Fittock v The Queen D7/2001 [2002] HCATrans 218 (3 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D7 of 2001

B e t w e e n -

PETER ANDREW FITTOCK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 MAY 2002, AT 1.29 PM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court pleases, I appear with my learned friend, MR S.H. MacFARLANE, for the applicant. (instructed by McKinley Law)

MR R.S.L. WILD, QC: If the Court pleases, I appear with my learned friend, MS N. ROGERS, for the respondent. (instructed by the Director of Public Prosecutions (Northern Territory))

GAUDRON J: Yes, thank you, Mr Wendler.

MR WENDLER: Your Honours, before I open this application can I confirm that there has been full compliance with the provisions of section 78B of the Judiciary Act.

GAUDRON J: Yes, I saw those notices.

MR WENDLER: Your Honours, for convenience I have divided this application up into two parts. The first part I will describe as that part which has a constitutional dimension and that is broken up into two other parts, both of which concern the constitutionality of the applicant's conviction and the constitutionality of the applicant's sentence. The second part to this application concerns non-constitutional issues and is under the broad heading that there has been a demonstrable miscarriage of justice justifying in the circumstances a grant of special leave to appeal. If I could then commence with what might be described as the first aspect of the issue involving the Commonwealth of Australia Constitution Act.

The applicant was tried for two counts upon indictment, one for murder and one for attempted murder, and his trial took place in November 1999 in the Supreme Court of the Northern Territory sitting in Alice Springs. He was convicted of both counts. It was a short trial, relatively short, some seven or eight days.

In the circumstances of the applicant's trial the jury that was empanelled was empanelled pursuant to a Territory law. There were 14 jurors empanelled, one of whom was discharged under the provisions of the Juries Act before the trial commenced. The other was discharged pursuant to the provisions of 37A, I think, of the Juries Act.

KIRBY J: Are these additional jurors empanelled in the sense that they mix with the other jurors? They are not kept separate?

MR WENDLER: Yes. The legal situation is set out in section 37A of the Juries Act, which is at tab 8 in the applicant's authorities booklet. Section 37A sets out the situation concerning, as it were, the legal rights of a reserve juror. Section 37A(2) - I will not read it out, but there are a number of matters there which are relevant, of course, to a reserve juror.

Now, what the applicant seeks to say about all this are two things: first, "That my conviction, or convictions, were unconstitutional because I didn't have in the circumstances a trial upon indictment with the protection that section 80 of the Constitution guarantees every other citizen in this country when" - - -

KIRBY J: He says that now, but he did not say it at the trial.

MR WENDLER: Well, that would not necessarily be fatal, in my respectful submission, if the characteristic which he claims to have been denied is an inviolable characteristic mandated in section 80 of the Constitution, and that characteristic is the issue of unanimity and the issue that all jurors empanelled - that is, the word "jury" in section 80 means all jurors empanelled in the trial of any particular accused. All of this is all very interesting but, of course, the applicant must confront R v Bernasconi and argue the correctness in law of that and seek leave to challenge that judgment in this Court.

In my respectful submission - and this is the first aspect of the specialness of the application - is this, that the applicant wishes to make a submission that section 80 is applicable to offences created by an exercise and a power given to the Parliament of the Commonwealth by section 122 of the Constitution. I am sorry, your Honour.

GAUDRON J: Yes. Thank you, Mr Wendler.

MR WENDLER: The applicant wishes to challenge the correctness of Bernasconi and in so challenging the correctness of that decision - - -

KIRBY J: Is Bernasconi the case from the Territory of Papua New Guinea?

MR WENDLER: Yes. I mean, it is an astonishing thing that today, 3 May 2002 - - -

GAUDRON J: I do not think you should waste your time about how astonishing Bernasconi is because - - -

MR WENDLER: All I was going - - -

GAUDRON J: Let me say this. You realise you have to get leave. So far as the constitutional issues are concerned - - -

KIRBY J: Relating to the conviction.

MR WENDLER: Yes.

