIRBY J: Are they as stated?
MR T.A. GRAY: If the Court pleases, at page 123 of the application book the orders sought are then detailed at pages 125 and they are conditioned on the issue of severance. If the Court agrees with primary arguments there could be no severance, then we seek the declaration in paragraph 2 and the orders in paragraph 5. If the Court finds there can be severance, then it would follow that the maximum penalty is under 235(2)(e), which would be two years. I think each applicant has served longer than that already.
HAYNE J: Do you press a claim for declaration? How can you?
MR T.A. GRAY: No, we do not need that if the order in 5 is made.
HAYNE J: Yes.
GAUDRON J: You do, however, do you not - and I am just wondering. Do you need an order to quash the indictment if you succeed on the first point, your main point? So there would simply be - or if you succeed in the first point, we would not enter a verdict of not guilty. What we would do is quash the indictment. Is that right?
MR T.A. GRAY: Yes.
GAUDRON J: And leave it to the State authorities to proceed with respect to State matters. Or would there still be something in the indictment that could stand, notwithstanding the nolle.
MR T.A. GRAY: If the Court took the view there could be a severance and that subsection 235(e) could stand, then count 1 of the indictment would be good, and the particulars would be bad, and the maximum penalty two years.
GAUDRON J: If we took the view that it could not be severed?
MR T.A. GRAY: Then the convictions be quashed and the indictment should be quashed.
GAUDRON J: The whole indictment or only count1?
MR T.A. GRAY: No, the whole indictment because count 2 would go as well. Count 2 is dealing with possession of a trafficable amount.
GAUDRON J: Yes.
MR T.A. GRAY: May it please the Court.
GLEESON CJ: Thank you, Mr Gray. Yes, Mr Gray.
MR M.F. GRAY: In any event, your Honour, count 2 was the subject of a nolle being entered in relation to it, so the indictment, as it stands at the present time, only is count 1.
KIRBY J: Can I just get your help on that? If the applicant succeeds in the substantive argument about offence, what do you say is the correct remedy that should then be provided?
MR M.F. GRAY: Well, that, of course, depends on to what extent his argument succeeds.
KIRBY J: Perhaps at the end of your argument you can come back to that because we often - - -
MR M.F. GRAY: Yes, I will try and - - -
KIRBY J: It is helpful to have some assistance in respect of orders in case that question arises.
MR M.F. GRAY: Yes, your Honour. Your Honours, perhaps the first point that I should make is that there is no contest about the question of indictment and information being in any way different. Section 4A of the Crimes Act 1985 , in any event, defines indictment as including "an information or presentment", and I think sufficient has been said about the method of initiating process of criminal matters which covers matters, either on indictment, information or presentment, as being within the concept of the term "indictment" within section 80 of the Constitution. But I would like to say something in this matter about the plea of guilty. The Crown does not accept the proposition that is being put, that there was a contest in relation to the issue of the quantity and the quality of the prohibited import.
The indictment charged the quantity, and charged it in terms of being not less than the commercial quantity. In so far as the plea was concerned, it was a plea of guilty, without any qualifications, to that charge on the indictment. In the course of sentencing submissions, submissions were put as to what each of them thought they were being involved in. In the case of Yu Shing Cheng, he thought he was being involved in an importation of two small packets of cocaine and in respect of the other two, they had various quantities they said they had in mind, but it was not a contested facts hearing with respect to the issue of them being charged with not less than the commercial quantity. If there was any issue with respect to it, it was really just what their initial intents were with respect to it and, in the case of Yu Shing Cheng, it is quite clear that he carried on with respect to the importation after he realised how much he thought was involved in it and always accepted on what was put to the court - - -
GAUDRON J: Are you suggesting that is a thought crime, because, by that stage there was 25 grams? It does not matter what he thought was in it. If you want to impute some sort of intention at that stage, it is irrelevant what he thinks if it is not the fact, I would have thought.
MR M.F. GRAY: Your Honour, I say that that is not so; that it is relevant to impute - well, in the course of this, he is being charged with being knowingly concerned in an importation. The importation does not cease until such time as it gets to the point of distribution. In other words, he is part and parcel of the importation, which comes into Australia with the quantity, and as part and parcel of that he takes possession - - -
GAUDRON J: He comes into Australia when he thinks it is two small packets of cocaine. He then realises it is not two small packets of cocaine. It is five great big whopping packets but in which there are only then 25 grams. It seems to me it is very difficult to say, if it comes to that question, what his intention was. Maybe what his belief was. Nor can you talk about his knowledge.
MR M.F. GRAY: But in terms of what he is charged with - - -
GAUDRON J: Well, that is the question: what is he charged with? That is what this case is all about.
MR M.F. GRAY: Yes, your Honour.
GLEESON CJ: To be knowingly concerned in the importation of a prohibited import which consists of a certain quantity, do you have to apply your mind to the quantity at all?
MR M.F. GRAY: No, your Honour. It is our submission that you do not. There are two - - -
GAUDRON J: Well, it is really a question of, if the other Mr Gray succeeds on his first point, how you then apply He Kaw Teh. Well, you really would not do it. If he succeeds on his first point, you do not. It is only if at the end of the day you come to the question when the trial judge - when these various people were resentenced by the Court of Criminal Appeal on the basis of what they subjectively knew or intended, that you get the difficulty, is it not?
MR M.F. GRAY: Yes, your Honour, on the assumption that that becomes relevant.
GAUDRON J: Surely it is relevant. What was subjectively known and intended becomes relevant to the sentencing process.
MR M.F. GRAY: But what I am saying is in relation to the actual charge to which they have pleaded. In other words, it does not affect - - -
GAUDRON J: We do not know what they have pleaded to, really, do we?
MR M.F. GRAY: I say they pleaded quite clearly to a charge of being knowingly concerned in the importation of a commercial quantity. That is how the charge was particularised.
GAUDRON J: That must depend on what was decided in Kingswell and whether that is correct.
MR M.F. GRAY: Yes, your Honour.
GAUDRON J: If Kingswell is correct, they have only pleaded, surely, to not guilty to the charge. One does not stand up in court and say "not guilty", or stand up and say, "guilty to the charge but not guilty to the particulars", "guilty!". No, you do not do that in matters like this.
MR M.F. GRAY: In matters like this, if there is a dispute as to the quantity, you plead not guilty to the charge.
HAYNE J: That argument assumes the contrary of the contention you make. For that argument assumes that there are two offences. If that is the path you are taking, by all means take it - - -
MR M.F. GRAY: No, thank you.
HAYNE J: But either there is one offence or there are two offences. I thought your colours were flying from the flag of one offence.
MR M.F. GRAY: Yes, they are, your Honour.
HAYNE J: Well, there are some consequences that seem to follow from that.
MR M.F. GRAY: Yes. Perhaps I should turn to that question. The submission that we put is a submission that there is one offence. It is a submission based upon the reasoning of the majority in Kingswell and it is a submission really based on the fact that there is no special content to the offence that is described in section 80. The majority in Kingswell described the offence as an offence against the law of the Commonwealth as a creature of that law and it is that law - - -
GUMMOW J: That will always be so because we have talked about laws of the Commonwealth. That is just stating the obvious. There are no common law Commonwealth crimes.
MR M.F. GRAY: No, your Honour, and it is for that reason that it is what the Parliament defines as an offence which is the offence, in our submission.
GUMMOW J: Then we come down to what "defines" means, you see. We are back to where we were, I think.
MR M.F. GRAY: Yes. His Honour Justice Mason in Kingswell at 285 described it as:
open to Parliament to define the ingredients of offences and the circumstances to be taken into account in sentencing in whatever way it pleases.
GUMMOW J: It is those last couple of words that are the problem, perhaps, the words "in whatever way it pleases".
MR M.F. GRAY: It is a question, I suppose, of whether, in defining an offence there are some immutables that you can point to, but there are no real immutables related to the defining of an offence in terms of facts and circumstances which lead to a result. The then sophistication of splitting that result, punishment or whatever, into greater or lesser punishments, seems to me to go outside the concept of what might be basically involved in the definition of an offence.
GLEESON CJ: Was there any argument in Kingswell about the subject matter which was the basis of the decision of Justice Deane?
MR M.F. GRAY: The subject matter, your Honour?
GLEESON CJ: Was there any argument about it? Perhaps you can look at that over lunch.
MR M.F. GRAY: Yes, your Honour.
GLEESON CJ: You might look at the argument of Mr Porter reported on pages 266 and 267 of 159 CLR.
CALLINAN J: Mr Gray, I see that more than 100 witnesses were going to be called. Were any of them going to prove the quantity and precise nature of the substance?
MR M.F. GRAY: Would your Honour just pardon me for a moment? I do not know how many might have been involved in that; normally the list of witnesses - and I cannot say what happened in this particular case - - -
CALLINAN J: Well, there is a list here of more than 100 witnesses.
MR M.F. GRAY: And presumably that would have regard to the government chemist and the police officers who substituted the material.
KIRBY J: As I understand it, the first two applicants do not or may not contest the actual amount. What they say is, Well, that is the objective fact, but we just did not know that", which must be a common story.
MR M.F. GRAY: Yes, your Honour.
CALLINAN J: But Mr Gray, I do not have any experience of this, but customarily the quantity would be proved, would it not, in the prosecution case?
MR M.F. GRAY: Customarily, yes, although my understanding of the practice at the present time is, in all States other than in South Australia, for the particulars to contain an allegation concerning the commercial quantity. In South Australia apparently the particulars contain both the quantity and the commercial quality or trafficable quality of it, but if those particulars are part of the indictment, the Crown is undertaking to prove that the quantity was the commercial or trafficable quantity.
GLEESON CJ: There is some statutory provision, is there not, that says that if you think it is heroin, it is heroin? To cover the substitution of plaster of Paris or whatever they do.
MR M.F. GRAY: I am not sure, your Honour.
GLEESON CJ: Well, you can have a look at that over lunchtime.
