Haunga v The Director of Public Prosecutions for the Commonwealth of Australia M61/2001 [2002] HCATrans 444 (13 September 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M61 of 2001

B e t w e e n -

DARREN PATRICK HAUNGA

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

GAUDRON J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 SEPTEMBER 2002, AT 11.00 AM

Copyright in the High Court of Australia

MR G.J. THOMAS: If the Court pleases, I appear on behalf of the applicant. (instructed by Victoria Legal Aid)

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR M.P. CAHILL, on behalf of the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

GAUDRON J: Yes, Mr Thomas.

MR THOMAS: Your Honours, this application for special leave is addressed to ground 3, addressed to double jeopardy, and in simple terms it is submitted that this applicant was punished twice for the one act or actions by the Court of Appeal.

GAUDRON J: Now, one can well see why you say he was punished twice. I do not mean to indicate by that that I accept that proposition but I can see on what basis you do but how can you, in the circumstances of this case, advance that argument strictly by reference to the appeal and in isolation from the contempt, conviction and offence?

MR THOMAS: I do not, your Honour.

GAUDRON J: You do in a sense, do you not, because you conceded or somebody conceded in the Court of Appeal that the contempt sentence was a lawful sentence?

MR THOMAS: Yes.

GAUDRON J: That is a very big concession, is it not?

HAYNE J: Involving a number of steps about federal jurisdiction, application of the Judiciary Act 1914 , section 109 problems.

MR THOMAS: Can I just indicate where I do proceed past that point and say that the punishment has occurred twice because once - - -

GAUDRON J: But at what point, at what point? Can you isolate the one point?

MR THOMAS: Yes, I can, and it is at the point the Court of Appeal indicated that it was substituting a sentence of 2 years 9 months and attaching the 12 months sentence for contempt.

GAUDRON J: They may have had no power to do that.

MR THOMAS: But in doing it, your Honour - - -

GAUDRON J: It may be a question whether that is how the sentence operated, it not having been before the Court of Appeal, if it did not operate that way, there was nothing they could do about. Now, did you not really need to bring up the contempt conviction as well, or perhaps it should have been - seeing it was a DPP appeal, was it not?

MR THOMAS: It was, your Honour, it must be for dealing with the non-co-operation - - -

GAUDRON J: I mean, it may well have been the case that the DPP should have brought both of them up.

MR THOMAS: Can I just persist, your Honour, because I can see perhaps that there is a way around what looks to be an impasse to me at the moment, your Honour, but can I just proceed with it. What I am trying to submit here in terms of a double jeopardy is this: when the sentencing judge on the contempt imposed his sentence of 12 months and attached it to the reduced sentence of 2 years that was imposed originally, his Honour said - presumably, looked at all the issues that a sentencing judge should, that is, he has looked at the question cumulation, concurrency, totality, that is what you would expect. Can I just indicate there, your Honours, that when you attach a 12 month sentence to a 2 year sentence that was the reduced sentence on the bottom, if I can put it that way, that is a different question from attaching 12 months to a 2 years 9 month sentence and to do that, you have re-sentenced in a way that has denied the - - -

GAUDRON J: But, you see, the more difficult proposition is this, and this is not against you: the Court of Appeal, not having had the contempt sentence before it, had no power to vary it, in any event.

MR THOMAS: Yes.

GAUDRON J: But there is a more fundamental question, is there not, whether any sentence should have been imposed for contempt?

HAYNE J: Whether there was power; whether it was all eaten up by 21E; whether it was federal jurisdiction. These root and branch questions seem to lie beneath the generalised complaint that is made about double jeopardy.

MR THOMAS: Yes. For this application, though, your Honour, I am supporting it as best I can.

GAUDRON J: Yes, it seems to me that - I think you can accept that there is a problem about this which, prima facie at least, ought to be corrected, and it seems to me that the problem was one of the DPP's making.

HAYNE J: It is now, anyway, Mr Thomas.

GAUDRON J: I mean, unless, of course - well, I presume the DPP did not suggest to, I think there was the County Court Judge Smith, was it not?

MR THOMAS: Judge Smith, your Honour, yes.