GAUDRON J: - - - the only really sensible course that this Bench could take would be to refer your application for special leave on those issues to a Full Bench - - -

MR WENDLER: Yes, I would not stand in the way of that.

GAUDRON J: - - - and at that point you can tell them how amazing the decision is. But what you have to do at this point is persuade us really that, assuming you got leave to reopen Bernasconi, that the arguments you make would bring you within the protection of section 80 or found a basis for a breach of section 80.

MR WENDLER: Yes. All I was going to say, your Honours, is that the current jurisprudence concerning section 80, or rather the legal relationship between Chapter III of the Constitution and the territories power is such that trials in Territory courts are not protected or afforded any of the inviolable guarantees that are suggested to exist in section 80 of the Constitution.

Bernasconi has received critical, as it were, assessment in a number of cases in this Court. It was some 40 years ago now, I think, in Spratt v Hermes where there was a critical assessment and observations made of the legal effect of Bernasconi v The King. Justice McHugh in Gould v Brown described Bernasconi as a "heresy", I think was the expression. Justice Murphy, Hsing v Rankin held that section 80 applied to the territories. In other words, there is a further issue concerning the legal relationship between Chapter III of the Constitution, in particular section 80, and the territories power.

KIRBY J: Can I ask you this: the Constitution draws a distinction between the Commonwealth and a Territory. Those words are used in it.

MR WENDLER: Yes.

KIRBY J: Section 80 talks of a:

trial on indictment of any offence against any law of the Commonwealth -

Now, in a document which draws that distinction, can it be said that that is therefore referring to a federal law as distinct from a law of a Territory?

MR WENDLER: Once again, this is one of the issues we seek to argue. Why should there be this fragmentation and this dichotomy between what is a federal law and what a law of the Commonwealth is. A law of the Commonwealth is any law passed pursuant to any power given by the Constitution to the Commonwealth. It says "any law of the Commonwealth". It does not just say "law of the Commonwealth". It says "any law of the Commonwealth". It is astonishing that, for the purpose of section 109 of the Constitution, for instance, a 122 law is regarded as a law of the Commonwealth, but a 122 law on the Bernasconi formulation is not regarded as a law of the Commonwealth.

The problem with all of this really stems back to the definition of judicial power in section 71 of the Constitution and the theory that judicial power is only concerned with laws made pursuant to section 51 and 52 of the Constitution.

KIRBY J: I suppose you can say, whether your argument is a good or bad argument, it is an important argument because it concerns all of the trials on indictment in the Territories, and specifically the Northern Territory, and that the issue should be laid at rest quickly because the sooner it is done, the less disruptive would any decision to the contrary be for the running of trials in the Territories.

MR WENDLER: Yes, quite, and it will return. It is an issue that, in my respectful submission, is due for final resolution, so to speak. So it is my respectful submission that having regard also to the decision, especially in Ex parte Eastman v Governor of Goulburn Prison, it cannot be conclusively said that Chapter III, as it were, insulated entirely - or rather section 122 of the Constitution is insulated entirely from Chapter III of the Constitution. There are disparate statements concerning the legal effect of Chapter III of the Constitution and the territories power. There has been no, as it were, head-on attempt to resolve this problem as to whether or not section 80 applies to trials on indictment in Territory courts.

GAUDRON J: Yes, but let us assume for the moment that it does. What do you say about section 37A in relation to section 80? That is really, it seems to me, the more critical point for you.

MR WENDLER: Yes. The relationship between that section and the section 80 issue that I am - - -

GAUDRON J: How does what you wish to put square with what was said in Brownlee?

MR WENDLER: The first thing we need to identify in relation to Brownlee is that the word "jury" in section 80 and the number of jurors that go to make up a constitutionally valid federal trial - the number is not important. It is not a mandated aspect of section 80 so long as the number does not fall to a particular minimum. Brownlee must be authority for the proposition that there is no magic in 12, as I think was an expression that was used in that case by this Court and, indeed, by the New South Wales Court of Criminal Appeal.

KIRBY J: I think it was used by the District Court judge.