MR M.F. GRAY: I will have a look at that.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
GLEESON CJ: Yes, Mr Gray.
MR M.F. GRAY: Your Honour, on the question of trial by judge alone I could perhaps assist your Honours with some of the material we have obtained. It would appear that trial by judge alone, apart from South Australia, is in Western Australia by virtue of section 651A of the Western Australian Criminal Code, by section 16 of the New South Wales Criminal Procedure Act and by section 68B of the Supreme Court Act of the Australian Capital Territory.
I can say, in the brief time looking for other provisions of the Commonwealth law also that are sort of similar or pari passu with these provisions of the Customs Act, has not at this stage turned up anything, although there is a provision I would like to contemplate in relation to the Taxation Act but I think really, certainly from our point of view, we would like more time to just see what Commonwealth offences are. They are not readily apparent anyway.
GLEESON CJ: There was an assertion, as I understood it, made in I think in the written submissions of the intervener, to the effect that at Federation the corresponding laws were of this structure.
MR M.F. GRAY: Yes. I took that and the reference to the statute that was referred to to be a reference to that rather somewhat unusual structure of, I think, sexual offences which contained a whole series of different penalties that occurred having regard to the sex of the victim and the age and matters like that.
Certainly, I am not aware of any other offences that readily sprang to mind in relation to that, although I will be putting to your Honour that the concept of defining an offence and then making provision for varying penalties is a procedure which seems to have been accepted by the courts and, indeed, Bright's Case, the (1916) 2 KB case, is an example of a description of statutory aggravations in relation to offences, and if I can, I will just come to that shortly in a minute. As far as the argument in Kingswell is concerned, that your Honour directed my attention to before the adjournment, at page 266 it was Mr Porter who opened his argument with an argument that:
"Offence" in s. 80 means a combination of facts which make the accused liable to a criminal penalty. If there is another ingredient to be added which will cause an increased penalty, there is a different offence.
He also put, as I read it, the alternative argument at page 266 at about point 9:
If the two matters are not necessary ingredients of the offence, they are, nevertheless, circumstances of aggravation which produce an increased punishment for the same offence.
So the issue was before the court in Kingswell and, of course, it was dealt with in, really, the four different ways. The three judges who formed, ultimately, the majority dealt with it in terms that an offence was not, or did not have, any meaning in terms that would give what Mr Porter said a definition that had to be applied in terms of Justice Brennan. He, of course, in effect, adopted, I think, in what he was saying, that sort of concept with an elaboration concerning the extent of the punishment forming part of the ingredients of the offence and his Honour Justice Deane, for his part, was of the view that, and this is at 319 going on to 320, that section 80:
requires that the trial of the whole offence of which a person stands accused and in respect of which he stands threatened with punishment should be by jury. That requirement involves the identification of what are, as a matter of substance, the elements of the relevant offence -
and deals with it in that way as though the different punishments became elements of the offence itself.
KIRBY J: But you are supporting the contention that it is just entirely up to Parliament to split up the elements of the offence and provide that some only of those elements be tried by jury, notwithstanding the purpose of section 80.
MR M.F. GRAY: I do not have to go that far, your Honour - - -
KIRBY J: You do not have, but we are entitled to test where you do go.
MR M.F. GRAY: Yes.
KIRBY J: Where do you go?
MR M.F. GRAY: What I am saying is that the question of exposure to a greater punishment is not of itself an element of the offence and Parliament is entitled - - -
KIRBY J: Does that mean that you accept then that whatever is the element of the offence, let it be called the essential element of the offence, must be tried by a jury?
MR M.F. GRAY: Yes, your Honour.
KIRBY J: Well, why is not something upon which turns a difference between a relatively trivial imprisonment and life imprisonment, which is the highest penalty now known in Australia, something that is part of the essential element of the offence?
MR M.F. GRAY: Because it is not an essential element of the offence itself. It is a circumstance, when the offence has been made out, that will determine the punishment. It is that distinction I draw because offence of itself does not have any sort of generic description that would deny you determining the legal elements of the offence and having those matters determined by the jury, and prescribing certain circumstances which, when that offence has been made out, will determine the penalty in relation to that.
KIRBY J: Do you accept that, for determining whether an amount of an illegal import is commercial or trafficable, that is purely a question of objective fact and that the intent or knowledge of the accused is irrelevant?
MR M.F. GRAY: Yes, I do, your Honour, but also - - -
KIRBY J: So upon something which is - you see, as I read the section on that theory, the person could be importing some prohibited import, not necessarily a drug; it could be a bird or some other object, and yet it turns out to be a drug and of a certain quantity and then the person is subject to life imprisonment on conviction. It seems an odd example.
MR M.F. GRAY: If that is the quantity.
GLEESON CJ: What is the direction that would have been given to the jury in the present case, if there had been a plea of not guilty and the jury were being instructed on the state of mind necessary to make one of these appellants guilty of the offence charged?
MR M.F. GRAY: A direction in terms that if the jury were satisfied, beyond reasonable doubt, that the accused was knowingly concerned in the importation of that which he knew, believed or understood was a prohibited import, then that person should be convicted of the offence.
GLEESON CJ: There is not a great deal of authority on this subject, I had thought. It is not still an open question, is it?
MR M.F. GRAY: No. It is difficult to find authorities which deal with the question of the prohibitive import as a generalisation as opposed to particular goods which are identified and are usually the subject of the charge.
GLEESON CJ: No one suggests that to be knowingly concerned in the importation of a commercial quantity you have to go along with a set of scales and weigh it or have been told by somebody what the quantity was, but what is the fact that is in issue that the jury would have had to determine in the present case in that connection? Would the jury have been told, for example, that their only concern was whether an appellant was knowingly concerned in the importation of some heroin and they need not concern themselves about the quantity?
MR M.F. GRAY: Yes, except in so far as it has been charged in the indictment as a circumstance of aggravation where they would then be asked two questions. One, whether the accused was guilty without regard to whether or not it was a commercial quantity or not and then, have the jury determine the issue of commercial quantity.
GLEESON CJ: Yes, well now what would the issue be? What would the jury be asked in that second regard?
MR M.F. GRAY: Whether, in fact, the amount was the commercial quantity.
GLEESON CJ: Whether the appellant knew it or not?
MR M.F. GRAY: Whether the appellant knew it or not.
GLEESON CJ: So they would be asked, in effect, to bring in a general verdict on the issue of whether he was knowingly concerned in the importation of some heroin?
MR M.F. GRAY: Yes.
GLEESON CJ: And then they would be asked to bring in a special verdict on the question of the quantity of heroin which was the subject of the importation in which he was knowingly concerned?
MR M.F. GRAY: Yes.
GAUDRON J: They would be asked to find how much was involved? Would they be asked was it a commercial quantity or a trafficable quantity or would they be asked to determine if it was a commercial quantity and then, if they said no, asked if it was a trafficable quantity and if they said no, that was the end of that? How does it work in practice? Your client must prosecute these almost daily?
MR M.F. GRAY: It is not necessarily with this issue arising, because - - -
GAUDRON J: No, but regardless of the issue, what happens in practice? What does the jury decide in practice before the trial judge sentences, assuming other than not guilty?
MR M.F. GRAY: The jury determines guilt on the question of knowingly concerned in the importation and either yes or no to a question of less or more than a commercial quantity, depending upon - and/or trafficable quantity, depending upon what the issue is before them, having regard to that circumstance.
GAUDRON J: And this is all despite the fact that "the Court"
apparently means "the sentencing judge".
MR M.F. GRAY: Yes. But that is the consequence of adopting the Bright rule of practice in accordance with Kingswell. That puts before the jury that issue and then the sentencing judge sentences in accordance with, and not inconsistent with, that which the jury has found.
GLEESON CJ: And do you then say that the sentencing judge, on the question of penalty, would usually regard it as material to make a decision as to the subjective understanding of the appellant about the matter of quantity, if any?
MR M.F. GRAY: Yes, which, in its own rough definition, might aggravate the offence or mitigate it.
GLEESON CJ: It might be one of a number of possibly countervailing considerations.
MR M.F. GRAY: Thank you, your Honour. Yes.
CALLINAN J: It mitigated it here, did it not? The trial judge said that he would reduce it because he accepted what the applicant's counsel claimed about their - - -
MR M.F. GRAY: His initial involvement in relation to it was, yes. And in the case of one of the co-accused, mitigated it in relation to him, but in the case of the other, I do not think he was prepared to do so.
GUMMOW J: What you referred to, Mr Gray, as happening at trials, was that limited to experience in South Australia or Australia-wide?
MR M.F. GRAY: No. That was as a result of an inquiry that was made Australia-wide.
GLEESON CJ: I think Justice Gummow was asking you not about your information concerning section 65(1)(a) of the Criminal Code of Western Australia but about the answers you were giving to me and to Justice Gaudron concerning what would have happened in this case.
MR M.F. GRAY: Yes, that was my understanding.
GLEESON CJ: And that would happen Australia-wide?
MR M.F. GRAY: As I understand it, yes.
HAYNE J: That juries are required to return a general verdict and a special verdict?
MR M.F. GRAY: Can I say this: as I understand it, the issue rarely arises in these sort of cases because the contest really is not on the question of whether it was or was not a commercial quantity.
HAYNE J: Which brings me back to how issue is joined on these particulars. If there is one offence, I can understand issue being joined about the commission of the offence. If there are two offences, then we lead off into the difficulties that the other Mr Gray has identified. What I do not understand is how issue is joined between prosecution and defendant at trial on this, on your analysis, subsidiary question of particularisation. Especially do I not understand it in face of what I had understood Kingswell to hold, that the word "court" in 235 relevantly referred to the sentencing judge, not the tribunal determining guilt or innocence.
MR M.F. GRAY: Issue has to be joined on a not guilty plea.
HAYNE J: I would like to know how the words of commitment of the issues to the jury could properly run in those circumstances, but that is to elevate form over substance perhaps.
