The Queen v Gee & Anor A13/2001 [2002] HCATrans 193 (19 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A13 of 2001

B e t w e e n -

THE QUEEN

Applicant

and

ROBERT GORDON POLLYBANK GEE and HANS ADALBERT THALLER

Respondents

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 APRIL 2002, AT 9.47 AM

Copyright in the High Court of Australia

MR C.J. KOURAKIS, QC: If the Court pleases, I appear with MR D. PETRACCARO for the applicant. (instructed by the Commonwealth Director of Public Prosecutions)

MR W.J.N. WELLS, QC: If the Court pleases, I appear for the first respondent. (instructed by Jon Lister)

MR S.W. TILMOUTH, QC: May it please your Honours, I appear for the second respondent. (instructed by Hans Albert Thaller)

GAUDRON J: Yes, Mr Kourakis.

MR KOURAKIS: If the Court pleases, it was in September 1932 that this Court held in the case of Seaegg that the jurisdiction conferred by section 68(2) as it then stood did not extend jurisdiction to the State courts to hear appeals against sentence brought by persons convicted of Commonwealth offences. It was within just three months of that decision that the Commonwealth Parliament introduced the amendments to section 68(2) extending the jurisdiction from, being a jurisdiction only as to trial and conviction, to a jurisdiction extending to appeal. It has been held since that those words clearly extend to what I might call the common form appeal provisions, appeals against conviction and sentence in the more modern form and, indeed, extend to appeals brought by the Crown against sentence. The question in this case was whether they extended in fact to the reservation of questions of law from interlocutory decisions at trial.

GAUDRON J: Your problem is section 72, is it not, of the Judiciary Act?

MR KOURAKIS: Yes, it is on the basis of section 72 that the Full Court of the Supreme Court held that the otherwise wide construction that would be given to the word "appeal" should be read down. In our submission, Chief Justice Doyle correctly adopted the prima facie approach in paragraph 77 of his judgment, and that is to hold that the word "appeal" was in its natural construction, natural meaning, wide enough to extend to cases such as this and further rightly identified that the amendment itself was ambulatory in the sense that it was meant to pick up subsequent State provisions. In our submission, he erred in the significance he gave to section 72.

Your Honours, the first point we make about that is that section 72 provides not just for reservation of a question of law from a Supreme Court justice to the Full Court of the Supreme Court, but importantly allows for a case stated directly from a Supreme Court justice to the High Court, and of course makes provision for a High Court Justice presiding over a trial to state a case to the Full Court of the High Court. So the continued existence of those provisions can be explained on a basis other than wishing to reserve the special procedure in section 72 for cases stated to the extent of limiting - - -

GUMMOW J: Section 72 has been there since the beginning in one form or another, has it not?

MR KOURAKIS: Yes, it has. The other reason we put for contending that the Chief Justice placed too much weight on section 72 is this, that although expressed in terms of a reservation of a question of law, as indeed his Honour correctly identified, in effect it provides for an appeal on a question of law. If, as is accepted, the word "appeal" and the extended jurisdiction provided for by the amendment includes the common form appeal provisions, which included an appeal on a question of law, that very extension to a large extent rendered section 72 nugatory or with very little work to do in the State context in that appeals on questions of law, whether procedurally expressed as a reservation of a question of law or as a straight-out appeal, were from 1932 on to be dealt with according to the State provisions picked up by section 68.

Indeed, the point we made in the court below was that those very State provisions allowed a discretion on the part of the Courts of Criminal Appeal to require an appeal on a question of law to be stated as a case. So the very common form appeal provisions picked up by section 68 once it was amended included within them the scope for the State courts to switch from a - - -

GAUDRON J: Yes, thank you, Mr Kourakis. We think we might be assisted at this point by hearing from the respondents.

MR KOURAKIS: If the Court pleases.

MR WELLS: If the Court pleases, the submissions made on behalf of respondent Gee are principally that the decision of the court below was clearly correct. We would invite your Honours to also consider this: that there is no comparable legislation in other States which permits an interlocutory case stated on admissibility of evidence, including the exercise of a discretion associated with the admissibility of evidence. On the contrary, sections 72 to 77 of the Judiciary Act asserts and maintains the policy which is clearly a Commonwealth policy against the fragmentation of the criminal trial process. Section 72 to 77, dealing with the reservation of a question of law and the stating of a case, do not allow that fragmentation, but pursue a policy which requires the matter to be raised after verdict. It may well be before judgment, but it will always be after verdict.

If the Court pleases, could I invite your Honours to turn briefly, in the materials provided by those instructing my learned friend, to the case of Seaegg, and, in particular, in the joint judgment of the Court on page 48 of the materials, which is page 256 of volume 48 of the Commonwealth Law Reports. Looking in particular at what their Honours said towards the bottom of that page, in our submission, there is no reason to doubt the correctness of the conclusion of this Court in Seaegg, when it said of section 72 to 77 that it contained:

a code of procedure for an appeal by way of case stated upon a point of law raised at the trial. These special provisions confer a different and narrower right of appeal and different but perhaps wider remedies.