GAUDRON J: That he ought not to sentence for contempt or that he ought not to sentence for any appreciable time, did he? I mean, it seems to me you have a double jeopardy point, whether or not the contempt sentence dates from 2 years and whatever it was or whether it dates from 2 years 9 months. Did you appeal in the contempt?

MR THOMAS: No, your Honour, no.

GAUDRON J: I know it has never been appealed, but is there any reason why an application could not be made to the Court of Appeal for leave to appeal out of time, both against conviction and sentence?

HAYNE J: He is still serving it. At least by my calculations, he is still serving the contempt.

MR THOMAS: Yes.

GAUDRON J: And not this sentence - - -

MR THOMAS: A new sentence.

HAYNE J: The federal sentence seems to have expired but the contempt sentence is what is now undergoing. That seems to be the way it works out, I may be wrong.

MR THOMAS: That seems to be so, your Honour. Your Honours, that application could be made. I mean, it is plain to say, I think, that with the indications that your Honours have given at this discussion, would likely to be influential in terms of a late lodgement of an appeal notice, I think. I can see, your Honours, that that impasse I was trying to get around is an impasse but with an alternative, if I can put it that way - - -

HAYNE J: Not an alternative. It seems to me, at the moment at least, without having heard from Mr Holdenson, that if there is a problem, it is a problem that is capable of addressing only with both sentences or the conviction and the appeal both in front of the court because if there is double jeopardy, that is inviting attention to whether and by what power punishment could be imposed for contempt. Now, to run one in isolation from the other seems to invite the sort of "fall between two stools" problem that I rather suspect you might have felt you were confronting.

MR THOMAS: That is certainly so, your Honour, yes.

GAUDRON J: And may mean that to confront the particular one you are confronting may mean no actual advantage to your client, even if you were right.

MR THOMAS: Your Honours, I can say I am wise to - - -

GAUDRON J: Perhaps we should hear from Mr Holdenson at this stage. Mr Holdenson, you see there is a problem in this case, do you?

MR HOLDENSON: No, in our submission, there is no problem in this case.

GAUDRON J: Let us ask this - - -

MR HOLDENSON: There might be now.

GAUDRON J: - - - in the exercise of what jurisdiction was the applicant's sentence for contempt?

MR HOLDENSON: It would seem that it was not in the exercise of a federal jurisdiction.

GAUDRON J: Why?

HAYNE J: Why not?

MR HOLDENSON: By reason of those authorities cited in at least the footnote which - - -

GAUDRON J: State decisions.

MR HOLDENSON: Yes.

MR HOLDENSON: No decision of this Court and I would have thought that the decisions of this Court with respect to the nature of federal jurisdiction being matters might well say it was federal jurisdiction. If the conviction was in a federal prosecution, it was a conviction in a federal matter which was - no, but the contempt conviction was a conviction within the prosecution, was it?

MR HOLDENSON: I am sorry, it was not part of the prosecution.

GAUDRON J: No, but was it within the prosecution?

HAYNE J: There is a real question about how extensive the matter is, is there not?

MR HOLDENSON: Yes, I understand that, but - - -

GAUDRON J: No, it was dealt with as a contempt in the face of the court?

MR HOLDENSON: That is correct.

GAUDRON J: There was no separate proceeding issued?

MR HOLDENSON: There would presumably have been a separate proceeding issued under Order 75 of the Country Court Rules, Order 75 or Order 77.

HAYNE J: Is that right? I simply do not know and do we know for a fact whether that occurred, Mr Holdenson, or is that an assumption?

MR HOLDENSON: It is the only way it could have occurred, albeit there may not have been documentation instituted, filed, served, et cetera, by the appropriate officer of the County Court. But that is the only way it could proceed either expressly or by some sort of implication.

GAUDRON J: Now, was the DPP there at the time?

MR HOLDENSON: Counsel was there, yes.

GAUDRON J: Representing the DPP?

MR HOLDENSON: Yes.

GAUDRON J: Did the DPP seek to have this man dealt with for contempt?

MR HOLDENSON: Not as I understand the transcript, but he certainly did not stand in the way of his Honour Judge Smith.

GAUDRON J: Did he put submissions on penalty?