MR WENDLER: Yes, but it was also repeated I think by Justice Grove when he heard it in the Court of Criminal Appeal. So the number is not important. In other words, the jurors that are empanelled, for the purpose of section 80, are the jurors that should proceed to verdict. Whether it is 12, 13, 15, 20 - in Roman times you could have a jury of beyond 100 - the maximum number is not important. It is the minimum number that may assume constitutional importance - - -

KIRBY J: And all this is against you.

MR WENDLER: I am sorry?

KIRBY J: All of this argument seems to be against you, because your jury never fell below a minimum.

MR WENDLER: No, but it had what might be described as a contingent personality, and in Cheatle this Court identified what might be described as inviolable or mandated features in relation to trial by jury in relation to Commonwealth offences. In other words, there are certain mandated features in section 80 which are inviolable and can never be, as it were, eradicated or undermined by the Parliament. One of those features, in my respectful submission, concerns the right of all jurors who are empanelled to proceed if they partake of the trial, which this reserve juror did, to verdict.

KIRBY J: Your argument has to be you are a either a juror for the Constitution or you are not, and if you are not you have no business being a stranger in the jury room.

MR WENDLER: Yes, that is right. Yes, that is it. In my respectful submission, that will depend, of course, on an examination of section 80, and the words in section 80, which are as follows:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury -

and a jury, of course, is the jury that was empanelled in the circumstances of this applicant's trial.

KIRBY J: Mr Wendler, you are spending a lot of time on this first point, and it is possibly an important point, but one might say that the thought that was behind Brownlee was that trials are now lasting much longer. You yourself said this was a short trial of seven days. So that is an indication of what is a short trial. That in those circumstances you need to make allowance. In Brownlee it was dispersal of the jury. In this case it was the falling below the requisite number, and that this is simply a statutory way of ensuring that and that, therefore, it falls within the principle in Brownlee.

MR WENDLER: Brownlee, of course, also was the issue concerning the requisite number and whether 12 was mandated as being the minimum number, as it were, for a constitutional verdict in federal trials. But your Honour Justice Kirby has encapsulated the submission that the applicant seeks to make in relation to section 80. Can I move to the next aspect of the argument?

KIRBY J: It might be wise.

MR WENDLER: Yes. The next aspect comes around this way. Can I invite your Honours to tab 9 of the authorities. Reproduced at tab 9 is that part of the Criminal Code of the Northern Territory which sets out the punishment for murder. It reads:

Any person who commits the crime of murder is liable to imprisonment for life which cannot be mitigated or varied under this Code or any other law in force in the Territory.

Now, that statutory language, as a matter of history, changed in July 1996. The words were added when that section was amended, and those words were "under this Code or any other law in force in the Territory". Now, the reason those words were amended was because at that time the Sentencing Act came into operation in the Northern Territory. Just so your Honours fully appreciate the point, can I just invite your Honours to some copies of the Northern Territory Sentencing Act.

KIRBY J: What is your point, because we have not got much more time?

MR WENDLER: I am coming directly to it, but your Honours I think should - - -

KIRBY J: Is it that this was part of the mandatory sentencing regime of the Sentencing Act of that time?

MR WENDLER: Yes, to the extent that when one goes to section 53 of the Sentencing Act, section 53(1) reads:

Subject to this section and sections 54, 55 and 55A, where a court sentences an offender to be imprisoned -

(a) for life; or

. . .

it shall, as part of the sentence, fix a period during which the offender is not eligible to be released on parole -

and so on and so forth. In other words, what section 164 does is shut out the operation of the Sentencing Act and in short does not permit the trial judge imposing what might be described as a non-parole period and a head sentence.

Now, the submission that the applicant wishes to make in relation to the regime of sentencing, in particular, for murder, is this. We know in section 73 of the Constitution that it contains the category or catalogue of courts which have a constitutional right of appeal to this Court. That is mandated by the Constitution. It can never be abolished, unless the people of this country decide to change that section. Territory courts are not part of section 73 of the Constitution. They are not one of the mandated courts which have a constitutional right of appeal. Therefore - - -

KIRBY J: That is the majority view in the Court.