That decision, it would appear, if the Court pleases, was not cited to the Court of Criminal Appeal in Queensland in the case of Cook, which the court below declined to follow. The consequence of that proposition about section 72 to 77, that is, of it being a code of procedure, is that it - - -

GUMMOW J: We are in the position, though, are we not, Mr Wells, that there seem to be conflicting decisions in intermediate appellate courts in the States.

MR WELLS: Your Honour, on the face of it, that is true - - -

GUMMOW J: I understand it is said that the South Australian section is unique.

MR WELLS: Yes. The Queensland case, your Honour, Cook, was a case concerning the reservation of a question of law following an acquittal, that is, at the conclusion of the trial. The consideration of jurisdiction occupied only a paragraph in their Honours' judgments, and does not appear to have been otherwise fully explored, beyond citing the earlier South Australian decision which was not followed by the Court of Criminal Appeal in this case. But can I put this to your Honours. If one says, as, for example, Justice Bleby in dissent said, in the court below, that sections 72 to 77 were retained in the Judiciary Act as a safety net - or, as my learned friend calls it, a minimum appeal right - a closer consideration of that reveals that that is not a tenable position to occupy.

Can I demonstrate it in this way - and the purpose of my doing this is to demonstrate the full viability of sections 72 to 77. If your Honours go, in the materials, to the Judiciary Act section and, in particular, page 9 of the material, your Honours will, of course, find section 72 and subsection (1), in effect, provides that, on the trial of:

an indictable offence against the laws of the Commonwealth, the Court -

must reserve a question, if an application is made on behalf of an accused person, and otherwise, "may in its discretion" reserve a question, "either before or after judgment". Then 72(3) requires the presiding judge thereupon to state a case.

It is clear, however, from sections 72 and 73 that the statement of the case and the hearing of the stated case does not proceed in an interlocutory fashion; it proceeds after verdict and, in particular, after a verdict of guilty. Your Honours, can I put this example: supposing the trial judge, hearing a case in which there is alleged an indictable offence against the laws of the Commonwealth, admits evidence over objection and that ruling raises a point of law. The accused applies to the trial judge to have the question of law reserved. So far the procedure can be accommodated either by section 72 or by section 350 of the State Act.

Under the State Act section 350, the trial judge has a discretion to reserve the question and may stay the proceedings until the question is determined on a case stated. Under section 72 the trial judge has no discretion. The question of law must be reserved and a case stated, but there is no stay. The trial proceeds to verdict. If the trial judge, faced with that application of the accused, is disposed to stay the proceedings, what is he or she to do about section 72? The case put on behalf of the applicant is that, effectively, section 72 is to be ignored and we would ask, rhetorically, by what language is sections 72 to 77 to be treated as optional in those circumstances, bearing in mind that this Court has already said in Seaegg that this is a code of procedure in relation to questions of law reserved by way of a case stated that is - - -

GAUDRON J: But there is no provision there, is there, for the prosecutor to have reserved a question of law?

MR WELLS: No, your Honour, there is not and, indeed, the language admits only of this conclusion, that because, as this Court has said, what we are looking at in section 72 to section 77 is a code of procedure, it has these two features or elements, namely it is exclusive - - -

GAUDRON J: The question is, can it really properly be regarded as a code in the face of section 68 and in the face of the definition of "appeals" in section 2?

MR WELLS: The answer to that, your Honours, is that the definition section, section 2, commences with the usual statement, which is intended to have its effect, namely that the definition applies "unless the contrary intention appears". Now, if true effect is to be given to that, then what is contended for is that the existence of sections 72 to 77, prescribing the procedure in relation to questions of law that are to be reserved, provides and indicates the contrary intention. Hence one does not in those circumstances read "appeals" in section 68(2) to extend to questions of law reserved on a case stated. We would add that one does not read that to extend to questions of law reserved in an interlocutory fashion, that is before verdict, because sections 72 to 77, in our respectful submission, make it quite clear that the policy lying behind those sections is that there should be no interruption of the trial.

GAUDRON J: Well, it may well be that one possible view, at least, is that section 70 covers applications made by an accused person but says nothing about pre-trial applications by the prosecutor.

MR WELLS: Your Honours, in our respectful submission, that would be a view which certainly was not shared by this Court in Seaegg and it requires, in our respectful submission, a quite different and historically radical characterisation of sections 72 to 77. It has to be said - - -

GAUDRON J: Was that particular definition of "appeal" always in the Judiciary Act?

MR WELLS: Yes.

GUMMOW J: But at the time of Seaegg, 68(2) was not in the same form, was it?

MR WELLS: No, your Honour, because Seaegg precipitated an amendment which included in subsection (2) the reference to "appeals".

GUMMOW J: Well, "or out of any proceedings connected therewith".

MR WELLS: Yes, that is right.

GUMMOW J: That is your problem, I suppose, in continuing to nail your flag so strongly to what they said in Seaegg about the relationship between 68(2) and sections 72 and following in Division 3, I think.