MR HOLDENSON: I think there were some submissions on penalty.

GAUDRON J: By the DPP?

MR HOLDENSON: Yes.

GAUDRON J: All right, it seems to me you have to confront questions. First of all, what jurisdiction? Secondly, what was the nature of the offence, federal or State? Thirdly, if it was federal, whether there was room for such an offence in the face of the provisions which exist.

HAYNE J: That is, could there be a pick up under 79, 80 of the Judiciary Act or did the relevant provisions of the Crimes Act relevantly otherwise provide?

MR HOLDENSON: If your Honour could just assist me with the provisions of the Crimes Act to which your Honour refers.

HAYNE J: Section 21E. Did 21E perhaps relevantly deal with this kind of circumstance which otherwise would constitute a contempt? That is a question which needs to be tracked through. I am not saying which particular path you follow.

MR HOLDENSON: Perhaps I can assist with an answer to that question. What occurred in this case was this. This man was prosecuted and found guilty on his plea of guilty and punished by Judge Smith on 25 May for his refusal to be sworn and to give evidence before his Honour Judge Smith on 3 May. He was sentenced for that contempt in the face of that court. He was not sentenced and punished for what might well be another contempt, namely, refusing to comply with a sworn undertaking which he had given to his Honour Judge Keon-Cohen in June the year before and so what occurred in the Court of Appeal was that there was under section 21E - and I will take the Court to subsection (3) in a moment because there is an aspect of that which deals with the point raised by the Court - - -

GAUDRON J: Of course it does which eliminates discretion, which is why it seems to me that there is an argument that there is no room for a separate State contempt charge. If there is room for the exercise of a power to convict and punish for contempt, it must come in, and it seems to me arguable, as a matter of federal jurisdiction, in which event all sentencing provisions of the Crimes Act would apply and there also seems to me to be a problem about the Court of Appeal having said that the contempt sentence dates from a certain date when it was not before the court.

MR HOLDENSON: The Court of Appeal simply, pursuant to the power conferred upon it by 21E(3), removed a provisional benefit and that is all 21E(3) is about, the removal of a provisional benefit which had been granted to the applicant by his Honour Judge Keon-Cohen. It is not about imposition of penalty for contempt and so this man - - -

GAUDRON J: That may be right, but is that not an important question to be determined?

MR HOLDENSON: Well, if I can just go on for one moment and indicate why it is not - - -

HAYNE J: The waves keep coming, do they not, Mr Holdenson? It is such fun.

GAUDRON J: But that is an important question. I mean, you may well be right on that and if you are right on that, then perhaps the other issues fall away, but that is a big question, is it not?

MR HOLDENSON: If it were an important question, I would concede it, but I am endeavouring to show why it is not an important question in this case. If I can move more particularly on to the statute: 21E(3)(a) indicates that where there has been a complete or an entire refusal to co-operate, then, in circumstances where the word "must" is to be found within (3)(a), there is, therefore, necessarily expressed an ouster of any notions of double jeopardy. It would - - -

GAUDRON J: It may do that in two ways: It may do it by constituting a complete code as to what is to happen and, therefore, overruling if it is a truly State offence by operation of 109, any other State offence; or by excluding the picking up of the State offence by otherwise providing for the purposes of section 79 of the Judiciary Act.

MR HOLDENSON: By whatever mechanism, the legislature has expressed the ouster of principle in double jeopardy.

GAUDRON J: Yes, but if it has done it by excluding any other offence.

MR HOLDENSON: This is not about punishment for offences, it is about - - -

GAUDRON J: One knows that that is how you put it, but if it has done it by providing exhaustively and exclusively as to what is to happen in these circumstances, then what is brought into question is the contempt conviction.

MR HOLDENSON: The person who is the subject of the contempt conviction has never appealed against it. I understand the operation of the Constitution in section 109, I understand that that can - - -

GAUDRON J: That is one aspect of what we are putting to you, Mr Holdenson, one aspect.

MR HOLDENSON: Can I move to the next aspect.

GAUDRON J: That is Chapter III.

MR HOLDENSON: The next aspect is this, it does not arise in this case, an exercise in futility because, in any event, the sentence that was imposed by his Honour Judge Smith was expressly taken into account by the court below in determining how to - - -

GAUDRON J: Seemingly varied; and seemingly varied.