GAUDRON J: Is the jury told that they must determine commercial quantities, trafficable quantities, whatever it be, beyond reasonable doubt?
MR M.F. GRAY: Yes, your Honour. Indeed, even this Court, I think, has finally settled that the court has to determine those questions beyond reasonable doubt if it is the judge on sentence.
GAUDRON J: What part of the Act brings about that consequence? Is there a specific provision.
MR M.F. GRAY: Sorry?
GAUDRON J: Is there a specific provision that brings about that consequence?
MR M.F. GRAY: No, your Honour, no.
GUMMOW J: And how far back does this practice go?
MR M.F. GRAY: As I understand it, since Kingswell. That was instituted, in effect, as a consequence of the decision in Kingswell.
GUMMOW J: Yes. So I know this is not your affidavit. It does not come from you admittedly, but the question then is in the affidavit put on by the Attorney-General how many of these 470 people - a question is - were convicted on pleas of guilty or not guilty?
MR M.F. GRAY: Could your Honour leave the question hanging in the air?
GUMMOW J: Yes.
MR M.F. GRAY: I cannot answer that.
GUMMOW J: No, but it may be an important question to know on special leave.
MR M.F. GRAY: Yes.
HAYNE J: And I would be much assisted to know how often what you have described as the practice throughout Australia has been given effect to on the ground at trial.
MR M.F. GRAY: Yes, your Honour. I would like the opportunity - - -
HAYNE J: Yes, of course.
MR M.F. GRAY: - - - of course, of addressing that. Yes.
GAUDRON J: And does it follow from what you have said thus far that on a plea of guilty - well, it would follow from what you said, would it not, that there could be a plea of guilty with a request that there be a special verdict on the trafficable or commercial quantity, even though that is not the practice, but it would follow - - -
MR M.F. GRAY: If that is not - no, although that - - -
GAUDRON J: - - - and it would follow - - -
MR M.F. GRAY: - - - might not be the practice, I cannot at the moment see why not.
GAUDRON J: Except for the fact that it says "the Court" and the court seems to be the sentencing judge because the court can - - -
MR M.F. GRAY: Yes. It is a question of putting it in sequence really because the reason for the jury's verdict is the specification in the indictment of the circumstance of aggravation, so that once it goes into the indictment as a circumstance of aggravation it is a matter that the jury can be charged with and I think that is why the practice probably is to then require, in effect, a plea of not guilty if there is a dispute as to the quantity.
GLEESON CJ: Well, what happened in the present case? Nobody suggested that a jury ought to have been empanelled, did they?
MR M.F. GRAY: No.
GLEESON CJ: So the representatives of the appellants announced to the court that their clients would plead guilty. The plea of guilty was entered. Nobody suggested that there was anything outstanding for a jury to determine and the trial judge went ahead and sentenced them.
MR M.F. GRAY: Yes.
GLEESON CJ: And the only disagreement between the trial judge and the Court of Criminal Appeal was a disagreement on a point relevant to the sentencing.
MR M.F. GRAY: Yes, and probably taking that a step further, there was no disputed fact hearing, which is the other way of joining issue on pleas of guilty when you dispute facts.
GLEESON CJ: But having made an unsuccessful motion to quash the indictment on the basis of the section 80 argument, the defence case was thereafter conducted - indeed the case on both sides was thereafter conducted on the assumption that the plea of guilty eliminated the necessity for any jury verdict about anything.
Yes, your Honour. Yes, I cannot take that any further. Your Honour the Chief Justice in the Court of Criminal Appeal in New South Wales in a case of Albert Kam Chuen Lee v The Queen (1994) 76 A Crim R 271 had occasion to consider both in its context the case of Kingswell and the English case of Bright and that was a case under the Drug Misuse and Trafficking Act of New South Wales and the particular passage that I would refer the Court to is at page 285 where, in the middle of the page, your Honour refers to the case of Bright, to the concept of statutory aggravations of offences and your Honour makes the observation:
It is to be noted that the passage deals with three different kinds of circumstances of aggravation. The first kind, which is not presently relevant, and may be put to one side for the purposes of the discussion, is the kind of aggravation that affects where a sentence will fall within an available range; for example, the degree of premeditation that went into a crime, or the fact that the offender was on bail at the time, or the existence of a motive which is irrelevant to the legal quality of the offender's conduct but may make it more blameworthy. The second kind is a circumstance which, if it exists, alters the legal nature of the offence. The third kind, which is presently relevant, is a circumstance which alters the available maximum penalty.
And your Honour then goes on to discuss the issues of charging the circumstance of aggravation in the indictment and the effect of the decision of Kingswell in the earlier New South Wales cases of Martin and Kingswell itself. But there your Honour is at least recognising the question of a construction of an offence, which may be an offence of a kind which refers to circumstances which alter the available maximum penalty, but do not alter the legal nature of the offence and a somewhat similar approach was - - -
GLEESON CJ: Can I just interrupt you to say the explanation of this procedure that you have described to us earlier appears at the bottom of page 287 and at the bottom of page 288.
MR M.F. GRAY: Yes, your Honour.
GLEESON CJ: Where people in New South Wales took the view, after Kingswell, that a certain course should be followed and that then gave rise to Meaton.
MR M.F. GRAY: Yes, that is so, your Honour. The issue in Meaton as to whether the failure to observe that rule of practice ultimately was a matter that, in fact, caused a miscarriage of justice. Your Honours will see at page 289 that the law applicable to the circumstance of the present case is clear at about point 4 and that that sets out those circumstances.
To a similar effect was the decision of the Court of Criminal Appeal in the Reg v Hietanen [1989] SASC 1909; (1989) 51 SASR 510 which my friend referred to. Without going to that decision, to say to your Honours: that was in the context of one offence causing bodily harm by driving with maximum penalties varying according to the criteria specified in the legislation. That was held to be one offence, it being Parliament's plain intention that it be regarded as one offence. Again, of course, that determination was made in the light of the decision in Kingswell. In a sense, I am using something to prove itself, but the concept - - -
GLEESON CJ: These cases all follow Kingswell.
MR M.F. GRAY: Yes, they do, your Honour.
GLEESON CJ: But your opponent is seeking to pull the rug out from under the lot.
MR M.F. GRAY: But I am putting them in terms of the fact that it is open to the Parliament, I say - and, of course, its question being, to a certain extent, as to what effect section 80 might have on this, but it is open to the Parliament and does no violence to the concept of an offence to define an offence and then to provide circumstances relevant to penalty outside of the definition of "the offence". Indeed, that is the way the majority in Kingswell approached this, as a matter of construction of what the Parliament had done with section 233B and section 235, and their reasoning in that regard is at page 273 and following. There they say that:
An examination of the provisions of the Customs Act 1989 does not support the argument that the Parliament intended that s. 235(2), read together with each paragraph of s. 233B(1), should have the effect of creating a number of distinct offences whose elements are to be found described partly in s. 233B(1) and partly in s. 235(2). The words of s. 233B(1) and (3) could hardly indicate more plainly that it was intended that each paragraph of s. 233B(1) of itself creates an offence and that a person who is guilty of such an offence is punishable on conviction as provided by s. 235.
They then go on to deal more particularly with the section.
HAYNE J: Can I ask you how you say that conclusion that you have just taken us to is properly to be related to what the majority say about the rule of practice laid down in R v Bright? What is the status of this rule of practice? Once we have established that, how does that come into the prosecution of Commonwealth offences? Thirdly, so that you can see whether my thinking is troubled at the moment, how does that fit with the conclusion expressed by the Chief Justice in Lee that failure to comply with the rule of practice does not lead inevitably to a conclusion of miscarriage?
The difficulty I have is that it seems that you have a rule of practice injected into this process, whence I know not, and how, in face of the conclusion about the meaning of the word "court" in 235 at the moment, I do not understand, and yet it is a rule of practice which, if you breach it, does not inevitably lead to the conclusion, "Oh well, there is a miscarriage of justice, the trial is unpicked". So, how do all these things, on your contention, fit together?
MR M.F. GRAY: Well, the rule of practice is injected into it from the bottom of 278 and on to 279 but it is said to be a rule that is not affecting the substantive issue of the offence.
HAYNE J: That is, is it something that is identifying a more desirable form of pleading practice in criminal matters, a more desirable form of pleading practice being that the accused is on notice from the indictment that matters of aggravation are alleged. Is that what is intended?
MR M.F. GRAY: That is as I read - - -
GLEESON CJ: It must be that, must it not, because if you look at the actual result of Kingswell the appeal was dismissed.
MR M.F. GRAY: That is right.
GLEESON CJ: On page 281, three-quarters of the way down the page, the majority said:
The practice which ought to be observed was not followed in the present case. However - - -
MR M.F. GRAY: Yes, with respect, your Honour.
GUMMOW J: Where in federal law is the source of this? None is given, is it, in Kingswell?
MR M.F. GRAY: No, your Honour.
GUMMOW J: Except what Mr Justice Darling, who I do not think stands very high in the pantheon, said in Bright in England.
MR M.F. GRAY: Yes.
GUMMOW J: Well, did it get into it some way through 68 of the Judiciary Act? I can understand how it applies in State law.
MR M.F. GRAY: Yes.
GUMMOW J: But then the question is how does it stand with the specific requirements of the Customs Act, that being a specific Commonwealth law? That does not seem to be addressed.
MR M.F. GRAY: You can only, I would think, pick it up by section 68.
GUMMOW J: Yes, notwithstanding the specific treatment of the word "court", the phrase "court" in the Customs Act. That does not seem to be adverted to in Kingswell.
MR M.F. GRAY: No, no, it does not. It is not.
GUMMOW J: Those passages in Kingswell were written as if there was no federal system, number 278 and 279.
MR M.F. GRAY: Yes, or alternatively, that the practice and procedure is picked up by section 68 of the State courts.
GUMMOW J: Then there is the question I just mentioned as to how 68 stands with a specific Commonwealth law.