MR WENDLER: Yes. Therefore, there exists a statutory right of appeal, by virtue of a section 122 law, to this Court from a Territory court. This Court established in Kable the situation that those courts which have a statutory right of appeal to this Court, and a constitutionally entrenched statutory right of appeal, cannot have invested in them functions which are incompatible with the exercise of Commonwealth judicial power. So you have this restriction on State power, but you do not necessarily have it on Territory or territorial power. Why should a court which has a statutory right of appeal - - -

GAUDRON J: Well, the question is not so much whether there is a limitation or not, that you need to address. It is whether a mandatory life sentence for murder infringes the principle, if it does apply.

MR WENDLER: Yes. I am getting to that - - -

GAUDRON J: Well, your time has run out, I am sorry, Mr Wendler.

MR WENDLER: I am sorry, your Honours - - -

GAUDRON J: No, you were warned earlier. Right at the beginning, I said, "Don't worry about telling us the difficulties of Bernasconi, tell us this." But you did not. I am sorry.

KIRBY J: Well, we have had your written submissions and we have read those, so that we know what the other arguments are.

MR WENDLER: Will your Honours grant me leave to address the non-constitutional points immediately?

GAUDRON J: You have had your 20 minutes. You elected - three minutes, but you have had your 20 minutes and we have read the papers and you elected to spend your time on what I would have thought was inessential in terms of this application.

MR WENDLER: Yes, all right. If the Court please, I apologise. In relation to - and, of course, this application is important to the applicant. Your Honours, in relation to the non-constitutional points, they can be summarised very quickly in this way. There has been a demonstrable miscarriage of justice by reason of the Crown splitting its case on the issue of criminal responsibility. It is true that the trial judge took away from the jury, or instructed the jury that the issue of transferred malice - - -

GAUDRON J: Well, it is not even true that the Crown split its case. It adverted to the possibility that the trial judge might instruct them that they could find intention on a particular basis.

MR WENDLER: Quite. There were two levels - - -

GAUDRON J: And then the trial judge said to the jury, "Don't worry about it. That is not the prosecution case. You need not worry."

MR WENDLER: In short, there were two scenarios concerning criminal responsibility, the alleged criminal responsibility of the applicant. The defect in that situation that occurred in the trial was, in effect, when the judge reminded the jury that the issue of transferred malice was not available to them in order to assess criminal responsibility, it may have been taken by the jury that she was taking the defence case away from the jury, because the transferred malice aspect of it relied on Fittock's version, that is, the applicant's version, of what occurred. So that is the important point in relation to the first ground concerning a demonstrable miscarriage of justice.

The last matter concerns the inadequacy, in my respectful submission, of the trial judge's directions and special instructions to the jury as to how they should handle the evidence of the witness Jordison. Two persons had direct experience of what occurred on the early morning of that occasion. One of them was a person, Jordison. He was a very important player in the Crown case - he was the Crown case. Her Honour was required in the circumstances to give directions tantamount to a full accomplice warning and, in fact, tell the jury that it would be dangerous to convict on the uncorroborated evidence of Jordison, because he was an admitted perjurer, and explain to the jury why it was that his evidence was unreliable. None of those things, in my respectful submission, occurred in the terms of the instructions that she gave the jury. If the Court pleases.

GAUDRON J: Yes, thank you. Mr Wild.

MR WILD: Yes, your Honour.

GAUDRON J: If you would turn to application book page 144 and following. Really, it is application book page 145.

MR WILD: Yes, I have that, your Honour.

GAUDRON J: Yes. The Court would be assisted by hearing you upon the draft grounds that are set out at page 145, but need not trouble you on those which are set out at page 146, that is, the mandatory sentencing or the miscarriage of justice grounds. But in addressing the Court, would you bear in mind what we have said earlier, that the proper course would simply be to refer the application for special leave so far as it concerns section 80 to a Full Bench, rather than grant special leave.