MR HOLDENSON: I am sorry?

GAUDRON J: Seemingly, the sentence was varied.

HAYNE J: They altered its starting date, Mr Holdenson.

GAUDRON J: When the sentence was not before it.

MR HOLDENSON: They made an order under 21E(3)(b) and thereby fixed - to use a neutral expression - the sentence, the new sentence, the unreduced sentence for the offence under the Customs Act. The effect of that was, in circumstances where his Honour Judge Smith had made an order under 16(4) of the Victorian Sentencing Act, moved the commencement date of the contempt sentence - - -

GAUDRON J: It seems to me, if you wanted that commencement date moved, which is why I suggested earlier, you may be the root of the problem. If you wanted that commencement date moved, you should have appealed that contempt sentence as well.

MR HOLDENSON: We were not the one that was complaining about the contempt sentence. We were complaining about failure to act in accordance with the undertaking and, therefore, complaining about the inadequacy of the sentence as it became and, in those circumstances, the Court of Appeal - - -

GAUDRON J: Did the Court of Appeal move the commencement date of the contempt sentence at its own initiative and without requests from you?

MR HOLDENSON: The Court of Appeal at page - first of all it has to have regard to application book page 48 and that was where his Honour Judge Smith made the order, namely 12 months imprisonment for the contempt, and then by having noted the situation in respect of the Commonwealth sentence, having been - and your Honours will see reference to Judge Keon-Cohen. He speaks of a non-parole period but nothing turns on that, it was the recognisance release order of 24 months, having been well and truly apprised of the fact that there was the subject of consideration, a section 21E appeal, made that order and then the Court of Appeal simply worked around it.

GAUDRON J: It changed it.

MR HOLDENSON: I say worked around it by way of submission.

GAUDRON J: Now, we are talking about the liberty of the citizen, are we not?

MR HOLDENSON: Absolutely, and it was - - -

GAUDRON J: There is a question, is there not, as to whether - there must be at least this question: whether it can be said that the Court of Appeal validly altered the starting date of that sentence. That must be a question. It seems to me that that is a question that is going to have to be determined somewhere. If there was no appeal before the Court of Appeal with respect to the contempt sentence, I, for my part, do not see how it had any power to alter its starting date.

MR HOLDENSON: I have made the submission in respect of that. It never altered the starting date. It simply worked around it and made it - - -

GAUDRON J: What do you mean "worked around it"?

HAYNE J: Go to page 56a of the application book, Mr Holdenson, and tell me - - -

MR HOLDENSON: Page 56?

HAYNE J: Page 86a, sorry - and tell me what is meant by the words in the second-last paragraph of the order directing release on recognisance:

after serving 2 years and 9 months of the sentence imposed this day followed by the sentence imposed on him by His Honour Judge Smith -

What do those last words mean, other than that he is to serve 12 months after the 2/9 is over?

MR HOLDENSON: I am not certain that that constitutes the making of the order or constitutes the order of the Court of Appeal, that is, the court below.

HAYNE J: We have no other form of order, do we?

MR HOLDENSON: What we do have, and I will just have to - if your Honour would just give me a moment because I was anxious to clarify why it was that we had a judgment in the application book that had some of the numbers written over, I have obtained the transcript and, yes, there was an order - if I can just read it out - it was order No 5 of the transcript. This is not in the application book.

GAUDRON J: Has that order been taken out?

MR HOLDENSON: The answer to that, there is no notion of taking out order in the - - -

GAUDRON J: There is, I am sorry to tell you.

HAYNE J: If this is not it, what is it?

GAUDRON J: I am sorry, Mr Holdenson, we have confronted this problem on a previous occasion in another State where orders were routinely not taken out which led to the consequence that there were multiple appeals, at least in one matter. Now, if the order has not been taken out - - -

MR HOLDENSON: No, can I just - - -

GAUDRON J: But, no, if the order has not been taken out, there is nothing to appeal.