MR WELLS: Your Honour, that depends, with great respect, on what it is said the amendment was intended to effect which, of course, has been the subject of discussion in this Court in the subsequent decisions of Williams and Peel, those separate decisions. If I could invite the Court to look briefly at the application book page 85 in the reasons for judgment of Justice Duggan, we would respectfully contend that there is no reason to doubt the observations made by his Honour appearing at paragraphs 112 and 113, but in particular at 112 where his Honour refers to the intention lying behind the amendment to section 68(2), his Honour being well aware, of course, that that had been the subject of discussion.

GAUDRON J: The first sentence of paragraph 112 cannot be correct, can it:

to extend to Commonwealth offences the type of appeal which had existed -

On any view, it must mean which then existed and might come into existence, because the intention was that Commonwealth offences should be subject to the same procedures as State offences, was it not?

MR WELLS: Subject, however, to what the Judiciary Act otherwise provided.

GAUDRON J: That, of course, is true but the first sentence cannot be correct. You cannot say that it was intended to freeze the procedures to those that had then existed.

MR WELLS: Your Honour, in our respectful submission, that is not really what his Honour was directing his attention to. It certainly is not a complete statement of the position, but what his Honour was wanting to point out is what then follows in paragraph 112 where he also noted that at the time there also existed in State jurisdictions a case stated procedure. That was the significance of his Honour's comment in paragraph 112, which is why perhaps the first sentence is somewhat abbreviated as a full statement of the position. His Honour was drawing that contrast and that is why, in our respectful submission, sections 72 and following stand as a substantive obstacle to what is now being contended for by the Director.

We would add this, if the Court pleases. Quite apart from what I have said about the peculiar nature of the State legislation in this case, our respectful submission is that in any event what is being raised here - that is the claim to be able to rely upon section 350 - even if we ignore section 72, is not an appeal arising out of the trial; it is an appeal arising either before or in the course of the trial. The whole thrust of section 68(2) was to identify appeals, as it were, from the concluded trial, not appeals arising in an interlocutory sense.

That, we respectfully contend, is also supported by the definition. If one is going to give effect and full effect to the definition in section 2, the same conclusion is to be arrived at, namely that what is being referred to in the definition and in section 68(2) is a challenge to the conclusion of the proceedings.

GAUDRON J: Would it be? Let us assume a challenge to the jurisdiction at the beginning.

MR WELLS: That, your Honour, with respect, is clearly right. It is expressly stated that jurisdiction is a matter that can be challenged. That is true, but of course matters of jurisdiction are idiosyncratic.

GAUDRON J: Interestingly, it says "decision". It is obviously intended to extend beyond judgments and final orders, is it not, because an "Appeal includes". That would seem to me to take it beyond the ordinary notion of "appeal" from final orders.

MR WELLS: In our respectful submission, the fact that it refers to "the . . . decision" confirms the construction we contend for.

GUMMOW J: You may be right or you may be wrong, but it looks like a special leave point at the moment.

MR WELLS: If your Honour pleases. On behalf of Gee, we have no other submissions that we would want to put at this stage.

GAUDRON J: Thank you, Mr Wells. Yes, Mr Tilmouth.

MR TILMOUTH: Your Honours, I adopt what Mr Wells has put. Can I make just a few brief points in addition or by way of supplementary submission. The answer to the issue posed by your Honour Justice Gummow relating to the amendment to section 68(2) following Seaegg is that the amendment omitted any reference to appeals by way of case stated. In my submission, that is quite important because it shows an intention to leave that area unaffected.

The significance of Seaegg is, apart from the matters pointed out by Mr Wells in his submissions, that the amendment not only plugged a hole or a hiatus that the Court had identified in relation to appeals by accused persons, but the High Court also enunciated fairly elaborately its view of sections 72 to 77. Your Honours, the Commonwealth Parliament not only chose to retain those provisions when it made the amendment, knowing the way they had been construed by the High Court, but they have presumably chosen to retain them ever since. Even though these additional procedures have been added throughout the States in the last 15 or so years, they are still retained and chosen, in our submission, to retain the old mechanism.

GUMMOW J: I understand what you are saying, but one of the problems with the Judiciary Act is that it has been patched and sewn from time to time but not thoroughly gone over from top to bottom.

MR TILMOUTH: Yes, your Honour, there is no doubt about that, as I think a recent Australian Law Reform Commission report or draft paper clearly demonstrated.

GUMMOW J: Exactly, yes.

MR TILMOUTH: That may be true, but nevertheless these reforms have been going on for a long time and the Commonwealth must have known about them but chose not to amend or repeal. The final point I wish to make, your Honours, is that whatever - of course, Parliament, if it did not like the reforms, could amend or, if it did like them, it could specifically amend to ensure they were picked up.

The final matter, your Honours, is section 2, the "appeals" definition. However wide it is read, of course it contains the very important rider, "unless the contrary intention appears". There is that contrary intention basically because of the submissions that I and Mr Wells have already put. If the Court pleases.

GAUDRON J: Thank you, Mr Tilmouth.

There will be a grant of special leave in this matter. We cannot indicate precisely in this respect but for the benefit of counsel, it may not be necessary to come to Canberra for this matter. It may be possible for it to be dealt with in Adelaide later in the year.

AT 10.12 AM THE MATTER WAS CONCLUDED