GLEESON CJ: What did Justice Brennan say about this?
MR M.F. GRAY: Justice Brennan, your Honour, said - I think at about page - he relies on, at page 291 at the middle of the page, a:
common law principle that a conviction on indictment, whether by plea or verdict, determines the extent of the offender's liability to punishment -
and puts it in terms of:
The question is whether s. 80 denies the Parliament power to abrogate that principle.
GUMMOW J: I understand that completely.
GAUDRON J: I think what he said about the court and section 68 and the practice is said by him and Justice Deane in a joint judgment in Meaton and they say it is all hogwash, basically.
MR M.F. GRAY: Yes, your Honour.
GLEESON CJ: In dissent.
MR M.F. GRAY: In dissent. That is so and they point up - - -
GLEESON CJ: What they say, more accurately, is that it cannot work with - they are supporting their view of section 80 as expressed in Kingswell, are they not?
MR M.F. GRAY: They are, your Honour.
GAUDRON J: I think they are saying that it cannot work consistent with the view of the majority in Kingswell.
GUMMOW J: Because of the construction of the Customs Act.
GAUDRON J: They say there are only two proper alternatives, the one they took or the majority one, which leaves this all for the trial judge.
MR M.F. GRAY: Yes, but if one goes back to the rule of practice in relation to this, the Bright rule, if you like, there the question of penalty in any event is for the judge sitting without the jury, yet that rule requires a verdict of the jury on that issue in the indictment, even though what is charged is what is said to be a statutory aggravation. Your Honour is looking at Meaton at page 369.
GUMMOW J: Yes, the bottom of 369, last paragraph.
MR M.F. GRAY: The comment is made:
Such a modification of the practice would simply furnish an accused with an incentive to plead not guilty if he wished to have the issues tried by jury or guilty if he wished to have them tried by a judge. That kind of choice is alien to the criminal law.
GUMMOW J: No, the next paragraph. Justices Brennan and Deane are saying it is in fact inconsistent with Kingswell.
HAYNE J: If you only have one offence, you cannot charge circumstances of aggravation. It would be like charging murder with the circumstance of aggravation that the accused plotted for a long time before doing it.
MR M.F. GRAY: But that is, with respect, your Honour, what Bright says you can do and should do.
HAYNE J: I am not sure that that is what Bright holds at all, but let us not stay to debate that.
GAUDRON J: What was the charge in Bright?
MR M.F. GRAY: Some form of treason, I think.
GAUDRON J: I did not know there were different forms, Mr Gray.
MR M.F. GRAY: I am indebted to my friend. He pleaded guilty to a charge of attempting to elicit information with regard to the manufacture of war material contrary to the Defence of the Realm Consolidation Regulations.
GLEESON CJ: If you look at the headnote in Bright, assuming it is accurate, it turns on whether:
the offence is by statute punishable by a more severe sentence if accompanied by circumstances of aggravation -
I think you or somebody used the expression " statutory aggravation" this morning.
MR M.F. GRAY: Yes, I did.
GLEESON CJ: And that is consistent with what is said in Archbold's Criminal Pleading Evidence & Practice cited on page 368 of Meaton.
HAYNE J: If you go to Bright, you find that the offence is dealt with in regulation 57 of the DORA regulations:
A person found guilty of an offence.....by a court-martial -
I assume, is it?
MR M.F. GRAY: No, by assizes, I think.
HAYNE J: But a suitable example, whether or not applied in Bright, would come from regulation 57:
A person found guilty of an offence.....shall be liable to be sentenced to penal servitude for life or any less punishment, or if the court finds that the offence was committed with the intention of assisting the enemy to suffer death or any less punishment -
I can well understand "if the court finds that the offence was committed" might, in the context of that set of regulations, be construed as "on a jury finding" but, once Kingswell takes the step of saying that "court" in 235 equals sentencing judge, not tribunal of fact, certain consequences seem to follow, do they not?
GAUDRON J: And if you look at regulation 56A it does say in relation to the assizes:
provided that a sentence of death shall not be imposed unless the jury find that the offence was committed with the intention of assisting the enemy -
which would seem to really make it an element of the offence, in much the same way as was explained in Kingswell in relating to Courtie, was it?
MR M.F. GRAY: The concept of a graduated series of matters for penalty have been regarded as the circumstances of aggravation in relation to offences. Can I take your Honours to Sabapathee v The State [1999] UKPC 31; [1999] 1 WLR 1836, a recent decision of the Privy Council. That was dealing with offences against the law of Mauritius and in particular to the provisions of section 38 of the Dangerous Drugs Act of 1986. That section is set out at page 1838 and that provided that:
The court which tries a person for an offence under -
particular sections, concerning drugs:
shall.....make a finding whether the accused person is a trafficker in drugs.
And on making that finding, certain consequences of a greater or lesser extent occur.
Now, that section had been the subject of an earlier decision where it was held that:
section 38 did not create any separate offence.
And that appears at page 1845. Citing again another Privy Council decision of Mohammed Mukhtar Ali v The Queen, and the passage at about point four where it was said:
It is true in a sense to say that the fact of the accused being a trafficker constitutes an aggravating circumstance, but the effect of the aggravation is that the accused is liable to a more severe penalty, not that he has committed a separate and different offence from that created by any of the enactments referred to in subsection 38(1).
Reference is then made to Kingswell and, in particular, to the:
close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist.
Of course, that, as far as Justices Brennan and Deane are concerned, is not a distinction that they would allow in terms of the way that they have considered what is meant by an offence. There is then a discussion about the rule of practice in Bright and applying it, in effect, to this sort of situation and reaffirming the correct view of section 38 being a statutory aggravation of the offences mentioned in subsection (1), and then discussing Kingswell in terms of whether or not it would have been proper to have specified the previous conviction aspect of section 235 in relation to the sentence and then drawing a distinction at page 1847D, which is relevant to the present case:
between those kinds of aggravation which form part of the facts which constitute the offence charged and those which are independent of those facts.
GAUDRON J: That is against you, and it is against what has been taken from Kingswell, is it not?
MR M.F. GRAY: No, your Honour, not if the offence is constituted separately from the circumstances of aggravation. It only means that there are some circumstances of aggravation which one need not plead in the indictment if one is going to wish to rely upon them subsequently. Because they are expressly saying that even though they form part of the facts which constitute the offence charged, they are, nonetheless, circumstances of aggravation and I say are not elements of the offence.
GAUDRON J: But they say:
An aggravation which relates to the circumstances in which the offence was committed.....will normally form part of the facts relating to the offence charged. That kind of aggravation will need to be established at the same time as the question whether the defendant is guilty of the offence.
What they are really saying, it seems to me, is that where the circumstances relate to the offence charged, and it attracts what is said to be a statutory aggravation, is really an element of the offence.
MR M.F. GRAY: That is where - - -
GAUDRON J: In fact, they say earlier up that they prefer the view of Justice Mason - and this is in the context of previous convictions - and they would not go as far as the majority in Kingswell, did they not?
MR M.F. GRAY: Yes, they certainly say that, your Honour. They say:
It is not in accordance with the practice which is still followed in the English courts, by which questions as to the defendant's previous convictions are left to the decision of the trial judge.
But I am relying upon that in relation to its tenor of not incorporating even those facts which are related to the offence itself as being elements of the offence and I am saying that you can have that circumstance, which does not of itself mean that the offence is defined in terms of that aggravation as an element.
HAYNE J: Their Lordships say at E that:
Where it -
that is this aggravation -
is independent of those facts the evidence to establish it cannot form part of the evidence against the defendant relating to his guilt -
As I understand your submission, the quantity involved here is aggravation that is independent of the facts constituting the offence.
MR M.F. GRAY: Yes.
HAYNE J: Does it, therefore, follow that if the principles here described were to be adopted, evidence of the quantity found would not be admissible at trial? If that is so, how does that fit with pleading particulars of the kind that we see in this indictment?
MR M.F. GRAY: It is not a question of not being admissible at the trial, your Honour, as to the quantity. The quantity would be admissible but it is not - its proof is not proving an element of the offence.
GLEESON CJ: You mean it might go to an issue as to his knowledge, for example, or an issue as to what he saw on a particular occasion if what he saw was a truckload full of white powder?
MR M.F. GRAY: Yes.
GLEESON CJ: As distinct from a small purse containing some white powder?
MR M.F. GRAY: Yes.
GLEESON CJ: The position may be unfortunately even more complicated, Mr Gray. There was, and for all I know in some jurisdictions in Australia there still may be, a spirited controversy on which some members of this Court on a former occasion, particularly Justice Stephen, had something to say about whether a trial judge after a jury brings in a verdict of guilty of manslaughter should question the jury as to the basis upon which they made that finding. The current state of the law, as I understand it, in New South Wales is not only that it is not obligatory for the trial judge to question the jury in that regard, but that the trial should not question the jury in that regard and that it is both within the power and the responsibility of the trial judge to make up his or her own mind, but that might involve the trial judge for purposes of sentencing coming to a view of the facts possibly different from a view of the facts that the jury or different members of the jury had held.
You can have a jury bringing in a verdict of guilty of manslaughter, for example, where some of them thought there was diminished responsibility and some of them thought there was provocation and that is one of the reasons for not asking the questions, but Justice Stephen in a case in this Court says it was the duty of a trial judge following a verdict of guilty of manslaughter to ask the jury on what basis they found manslaughter. That kind of thinking may be behind or in part behind this rule of practice, that is that common law judges were not unacquainted with taking special verdicts from juries or taking answers to questions from juries for the purpose of sentencing.
MR M.F. GRAY: Yes, although once again I go back to the concept here of what was described in Bright as "statutory aggravation" and there you are asking a discrete and separate question if you put it in the indictment.
GLEESON CJ: I was not suggesting that that manslaughter example had anything to do with aggravation; I was simply raising it as an example of cases where some people used to take the view - for all I know some people still may - that it is proper to take a verdict of a jury on a matter to assist the sentencing judge.