MR HOLDENSON: Can I say this, your Honour: in the rules, as I understand them, the Criminal Appeal and Procedures Rules, Chapter 6 of the Supreme Court Rules, there is no notion of the taking out of orders. As good as it gets is the notification of a result, this document here.

HAYNE J: Page 86a is the formal record of the court.

MR HOLDENSON: Page 86a. Yes, and - - -

GAUDRON J: So that is an order?

MR HOLDENSON: If that constitutes what your Honour referred to, then it is the order. But can I indicate this, the second last paragraph would constitute the making of the order because it is referrable to:

imposed this day followed by the sentence imposed on him by His Honour Judge Smith on 25 May, 2000.

That is what your Honour Justice Hayne read out to me, that is correct.

HAYNE J: Yes.

MR HOLDENSON: That is correct. So that is the order and if that constitutes the entry or the perfection of it, the notification of the result, and it does, then that is the end of it. Yes, they did make that.

Now, just to respond to the question raised by your Honour Justice Hayne, if that is invalid, it just gets severed out, nothing changes. You can cross out those - - -

GAUDRON J: By whom?

MR HOLDENSON: I am sorry?

HAYNE J: Who severs it?

MR HOLDENSON: This Court on appeal if special leave is granted or if it goes back to the court below and the two matters are before the court. The question is, what is the source of power to that? If the answer to that by a court is, no, that gets severed out, it makes no difference. That is why I said to your Honours they worked around the order made by Judge Smith and if that constitutes - - -

HAYNE J: What do you mean, Mr Holdenson, makes no difference? Sorry, what do you mean?

MR HOLDENSON: What directs the cumulation in this case, that is, what ensures that there is cumulation of the order imposed by Judge Smith was the order imposed by Judge Smith which is to be found, in the transcript anyway, at page 48. That is the cumulation order. That means there that the sentence for contempt in the face of the court is cumulative upon the sentence imposed in respect of a Commonwealth offence contrary to the Customs Act. The sentence for the offence contrary to the Customs Act changed when the Court of Appeal substituted a new sentence for that reduced sentence. Hence, the effect of the order of his Honour Judge Smith in directing that the contempt sentence be cumulative was also therefore cumulative still after the Court of Appeal had exercised their jurisdiction under section 21E(3).

Now, if I can just go back for a moment. Your Honour Justice Gaudron asked me a very specific question and I answered it wrongly, namely, in respect of the proceeding before his Honour Judge Smith, did the Crown make any submissions on penalty? The answer is, no. The answer is not, yes, it is, no, they made no submissions and, of course, I already said it, they did not bring the proceeding. That is, the Commonwealth DPP was not the bringer of that proceeding for contempt before his Honour Judge Smith.

Now, it is to be assumed from the way in which our friend opened the matter that - - -

GAUDRON J: Could you tell me this: the charge of contempt, though, arose out of proceedings for a federal offence?

MR HOLDENSON: Yes. It was the trial and - - -

GAUDRON J: It was a trial of a co-offender under a law of the Commonwealth.

MR HOLDENSON: Yes.

GAUDRON J: So at all relevant times, Judge Smith was exercising federal jurisdiction, unless you can say he reverted back to his other status in relation to the contempt.

MR HOLDENSON: That is correct.

GAUDRON J: The contempt was of a judge exercising federal jurisdiction.

MR HOLDENSON: Yes, and in that regard - - -

GAUDRON J: Does the Commonwealth Crimes Act have anything to say about that?

MR HOLDENSON: There are Commonwealth Crimes Act offences in respect of matters in the courts - probably find them around section 43 or thereabouts. Section 40 is a place where one finds offences relevant to the exercise of federal jurisdiction; whether or not there is one there that catches this case. In fact, it would seem that there is not as I move from section 31 through to - no, I do not see one between sections 31 and 49. There are offences about giving false testimony, fabricating evidence, preventing witnesses from giving evidence, corrupting witnesses, but not where the witness corrupts himself not to give evidence or determines himself not to give evidence, thereby constituting a contempt.