MR WILD: Yes, your Honour. It is the respondent's submission that the constitutional arguments that have been made in this case, and the attack on Bernasconi, lead nowhere. The proposition is put by my learned friend that murder in the Northern Territory is a Commonwealth offence. We do not concede that that is so.

KIRBY J: No, he says, an offence against the law of the Commonwealth, and that that picks up the Territory self-government law and the laws that are made under it and that, therefore, it is classified as a law of the Commonwealth, on the principle, I assume, that you do not read down section 80 but give it its full effect.

MR WILD: Thank you, your Honour. Nevertheless, once we get to that stage, what is the result? And the result is, there is an investigation of the reserve juror provisions in the Northern Territory, because it is that which this application seeks to attack. It is that question which needs to be resolved in the applicant's favour for him to have a successful conclusion to his application and appeal. So the matter that the Court, with respect, should be convinced of at this point is that there is some real argument that justifies an investigation by it of the reserve juror powers in section 37A.

It is the Crown's submission that there is nothing in that argument and, in particular, because it seems to rely upon a contamination argument - the intermingling argument, as your Honour Justice Kirby put it - in relation to the thirteenth and/or fourteenth jurors while they are with the panel. The effect of the decision in Brownlee, which only, of course, touches on the reserve juror question, is that the risk of contamination which may take place by a jury being allowed to go home while it is deliberating is one which is acceptable, if proper directions are given in respect of it by the court - and that, apparently, is what happened in Brownlee.

In this particular case, of course, the jury were allowed to go home during the seven or eight days of the trial, from the point at which the jury was sent out to consider its verdict, as the Court knows, they were restricted to the 12 jurors that were left. My learned friend's argument leads inevitably to a result whereby any reserve juror provisions would be effectively struck down, unless the reserve juror provision was such that that reserve juror never went into the jury room. In other words, you appoint 13 or 14 jurors at the commencement of the trial, empanel them, but one or two of them do not ever go into the jury room, at all. That would be, with respect, a very artificial situation. The jury is - - -

KIRBY J: You are arguing now in terms of what is reasonable, and Cheatle was not reasonable. I mean, you cannot dispute that as at 1900, there would have been no idea of a reserve juror and therefore you have to say, "Well, consistent with the developments, including Cheatle, there are some things that are permitted to change, such as women jurors, and property and so on, but some things, like unanimity, that are not. Which side does this fall into?" At least, one can see that there is an argument, a serious argument, that "jury" means a jury of jurors, and not a jury of jurors with a stranger or strangers. That is the issue that we would have to resolve.

MR WILD: Yes, your Honour. Your Honour, with the greatest of respect, I cannot concede that it is a serious argument in terms of the history which has developed in Australia over the last 20 or 30 or 40 years, and bearing in mind - I think your Honour referred to it - the American situation, where they have had reserve jurors back in the 1920s.

KIRBY J: Well, you know my view. I expressed it in Brownlee. I think this is a case of waiver, but the Court, in Brown has said that it cannot be waiver, and therefore we have to look at whether or not this is a jury within the terms of the Constitution. It is quite a short point. It is not without its interest. Constitutional cases are always interesting. It looks as though you have wandered into an interesting case, or perhaps the Solicitor-General will be there to help us, as well.

MR WILD: Yes, he is sitting behind me.

KIRBY J: Yes, we can see him.

MR WILD: Well, your Honour, if the Court becomes interested in the point, there is little I can do to dissuade that interest, except to say this, that this is a - - -

KIRBY J: Not now, but maybe later.

MR WILD: Yes, indeed. It is a capital case, your Honour, and there are consequences for both the Crown and the applicant, of course, and I understand the way that could be argued. As I understand the way in which your Honour Justice Gaudron addressed me at the commencement, it is only this one point that I am asked to address.

GAUDRON J: Yes.

MR WILD: Am I right in that?