MR M.F. GRAY: Yes. I cannot say whether that was behind what was said in Bright. nor does it appear to have been behind what was said in Kingswell, and Kingswell was concerned really with the question of the construction of the offence itself and its concomitants.
GLEESON CJ: It does, however, tend to blur the distinction between the concept of the court, meaning the judge as the decision maker for all purposes of sentencing and the responsibility of the jury.
MR M.F. GRAY: With respect, I accept that, your Honour, it does tend to.
GLEESON CJ: What I understand to be the modern view is that the sentencing judge can and must decide for himself or herself the facts relevant to sentencing when the limits are imposed by the verdict of the jury.
MR M.F. GRAY: Yes, consistent with the jury's verdict, your Honour. I do not know that I can add any more to that, your Honour.
GLEESON CJ: Thank you, Mr Gray. Yes, Mr Solicitor.
MR BENNETT: If the Court pleases, I propose to deal with matters in the following order: firstly, the question of special leave; secondly, the question of definition of "offence"; and thirdly, the principal supporting factor in relation to definition of "offence", which is the controversy about whether the Parliament can make something indictable or not indictable as well. May I start then with the issue of special leave - - -
GAUDRON J: But that is not really the question in this case, is it, whether it can make something indictable or not indictable at will? The question is whether it can define a matter as a matter of statutory aggravation rather than an element of a defence and thereby defeat section - - -
MR BENNETT: Yes, I accept that fully, your Honour, that is why I put it the way I put it, but the principal argument against the proposition that the Parliament can define an offence in a particular way is that that would enable the general and important principle of the section to be circumvented and it is an argument against that, that the section can be circumvented in any event by simply defining it in a particular way. That point was made by the majority in Kingswell - - -
GAUDRON J: It is not simply defining it as indictable or summary, but there is more to it than simply defining it as an indictable or summary offence, is there not? If it is a summary offence, you are not arrested and charged, you are proceeded with by way of summons. So, it is not simply a question of semantics.
MR BENNETT: I would not accept that, with respect, your Honour.
GAUDRON J: You do think it is simply a question of semantics.
MR BENNETT: Yes, your Honour. One could have an offence which was not indictable which was punishable summarily, but which involved all the panoply of the criminal law in relation to matters such as arrest and so on. There would be no reason why one could not do that. That, as I will demonstrate, was recognised from the convention debates onwards. But we accept that that whole debate - although it has assumed an enormous role in everyone's written submissions and a lesser role in the oral submissions, we accept that that debate is only one factor in relation to the real question before the Court, but it is an important factor in relation to the question.
GAUDRON J: The opposite point of view is that if you are right on your contention that the Parliament can simply, by the use of its words, determine what is indictable and what is not, or simply declare it, then all the more reason for giving "offence" in section 80 an expansive meaning so that it, at least, has some work to do.
MR BENNETT: Your Honour, the work is conditioned on using one formula, why does it need to be conditioned on another formula? We would submit that it has the opposite effect and the reason for that is - - -
GAUDRON J: It just seems to me though, it is not a very powerful argument. One has to look at the words of the Constitution; one has to apply traditional methods of constitutional construction to those words and see where that leads. It does not seem to me to be any part of the jurisprudence of this Court that if a provision of a constitution is of limited operation in one regard, it is, therefore, to be construed of limited operation in another. I do not know of any principle of constitutional construction that says that.
MR BENNETT: That is not the way we put the argument, your Honour. The way we put the argument is that one starts by saying that the Parliament is free to define an offence any way it wishes.
GAUDRON J: No, that begs the question.
MR BENNETT: It does, your Honour. That is the first argument which I have not got to yet. I am just dealing with why I am putting the second argument before the third argument. One starts with demonstrating, by argument, that one can define an offence and what is taken into account on sentence, in any way one likes. The Parliament is free to do that. One argument against that is that it would be surprising if, it is said against us, Parliament could sit by simply putting all the major elements in the aggravation basket, take away from the jury various important decision-making functions and thus reduce the effectiveness of what someone described as a fundamental constitutional guarantee.
Our answer, by way of replication, to that, is that it is not a fundamental constitutional guarantee, in other respects it can be avoided by semantic devices and there is no reason why it should not be in this area. But it is put as replication to an answer, not as a supporting - - -
GAUDRON J: It does not seem to me to be a persuasive methodology, I have to say, because it seems to be - it is a provision in the Constitution, the words are taken to have some meaning and effect and one ascertains what their meaning and effect is by accepted methods of constitutional construction.
MR BENNETT: Yes.
GAUDRON J: And one of those is to have regard to the fact that it is a guarantee, albeit of a limited nature.
MR BENNETT: Yes, your Honour. I do not dispute that, but one also has regard, it is said against us, to the fact that the construction for which we contend would render the section able to be avoided by the Parliament or circumvented by the Parliament. To that we answer, it can anyway. That is the way it comes in. I do stress it comes in in an argumentative sense by way of replication, not by way of declaration or statement of claim.
May I first deal with the question of leave. Your Honours, we have provided the Court with an affidavit. The important point about the affidavit is this, that paragraph 5 - the basic statistic, as your Honours see, is that there are 681 federal prisoners altogether.
GUMMOW J: We do not know how many are in there because they pleaded guilty.
MR BENNETT: We do not know that, your Honour.
GUMMOW J: Can we be told? It can be important.
MR BENNETT: Your Honour, I can certainly have inquiries made.
GUMMOW J: We can receive all this material on the special leave aspect, and it seems to me one would like to know.
MR BENNETT: Yes, your Honour.
GUMMOW J: That is to say what, in fact, is happening with Kingswell in practice.
MR BENNETT: Your Honour, I will have that done and seek leave to file a further affidavit in seven days.
GUMMOW J: Yes.
MR BENNETT: It is objective, factual material.
GUMMOW J: Yes.
MR BENNETT: But the point we make is this, that of the 681 federal prisoners, something just under three-quarters are there for offences under this section.
GAUDRON J: Mr Solicitor, I do not know quite how the affidavit links in but let all that be assumed in your favour in terms of the affidavit, that the Kingswell methodology is observed in practice throughout the whole of Australia, so that on one view the Constitution is being observed, albeit by accident, and perhaps there is also no miscarriage of justice in circumstances where there is no issue as to the quantity, as seems no objective. But this is a demurrer. This is not a case where things really took their course. Somebody says this section is invalid now.
MR BENNETT: Yes. Your Honour, it is put really, I suppose, although not in a formal sense, not so much on special leave as on leave to reopen Kingswell which, in turn, would be a reason for refusing special leave.
GUMMOW J: Yes, yes.
MR BENNETT: So one gets it in that way, if one likes. But what we say is very simple. The facts demonstrate that, since Kingswell, a practice has been followed in reliance on what the majority of this Court said in that - - -
GAUDRON J: But it was not really the majority, was it - on which three Justices of this Court said.
MR BENNETT: Yes, your Honour.
GAUDRON J: Justice Mason did not agree in that, did he? He said there is a practice in Queensland. Queensland Criminal Code says that matters of aggravation are to be picked up, but Justice Mason did not endorse this practice, did he?
MR BENNETT: The challenge in this case, your Honour, is not to the practice; the challenge is to the central proposition about the right to a jury. What is said by our learned friends is that the practice does not cure it. The challenge is not, as I understand it, to the practice making something which would otherwise be valid, invalid - - -
GAUDRON J: But I thought you said that matters had proceeded on the basis of the practice adopted by the majority.
MR BENNETT: Matters have proceeded on the basis that Kingswell is correct and that, therefore, this section did not require amendment and that it could be used in prosecutions and it has, without amendment, to cure the problem.
GAUDRON J: The question in Kingswell did not relate to the quantity though, did it? It related only to whether or not there was a prior conviction.
MR BENNETT: Yes, but subject to the distinction drawn in the Mauritius case, that does not affect the argument here.
GAUDRON J: The distinction drawn in the Mauritius case seems to be the very one that Justice Hayne drew attention to earlier, and may well be precisely what is involved here when you come to the meaning of section 80, separate to the meaning of "offence".
MR BENNETT: I am sorry, I am not making myself clear. Kingswell decided that the relevant provisions of the Customs Act, the method by which sentencing had been separated and the consequence that, as a matter of law, the matter was ultimately dealt with by the trial judge, whatever practice was followed in relation to matters going to the jury first, was a valid constitutional practice.
GLEESON CJ: The issue that arose for determination in Kingswell was the validity of section 235. That appears from page 266 of the report, and following the submission that section 235 was invalid, there was an adjournment, notices under section 78B were given and then interveners turned up and the argument proceeded.
MR BENNETT: That is my point, your Honour. This Court decided the section was valid. The Parliament and the prosecution authorities have acted on that basis for 15 years. As a result of that, some hundreds of people who have been - - -
GUMMOW J: They have not acted on that basis, you see. That is what we extracted from Mr Gray.
MR BENNETT: But the action on that basis, before one gets to the practice - the practice is a different matter; it is a separate issue - - -
GAUDRON J: That is what they have been acting on, the practice, rather than the words of the statute.
MR BENNETT: Parliament has acted on Kingswell by not amending the section.
GAUDRON J: Or not acted, as the case may be.
MR BENNETT: Your Honour, it is a powerful form of action in the present circumstances because there is no doubt that if this Court in Kingswell had reached the opposite result, there would have been an amendment which would have broken a number of records for the speed of parliamentary enactment. That amendment would have either made them separate offences so the jury determined it, or, if Kingswell had said that for one reason or another one could not convert offences into summary offences, it might have led it that way. But it did not and, as a result, the other two branches of government have proceeded for 15 years on the basis that this section is valid and that things can be done under it. It is now sought to bring an appeal to this Court in which that is to be challenged.
GUMMOW J: But the Executive, it seems to me, have been adopting a practice that is not consistent with the statute as such.
MR BENNETT: But that practice is not what is challenged here.
GUMMOW J: I know that.