We, of course, rely upon each and all of the authorities in so far as this is concerned, each and all of them having been set out in footnote 6 to the judgment at page 81 of the application book; although, as your Honour Justice Gaudron indicated, not one of those decisions is a decision of the High Court, though each of those cases being concerned with the nature of the jurisdiction exercised as to contempt where the contempt has arisen in the context of a court exercising federal jurisdiction. There are only about nine of them and what we say is this case not only is consistent with them but, more particularly, as to the facts, is entirely in accordance with the approach of the Western Australian Court of Criminal Appeal in Parsons - that was one of the authorities cited - where the offender failed entirely to act in accordance with the undertaking, sentenced to 21/2 years imprisonment for contempt, cumulative upon the sentence then undergoing. The Western Australian Court of Criminal Appeal on appeal by the Director under section 21E, then re-sentenced under 21E(3)(a) and rejected, and we say by way of submission, correctly, the submission which was in some way referable to double jeopardy, namely, "Do something with this sentence on the 21E appeal referable to what occurred on the contempt sentence, making it cumulative." The court rejected that submission, but in this case - - -

GAUDRON J: Did it alter the starting date of the contempt sentence?

MR HOLDENSON: It must have. They must have because the contempt sentence was cumulative upon, and so - - -

GAUDRON J: The original, cumulative upon the original sentence?

MR HOLDENSON: Yes, in the judgment. So by changing that which was underneath the contempt sentence, by enlarging that, by definition, enlarging or extending or changing the commencement time of the contempt sentence. Would your Honours be assisted if I took your Honours to the relevant passage in passing?

GAUDRON J: No, I do not think so, thank you.

MR HOLDENSON: Save as to that - - -

GAUDRON J: It seems to me to raise exactly the same question as the present case does.

MR HOLDENSON: It might, so can we just - the red light is on - can I just say this in conclusion. Nothing is to be gained, we say, by way of submission. The concluding submission is this: nothing is to be gained by a grant of special leave in circumstances where the penalty imposed by his Honour Judge Smith was a factor taken into account by the court below in determining the magnitude of the sentence to be substituted for the reduced sentence which had been imposed by his Honour Judge Keon-Cohen in 1999. If the Court pleases.

GAUDRON J: Thank you. Mr Thomas, I do not know that we need to hear you in reply. But I will reserve your right to reply to what I am about to say.

MR THOMAS: If your Honour pleases.

GAUDRON J: In this matter we are minded to grant special leave. However, it is as well that we record some matters that were mentioned to counsel in the course of argument.

The appeal to the Court of Appeal proceeded on the concession by the applicant that the sentence imposed on him by Judge Smith for contempt of court was a lawful sentence. It seems to us that implicit in some of the submissions which the applicant would seek to advance on an appeal from the orders made by the Court of Appeal is a challenge to the correctness of that concession.

In particular, the arguments about double jeopardy which the applicant seeks to advance appear to us to require consideration of the possible intersection between the applicable provisions of the Crimes Act (Cth) and the power to punish for contempt. That requires identification of the source of that power to punish for contempt. In particular, was Judge Smith exercising federal jurisdiction and acting pursuant to sections 79 and 80 of the Judiciary Act? If that is so, do the applicable provisions of the Crimes Act constitute another provision for the purposes of the Judiciary Act? If State law was being applied, is there some inconsistency between that law and the applicable provisions of the Crimes Act?

Not all of these matters may be agitated if there is no challenge to the applicant's conviction for contempt.

All this being so, the applicant's advisers will, no doubt, give attention to whether an application can or should be made to the Court of Appeal of Victoria for leave to appeal out of time against the conviction and/or sentence for contempt and the possibility of subsequently making application to this Court for special leave if proceedings in the Court of Appeal were not to achieve the result which the applicant seeks.

Lest there be any doubt about it, we should make quite plain that if the Full Court of this Court were to conclude that the issues which the applicant seeks to agitate on the appeal in the present matter could not be properly argued in the absence of a challenge to the validity of the conviction for contempt, if that challenge were not mounted and ready for argument in conjunction with the present matter, consideration would have to be given to revoking the special leave that is granted today.

Now, do you wish to say anything further about that matter?

MR THOMAS: No, your Honour.

GAUDRON J: With those caveats, we simply make an order that special leave is granted.

MR THOMAS: If your Honours please.

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

AT 11.36 AM THE MATTER WAS CONCLUDED