GAUDRON J: And on the basis that there would not be an outright grant of leave, just a reference of the application to the Court, so that questions as to the reopening of Bernasconi, et cetera, would be preliminary questions to be dealt with before the Full Bench.

MR WILD: Yes, your Honour. Your Honour does not require me to address the mandatory sentencing aspect of the - - -

KIRBY J: You seem to be very keen to get into that issue.

GAUDRON J: No, we do not.

MR WILD: Well, your Honours, there are good reasons why you should and you should not. It may be by the time this matter is resolved we can report some progress in that area, but it will not assist us today.

KIRBY J: The general issue of mandatory sentencing is not presented by this case. This is a case, really, in the area of life imprisonment, which has its own special history and traditions and so on and therefore the general question is not before the Court, at least, as I view this application.

MR WILD: Yes. Well, the Crown position is as set out in our written argument, your Honour, that this application should not be allowed to deal with that question. It does not arise - - -

GAUDRON J: Well, you have not been asked to address it, anyway. You have not been asked by - - -

MR WILD: You do not ask me?

GAUDRON J: Yes.

MR WILD: You do ask me?

GAUDRON J: No, you have not been asked to address it.

MR WILD: No. Thank you, your Honour.

GAUDRON J: Yes. Thank you.

MR WILD: And I understand from what has been said that you do not require me - I am sorry. The feedback is a little bit average here today. You do not expect me to deal with the other grounds that are raised in the application?

GAUDRON J: No.

MR WILD: Thank you. Well, your Honours, there is little else I can say. As I say, if the Court is interested in the question of the reserve jurors in terms of Bernasconi and reopening and wants to send it off to the Full Bench, well, we will have to abide that, with respect.

GAUDRON J: Yes. Thank you, Mr Wild.

MR WENDLER: No, nothing to say, your Honours.

GAUDRON J: No. Thank you. Yes, Mr Wendler, perhaps it would be of assistance if you had the application book open so that you can check that it adequately reflects what you wish to do.

KIRBY J: These grounds are pretty imperfect, saying that, "The applicant will make a submission" or make a further - they are not proper grounds.

MR WENDLER: Yes.

GAUDRON J: Yes. So perhaps if I could read what I have noted down in the course of argument. What is proposed is that so far as concerns draft grounds of appeal 2.3 and 2.4 at application book 145, the application for special leave will be referred to a Full Bench of the Court. That, I think, enables you to raise, I just ask you, all the jury questions?

MR WENDLER: Yes.

GAUDRON J: Yes. Well, then, so far as the draft grounds of appeal 2.5, 2.6, 2.7 and 2.8 are concerned, the application for special leave is refused. In our view, none of the matters which form the basis of draft grounds 2.6, 2.7 or 2.8 occasioned any miscarriage of justice, and so far as concerns draft ground 2.5, that proposed ground of appeal does not, in our view, enjoy sufficient prospects of success to justify the grant of special leave.

I have not made reference to 2.1 and 2.2 because they do not seem to be grounds of appeal as such.

MR WENDLER: Yes, your Honour, I accept that.

GAUDRON J: But the reference is restricted then to draft grounds of appeal 2.3 and 2.4.

MR WENDLER: Yes, the section 80 point.

GAUDRON J: Yes.

MR WENDLER: Yes, thank you.

KIRBY J: You might have a look, Mr Wendler, at the form of 2.3. 2.4 seems to be in proper form, but 2.3 starts, "The Applicant will make a further submission". Now, that is not a proper form of a ground.

MR WENDLER: It would have to be expressed in seeking leave to reopen Bernasconi - - -

GAUDRON J: You might give thought to the way in which it is expressed. I presume, Mr Wild, that you will have no objection if Mr Wendler seeks to amend the draft grounds of appeal to raise the issues properly?

MR WILD: There is no objection.

GAUDRON J: Yes, thank you. Well, you may wish to amend the grounds of appeal, in due course, Mr Wendler.

MR WENDLER: Yes.

GAUDRON J: The Court will now adjourn briefly to reconstitute.

AT 2.06 PM THE MATTER WAS CONCLUDED