GAUDRON J: No, but the fact that the practice was suggested and advocated in the judgment of Gibbs, Wilson and Dawson is really like in one sense the thirteenth strike of the cuckoo clock. It would not be advocated, it seems to me, or even suggested if the construction of both section 235 and of section 80 were unarguably correct. You just would never even think about that practice.
MR BENNETT: No, you would not, your Honour, unless one says in the countries where there is no relevant constitutional provision such as the United Kingdom and such as the States in relation to purely State offences, a practice has been referred to in some cases. That practice is seen as desirable. By coincidence it produces a similar but not identical result to that which would be reached if that view were taken of section 80 and section 235 and the Court in really what is a dictum, I suppose, endorses the practice. Now, in this case there is not a challenge to the practice. My learned friend has not come here complaining that a matter was left to the jury which should have been decided by the judge. He comes with - - -
GLEESON CJ: Well, as I understand it, no one suggested at first instance in the present case that a jury should be empanelled to make any determination of fact.
MR BENNETT: Precisely, your Honour. This case does not involve any of those issues and if this Court is of the view that the practice is unnecessary, undesirable or wrong but that the section is valid and the primary finding in Kingswell is correct, my learned friend fails and there is, therefore, if that is the Court's concern, this case is not one in which leave should be granted.
GLEESON CJ: As I understand it, the only connection in which the practice has been queried is that people in cases like the one in New South Wales referred to where the practice was not followed have sought to have their convictions set aside on the ground that there was a miscarriage of justice.
MR BENNETT: Yes.
GLEESON CJ: But apart from those circumstances, who would have an interest to complain about the practice?
MR BENNETT: Well, precisely, your Honour. The problem with the practice, of course, is what would happen in the converse case. What happens where the accused says, "I do not want the aggravation of circumstance to go to the jury. I want it to be decided by the judge." The judge says, "No, no, I must leave it to the jury." And then there is an appeal in that situation. That would be the situation which would squarely raise the problem, but that is not the situation we have here.
As to two of my learned friend's clients, the issue was determined by the judge and determined favourably to the accused. So they can hardly complain about it one would have thought. I mean, they complain about the invalidity of the section, but in relation to the practice they can hardly have any complaint and in relation to the third of the accused, the third appellant to this Court, Bach An Chan, he never suggested that the issue of aggravation should go to a jury and he could have achieved that result. He could have achieved that result very simply in the method referred to by Justices Deane and Brennan in the second case by pleading not guilty.
All he has to do is say, "I plead not guilty but I notify the Crown in advance and I inform the judge and the jury at the beginning of the case that my plea is on the basis that I want the jury to make the determination that it would otherwise have to make and I, in fact, admit all the elements of the offence." There is nothing to stop him doing that any more than there is anything to stop an accused formally pleading not guilty and then admitting the facts and having it left to the jury whether his admission should be accepted. So it is open to the accused to have that matter determined by the jury.
It was open to him to submit, whether rightly or wrongly, and probably wrongly, that the practice should accommodate a jury where the facts were otherwise admitted and there was a plea of guilty, although it is hard to see how that could be done, but that was not submitted even, but, no, my friend simply pleads guilty. Pleads guilty to an indictment which refers to the aggravating circumstances, not as aggravating circumstances, but as particulars of the offence itself, so he pleads to the facts - and I will make that good in the course of my submissions - and then complains when the judge determines the issue adversely to him that the practice in some way operated to his disadvantage.
GLEESON CJ: What do you understand - what, in your submission, is the relationship between the existence or desirability of what you have called the practice and the validity of section 235?
MR BENNETT: None, your Honour, none at all.
GLEESON CJ: What were they doing discussing it in Kingswell?
MR BENNETT: Your Honour, far be it from me to say why the Court chooses to express views or - - -
GLEESON CJ: The case about the practice is really Meaton not Kingswell, I would have thought.
MR BENNETT: Yes it is, your Honour.
GLEESON CJ: And whatever was said, I would have thought, about the practice in Kingswell was obiter, but the practice was a matter that was the subject of the holding in Meaton.
MR BENNETT: If your Honour wants one to speculate, one would say the Court was divided very deeply on the issue and as a concession to the dissenting Judges the majority decided to refer to this practice with some approval.
GLEESON CJ: Well, in the present case, are we being asked to reconsider Kingswell or to reconsider Meaton or both?
MR BENNETT: Your Honour, that is the difficulty I have, and that is one of the reasons we submit there should not be a grant of leave. My friend's case is and should be, and as I understand it is, the section is invalid, full stop, independently of the practice. Proposition two: the practice does not save it. I would rather concede proposition two, which rather makes discussion of the practice irrelevant.
GLEESON CJ: Well, may be a case in which to reconsider Meaton would be a case where the question of the practice was of importance to somebody.
MR BENNETT: Precisely, your Honour, and it is not in this case; it simply does not arise.
GUMMOW J: Well, it does for me, because it is a question that goes into the factor of special leave. There is a challenge to Kingswell on the basis - well, prima facie, one would say it has stood for all these years and one would not relevantly disturb things, where there are a lot of people who would be let out who should not be let out, basically; there are a lot of people who are in there, and in there on a basis which, by accident, conforms to what it said in constitution mandates, well that is perhaps another factor to go into account in deciding whether to reopen this, what, to my mind, is a very unsatisfactory state of affairs.
McHUGH J: Mr Solicitor, I did not follow the point you were making that you said it was open to the appellants to say that the accused could have pleaded not guilty, admitted such factors as knowing about the importation and so on, and if I understood you rightly, you said they could have asked the jury to determine in aggravating circumstances.
MR BENNETT: Yes, the reason I say that is this, your Honour.
McHUGH J: Before you answer, can I tell you the difficulty that I have?
MR BENNETT: Yes.
McHUGH J: The jury could only determine those matters if they were part of the offence, could they not?
MR BENNETT: Your Honour, the practice rather seems to go beyond tha. The practice seems to suggest that the judge says to the jury - he asks the jury in the normal case where everything is in issue, two questions: he says, one, did the accused import heroin; two, was the aggravating factor that it was in excess of a commercial quantity, present? If the jury say yes and no, he sentences on the lesser basis; if they say yes and yes, he sentences on the higher basis; if no to the first question, of course, the accused is not guilty. That is, what I understand, the practice to be.
McHUGH J: Well, I understand that may be the practice. It does not seem to me to have any basis in the sections.
MR BENNETT: One can see that, your Honour, but may I just answer the first question. If one has an accused who says, "I did it, but I dispute the amount of mens rea as to the amount, so I want to raise that issue alone; I am guilty of an offence, but not of the aggravating circumstance" - - -
McHUGH J: What do you mean by "mens rea" in this context, because there is no mens rea, is there? There is a - - -
MR BENNETT: He Kaw Teh says it is an element.
McHUGH J: But the onus is on the accused.
MR BENNETT: He Kaw Teh says it.
McHUGH J: Does it?
MR BENNETT: No, the prosecution bears the onus of proving mens rea, your Honour, beyond reasonable doubt, and He Kaw Teh [1985] HCA 43; 157 CLR 523 said that.
McHUGH J: Yes.
GLEESON CJ: As I understand what happened, Mr Solicitor, Kingswell was decided by a Court of six. Next year, counsel came along to this Court in Meaton and said "Kingswell has created confusion in New South Wales and it requires clarification and, for that reason, special leave ought to be granted", and special leave was granted. And the Court sat a Court of five, being the same people as had sat in Kingswell, minus Justice Mason. And the same group of three, who did not form a majority in Kingswell, formed a majority in Meaton and clarified the law.
MR BENNETT: Yes, that is so, your Honour. But if I can just finish answering Justice McHugh, if one has an accused then who says "I want to dispute the aggravating circumstance, but not the offence", and whether it is because of mens rea or not does not matter for this purpose. Perhaps it might be simpler to exclude mens rea and just treat it as an accused who disputes the Crown's weighing machine, and says, "There was less than you say there was, or you added something to it".
Now, it would be open to such an accused to say to the Crown, quite openly, what he intends to do, then come to the trial, announce what he is doing, plead not guilty; make it clear that he is admitting the elements of the offence except that one, then evidence is called by the Crown and him in relation to the other matter and the jury is asked the two questions. The first question is a very simple answer, because he has admitted it; and the second question, the jury answers one way or the other. That way the accused gets what one might call the benefit on sentence of having, in effect, pleaded if he wins the second issue because, although he has technically pleaded not guilty - - -
McHUGH J: Does the second issue mean knowledge that they were prohibited imports?
MR BENNETT: No. I meant in the example I put, the fact that it was over a certain amount. The fact that it was a larger commercial quantity, not - - -
McHUGH J: How do you get that out of the section?
MR BENNETT: You do not, your Honour. I am talking about the practice, and I am still dealing with special leave. I am justifying the proposition that it was open to the third appellant, if he wished to, to have the issue that was determined against him by the trial judge determined by a jury, and was open for him to do so without risk of increased penalty because he pleaded not guilty. In other words, he could still claim for all practical purposes the mitigating factor of a plea of guilty by telling the Crown what he is doing and why he is pleading not guilty; going to trial, in effect, on the aggravation issue alone and, if he wins that, he is obviously clearly in the same position on sentence as someone who has pleaded not guilty, and would no doubt be treated accordingly.
So that is why we submit that the issue in relation to the practice simply does not arise in this case. The only issue that arises is the validity of the section. And as to the validity of the section, we make the submission that has been determined by this Court. It has been acted on by the section not being amended and being used. The consequences of a different view being taken by this Court to that which was taken by the majorities of this Court in the 1980s would be drastic, indeed.
GUMMOW J: Well, how do we know that?
MR BENNETT: What the affidavit shows - - -
GUMMOW J: But it is an incomplete picture.
MR BENNETT: If the section is invalid, it would not matter whether they pleaded guilty or not guilty because if the section is invalid, they would be able to bring special leave applications to this Court whether they pleaded guilty or not guilty. If one pleads guilty to a non-existent offence, the correct decision for a court, or a court on appeal, is to acquit.
McHUGH J: They may be in a Bond situation, they may be serving sentences longer than they should have. In other words, if 235 is out then two years may be the maximum sentence they could have been sentenced to.
MR BENNETT: Yes, your Honour, but that would be in a context where that provision was held valid 15 years ago.
McHUGH J: Yes, I understand that.
MR BENNETT: All the John factors, we would submit, are against that being reopened such a short time after they were decided before and - - -
McHUGH J: What I put to you was meant to help you, Mr Solicitor. I was pointing out to you that if 235 is invalid, then it would appear from your affidavit that almost everybody who is in there for an offence against 233B, or whatever it is, has probably been sentenced to a longer period of imprisonment than they lawfully should.
MR BENNETT: And on one view of it - - -
McHUGH J: On one view, maybe should not have been sentenced at all because the whole edifice comes tumbling down.
MR BENNETT: Yes, depending on severance, yes.
KIRBY J: Does not one add up as against these propositions of convenience, first of all, loyalty to the Constitution; secondly, the fact that there has always been this seed of doubt by a number of Justices of the Curt and, thirdly, the cumulation of the loss of liberty of very large numbers of people imprisoned in this country who are entitled to look to this Court to uphold the Constitution?
MR BENNETT: Yes, your Honour, but the Constitution involves a determination of this Court as to what it means. That, in turn, involves all the doctrines of constitutional law including stare decisis. The Court has said on a number of occasions, and one goes back to Territorial Senators and cases of that sort, that considerations of stare decisis are of importance in construing the Constitution and need to be taken into account, particularly where the constitutional interpretation has been acted on for a long period as is the case here.
When your Honour says there has always been a doubt - this involves getting into the argument and the detail - but we will demonstrate that in the convention debates, the very issue which is raised, as to the construction of section 80, was considered and put at rest by an amendment designed to deal with that very problem and make it unambiguous.
KIRBY J: But implicit in that argument is a proposition which, at least, I do not accept, and that is that the Constitution is to be interpreted according to, and by reference to what the convention debates assumed it would mean.
MR BENNETT: No, your Honour, it is not where the convention debates - - -
KIRBY J: I mean, that is what you are trying to urge, that because the people who were making the Constitution assumed it would mean one thing but we, a hundred years later, are bound to their understandings. I simply do not accept that.
MR BENNETT: No. Well, I do not put that, for a moment. It is not what they assumed it would mean. It is what they intended it to mean and specifically directed their minds to and the reason why they use particular words. This is not a case where one has the sort of ambiguity, or the sort of general word, where one can say one takes an originalist view as to what was intended or one takes a living, breathing Constitution view as to what was intended. This is a case where the framers of the Constitution looked at the section. It was said this may have the meaning my learned friend seeks to give it. They, therefore, amended the section specifically saying, "We are amending it to make it clear that it does not have that meaning but has the meaning we seek to give it", and I will demonstrate that. Now, in that situation - - -
KIRBY J: I would be willing to accept the terms of the argument that you can demonstrate that. I simply say that this is not only an originalist view of the Constitution; this is a subjective originalist, which is doubly offensive. That is just my opinion.
MR BENNETT: Your Honour, we submit it is a matter of principles of interpretation of words and language.
KIRBY J: This is a Constitution we are construing here.
MR BENNETT: Yes, your Honour, but a Constitution in which the rule of interpretation which allows one to look at that sort of amendment is one which, we would submit, is very much to be taken into account. So far as the other point of history is concerned, we would also demonstrate that there is really only one judgment prior to the 80s of two Justices which took a view and at least one of those Justices subsequently refused to allow the matter to be reopened. That view was taken at a time when the constitutional debates could not be looked at and to some extent, although it was obvious that they knew what was in there and to some extent there was almost a deliberate blinkering that one reads in the - - -
McHUGH J: I am not sure that they did look at it. In fact, I am almost certain that they did not because, in Lowenstein's Case, having cited the views of Justice Higgins and saying that that was a queer intention to ascribe to the Constitution, it was Justice Higgins, who was Mr Higgins at the Constitution, who had made it very clear what he thought about it.
MR BENNETT: Yes, that is so, your Honour. Then it is picked up in the 1980s by two Justices. In my respectful submission, that is not a long history of controversy and dissent. There are - I have forgotten the number - eight or nine cases I think we have cited where the section has been held to have the effect which we seek to ascribe to it. So, in all those circumstances, we submit that the case does not raise the primary issue which the Court has expressed concern about, the validity or desirability of the practice. It is an inconvenient vehicle so far as that is concerned. So far as the pure constitutional question is concerned, it flies in the face of John and raises the issues we have referred to in the affidavit, and for those reasons we submit the special leave should be refused.
HAYNE J: Can I take you back to one aspect of the leave argument and the significance of the so-called practice, in particular whether the practice has been to obtain a verdict of the jury about the intention of the accused, that is whether the accused knew, understood, desired that he or she would knowingly participate in the importation of a specified quantity. Could I invite attention to 235(2)(c) and ask you how the practice to which reference has been made fits with the words of 235(2)(c) without first identifying what is meant in (2)(a) or (b) by the use of the word "offence" and without identifying in (c) what is meant by "the narcotic goods in relation to which the offence was committed", and in particular identifying in the course of those inquiries what specific intent is required to commit whatever may be the offence thus identified amounts to? So when one comes to examine, if at all, the significance of this practice in determining whether leave should go or not in this matter, for my part I would be assisted by knowing not only how many cases this has been a live issue in, but what has been seen to be the live issue.
MR BENNETT: Yes. I would have to make inquiries, obviously.
HAYNE J: Obviously so.
MR BENNETT: May I just say this, your Honour - and if I am proved wrong, I am proved wrong - but one would have thought that if one starts with He Kaw Teh and says that one needs mens rea under section 233, that is a starting point. So then one says - an accused comes along and says, on the example that your Honour is putting to me, as I understand it, "I admit three of the four things. I admit importing a quantity of heroin. I admit that I knew I was importing a quantity of heroin and intended to do so. I admit, thirdly, that the heroin was a commercial quantity but I thought it was only a trafficable quantity".
Now, in that situation, if the accused raises the issue in that way, I would have thought, but I do not know, that the practice would be that the jury would have to be asked the specific question.
HAYNE J: As to knowledge?
MR BENNETT: As to knowledge.
HAYNE J: Well, how that fits with He Kaw Teh and how that fits with the construction of the sections is a point that, at the moment, is not self-evidently obvious.
MR BENNETT: Your Honour, it is not self-evidently obvious how the practice fits at all with the section.
HAYNE J: Indeed, until you have first caught your offence Mrs Beaton style, you cannot start working out what the required specific intent is.
MR BENNETT: I am going to get on to the merits now, your Honour. I have made my submissions on the special leave.
McHUGH J: Well, when you are dealing with this, since you have raised this Gotterdammeral argument about what will happen if this section is struck down, I would be interested to know what happened as a result of He Kaw Teh because I had forgotten that it dramatically changed the law. When I was at the Bar the ruling authority was Bush v Rawcliffe which I was in and then other cases, and the onus was then on the accused to prove. Many people were convicted on a view of the law which He Kaw Teh said was wrong. Now, what happened then? There must have been a lot of people in gaol even in those years who had been convicted on a wrong - - -
MR BENNETT: Your Honour, I do not know the answer again but may I make this submission, that there is a huge difference in practical effect between, on the one hand, the Court making a technical decision about what factors should or should not be taken into account in relation to a particular offence which may or may not apply to a number of past situations where counsel are no longer specifically acting and people in the gaols do not have the access and so on, on the one hand, when maybe someone will find out and bring a leave application out of time, but maybe not and on the other hand, the invalidation of a section with all the publicity attendant on that under which over 70 per cent of Commonwealth offenders in gaol are in gaol - - -
GAUDRON J: But they could still be charged with State offences.
MR BENNETT: Yes.
GAUDRON J: It is not as though - and the same may have been true following He Kaw Teh that people who had to be released because of that decision could be charged with State offences or there could be a retrial.
MR BENNETT: Yes.
GAUDRON J: It is true that there is a difference but the difference, it seems to me, is not so large when there are State offences with which they can be tried if section 235 falls to the ground and offences which are no less serious and attract, I think, no significantly different penalty and which, in fact, are prosecuted regularly when the Commonwealth, by arrangement between the Commonwealth and the State, as I understand it, that the State will prosecute the State offences and the Commonwealth will just have the Commonwealth ones go by the board.
MR BENNETT: Yes. Well, there is two matters in relation to that. First, of course, the enormous cost and inconvenience, but that is a factor that is to be weighed, but, secondly, there may well be issues of double jeopardy and I am not sure that autrefois acquit could apply in a case where the first conviction is quashed on the basis that the section was invalid - - -
McHUGH J: And they prosecuted Mr Ridgeway, did they not, under the Sate law?
MR BENNETT: Yes. Yes, I do not think that there would be an autrefois acquit argument but there might be Chapter III arguments about double - I hate to suggest Chapter III arguments to this Court but the - - -
GUMMOW J: But can we just look at section 80 for a minute, Mr Solicitor? I am sorry to be tedious about this but it is important, I think. No one has in actual fact taken us to yet but it just gets flourished around like a flag. It seems to have three branches to it. The first one tells you that the trial "shall be by jury" and that is a constitutional requirement.
MR BENNETT: Yes.
GUMMOW J: It does not require the implementation by legislation but it looks, it seems to me, as to what happened, in other words, someone comes along and says, "I was not tried by jury". The second stage:
every such trial shall be held in the State where the offence was committed -
As I understand it, there is no legislation that says that.
MR BENNETT: No.
GUMMOW J: But if a trial were held in the wrong State, there would have been a wrongful conviction because of the Constitution.
MR BENNETT: I think that is raised in a matter that is either on its way to your Honours or has been heard by your Honours from South Australia in a conspiracy case where there were elements in different States - - -
GUMMOW J: We might have dealt with that.
MR BENNETT: Yes, your Honours may have dealt with it, yes.
GUMMOW J: The third branch though, is:
if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
It is prescribed in section 70 of the Judiciary Act; that tells you. These people who are in prison on the Gotterdannerung argument, how would they be able to say that they were not tried by jury if they had been?
MR BENNETT: They would not raise - - -
GUMMOW J: It would not be a question of invalidity of any of these sections.
MR BENNETT: They would say, your Honour, that - - -
GUMMOW J: If the sections operate to produce a particular result in a particular case by reason of executive and judicial as well as legislative activity, that is one thing. But if they do not, they do not. You look at the particular man, you would not say, "Were you tried by jury?", in their situation.
MR BENNETT: They would say, your Honour, that one of the elements of the offence - because there are, on the appellant's argument - - -
GUMMOW J: In other words, how could they show a violation of section 80?
MR BENNETT: Because they would say the trial was not by jury in a circumstance where all the elements of what they say is the offence determined by the jury and determined by the jury as a matter of right under the section, that being what the section prescribes. I assume that is how it would be put. But, that issue applies even more strongly, of course, to these appellants. I mean, that may be a reason why the appellants fail.
GUMMOW J: I am not sure that section 80 really is a restraint on legislative power as it has been said to be. It may just produce a particular result or may not produce it.
GAUDRON J: And which the applicants in this case say, we have not had our trial by jury.
MR BENNETT: They pleaded, of course.
GAUDRON J: Well, it is a very big question as to what they pleaded.
MR BENNETT: Yes, I will come to that. That is something else I am going to come to.
GUMMOW J: It just seems to be that section 80 is self-executing in its first two branches, but not in its third.
MR BENNETT: Yes. I would like to think about that overnight, if I may, your Honour.
GUMMOW J: Yes, I would be grateful for any assistance on it.
MR BENNETT: Yes, certainly, I will do that.
McHUGH J: Well would not their argument be, or has to be, that they have been imprisoned for a longer period than they can be - or I am not even sure that is right.
KIRBY J: But they would have to move it back to the word "offence".
MR BENNETT: Their argument would have to be, I would have thought, your Honour, that, as my learned friend puts it, at least the two paragraphs, and possibly the whole section, in section 235, are invalid, because they would say, as I understand it, that because those sections provide for part of the determination whether an offence has been committed, to be decided by the judge, they are invalid. That is the way my friend puts it. Now, if what your Honour Justice Gummow puts to me is correct, that is a further reason why my learned friend is out of court and why the issues raised simply do not arise in this case, because he does not come here from a jury case. But I will deal with it in the morning.
KIRBY J: That only by reason of a ruling which was made at the beginning his demurrer was overruled.
MR BENNETT: Yes, your Honour, yes, that is so, but that goes then to the question of the effect of the plea. May I turn next to the question of the meaning of the word "offence" in section 80? Your Honours will see that the word "offence" appears in the phrase "any offence against any law of the Commonwealth". As was pointed out in Colina, with the special exception of contempt, which is in a special category because it - - -
GUMMOW J: I am sorry to interrupt you, Mr Bennett, but in the course of dealing with the matter I raised, of course, the way section 4G of the Crimes Act is framed I think may be consistent with what I was putting to you. That would have to be taken into account in the matters you are considering I think.
MR BENNETT: Yes.
GUMMOW J: And I just did not want it to slip.
MR BENNETT: Yes, if your Honour pleases. So one starts with the words "any offence against any law of the Commonwealth". That suggests without any assistance from authority or elsewhere that one looks to the law of the Commonwealth to see what the offence is. It does not suggest that there is a technical word "offence" being used - and it has been said, of course, the word does not have a technical meaning - which in some ways limits what is being described.
The word is, to use the modern metaphor, a vanilla word. It is a convenient general word being used to described what takes place, but what it is saying is where someone is charged with doing something which is rendered illegal and rendered punishable by Commonwealth law then certain things follow and one has to look to that law to see what it is. Now, the case put against us in relation to that is to say, "No, the word `offence' has a technical meaning, that meaning being the particular facts which give rise to a particular maximum punishment." And if the facts give rise to a range of maxima, then it is a number of offences. If the - - -
CALLINAN J: Why could it not mean "giving rise to any punishment"?
MR BENNETT: That is what we say, your Honour, that is sufficient for our purposes.
CALLINAN J: Well, why read it down in any way? Why not read it up, as it were, expansively?
MR BENNETT: That is what we want to do, your Honour. That is my submission. But my friend's submission - - -
CALLINAN J: Then it could cover any offence. All offences against Commonwealth law have to be tried by jury.
MR BENNETT: If there were an indictment, yes. I am coming to the meaning of "on indictment", that is the second part of the argument. But at this stage, I am dealing with the words "any offence against any law", and dealing with the argument my friend puts which says, "You give a technical meaning to `offence', and having given `offence' that technical meaning, you cannot then have any part of what constitutes that offence determined otherwise than by the jury". So, one could not say, for example, if my learned friend is right, that if one has an offence where one element is very obvious or completely objective, such as whether one has a prior conviction or whether one has attained a particular age or whether one has a particular gender; the matters as to which there may be dispute, as to which it is unlikely to be dispute, the Crown cannot legislate to have those matters taken from the jury.
He says that you take the very technical meaning of "offence", maximum penalty, and once you have that every element which gives rise to it is part of the offence, and that is the end of it. He gets that from a number of English cases, specifically the decision of the House of Lords in Courtie (1984) 1 AC 463. In that case there is a discussion of what is the offence, for various purposes, and in the course of that it is said that circumstances of aggravation giving rise to a higher maximum sentence are matters that are within that definition. But Lord Diplock also says in his speech at page 468D:
It lies within the power of parliament to modify or exclude by statute either or both of these basic principles of English criminal law and to do so either generally or in relation to particular offences -
although one then construes the statute in the light of those if it is not made clear. Now, one asks why one should construe section 80, and construe the word "offence" in such a way as to say that unlike the English Parliament the Australian Parliament is not to have the power to override this common law approach to what is or is not to be included in what goes to the jury.
KIRBY J: Do you really ask that? I mean, the English Parliament is a parliament without the limitations which the Constitution imposes on the Australian Parliament. And to see what the Constitution imposes on the Australian Parliament, you look at the words and you look at their purpose and, therefore, the way English judges approach the power of their Parliament is really quite misleading to the search which we must conduct for the meaning of section 80.
MR BENNETT: Yes, your Honour. But where one has a common law principle which can be, and is from time to time, overridden by Parliament in the English context, why would one assume the contrary in the Australian context? And I will demonstrate in a moment that there were sections prior to 1900 in Australia which contain the sort of aggravation situation and which drew a distinction between one offence, and a number of offences, that one has here.
So there is simply, we would submit, no reason for applying this highly technical meaning of the word "offence", inserting it into section 80 and then developing from that the conclusion that my learned friend seeks to draw from it.
GUMMOW J: As to the invalidity of these sections.
MR BENNETT: Yes, your Honour. And that is what he sets out to do.
GLEESON CJ: As at the time of the Constitution, what were examples of trials of offences on indictment that might not be by a jury? Perhaps you could look at that overnight.
MR BENNETT: Yes, I am just thinking aloud, your Honour. The contempt, of course, was always in a special category.
GLEESON CJ: Triable summarily.
McHUGH J: They are done by information.
MR BENNETT: There were certainly summary offences. I suppose there were periods in the very early days of the Australian colonies where there were not juries, but that is going back to very early days. I am not sure what the position was in relation to bankruptcy offences at the turn of the century under the State Bankruptcy Acts, but I will have a look at that your Honour and see if I can find - - -
GLEESON CJ: If you would want to look at it through modern eyes, you might find in the early provisions of the Environmental Offences and Penalties Act of the State of New South Wales, a provision for trial of certain offences by a Supreme Court judge on indictment.
MR BENNETT: Yes, and, of course, as has been pointed out, in at least three States in Australia and one Territory, an accused, when prosecuted on indictment, may elect for a trial by judge alone on the indictment.
GLEESON CJ: Mr Solicitor, we will adjourn now. But, Mr Gray, Justice Kirby wanted to ask you a question.
KIRBY J: It was actually I meant to ask a question of Mr Gray for the respondent, if I may, and I apologise for not having done this before, and it is this: on the pages 14 to 20 of the applicants' written submissions there is quite a detailed argument, which was passed over quite briefly at the end of the applicants' oral arguments concerning mens rea and with special reference to the particular applicants. Now, I have looked through your written submissions and I may have missed it in your oral submissions, but I do not see any attention to these questions, which we have to address. Is the respondent going to give the Court assistance on how we should deal with those questions or are you going to content yourself with looking at what one might call the big picture questions in this case? There are also a couple of little miniatures hovering around.
MR M.F. GRAY: There are a number of little miniatures.
KIRBY J: I mean, we do have to address them, because they have been put to us and, speaking for myself, if there is anything the respondent wants to say, well, I will welcome having them, but otherwise I have got to try and work it all out for myself, without assistance.
MR M.F. GRAY: Yes, your Honour, if your Honour would permit, I would address that. The way I framed my argument really related more to the question, was directed more to the Kingswell point rather than this particular point.
KIRBY J: I know you have, but I am saying we have had arguments advanced to us - as I understand it, we are dealing with this as an application for special leave but on the footing that if special leave is granted we deal with the whole appeal.
MR M.F. GRAY: Yes, your Honour.
KIRBY J: Therefore, we have to deal with the mens rea questions and they really are quite detailed and specific and I think the respondent, as the Crown, has to help the Court.
MR M.F. GRAY: Yes, your Honour.
KIRBY J: I simply raise the matter now. It is up to you.
GLEESON CJ: We will adjourn until 10.15 tomorrow morning.
AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 5 APRIL 2000
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