Theophanous v The Queen [2004] HCATrans 208 (18 June 2004)

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Theophanous v The Queen [2004] HCATrans 208 (18 June 2004)

Last Updated: 30 June 2004

[2004] HCATrans 208

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M220 of 2003

B e t w e e n -

ANDREW CHARLES THEOPHANOUS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 JUNE 2004, AT 11.20 AM

Copyright in the High Court of Australia

MR S.A. SHIRREFS, SC: If the Court pleases, I appear with my learned friend, MR J.F. BLEECHMORE, for the applicant. (instructed by Doogue and O’Brien)

MR D.J. BUGG, QC: If the Court pleases, I appear with my learned friend, MR D.J. LANE, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ: Yes, Mr Shirrefs.

MR SHIRREFS: If the Court pleases, this application, in our submission, raises two important issues, the first being the nature and operation of the immunity provided by section 16 of the Parliamentary Privileges Act in the circumstances here where, in the course of a criminal trial, material in breach of that Act was before the jury. The second issue is in relation to the scope and breadth of what is now being referred to as the second category in Ridgeway.

With respect to the issue of parliamentary privilege, in our submission, the court correctly found there to have been a clear breach of the immunity provided by section 16(3) of the Parliamentary Privileges Act. That is set out in paragraph 70 of the judgment at page 194 of the application book. That immunity is provided both in terms of article 9 of the Bill of Rights and also by section 16(3) which is declaratory of article 9 of the Bill of Rights and, in our submission, is absolute and unqualified.

The court below also held, correctly, in our submission, that that immunity is absolute but then went on and, in paragraph 71, in our submission, fell into error by applying the proviso notwithstanding. As a consequence, the court has given legal effect to the process in which the breach has occurred. In our submission, there is no room for operation of the proviso in the circumstances that pertain here.

HAYNE J: Why not?

MR SHIRREFS: Because the prohibition, the immunity, is absolute and it cannot be qualified, in our submission, by the operation of the proviso which qualifies it. As was said in Prebble in the House of Lords – this is to be found, I think, behind tab 2 in our list of authorities at page 403. In the speech of Lord Browne-Wilkinson in the House of Lords in Hamilton v Al Fayed the court also have followed and adopted what was said by the judicial committee in Prebble. At page 403F - - -

GLEESON CJ: Is that right? We have got - - -

MR SHIRREFS: Different pages - tab 2 I think it is behind.

GLEESON CJ: Prebble starts at page - - -

MR SHIRREFS: No, Hamilton v Al Fayed I am referring to, tab 2, page 403, in the speech of Lord Browne-Wilkinson. His Lordship said:

It is in my judgment firmly established that courts are precluded from entertaining in any proceedings (whatever the issue which may be at stake in those proceedings) evidence, questioning or submissions designed to show that a witness in parliamentary proceedings deliberately misled Parliament. To mislead Parliament is itself a breach of the code of parliamentary behaviour and liable to be disciplined by Parliament -

there referring to the Church of Scientology and Pickin v British Rail.

For the courts to entertain a question whether Parliament had been deliberately misled would be for the courts to trespass within the area in which Parliament has exclusive jurisdiction.

HAYNE J: Assume all that to be so, what is the consequence that you say follows when the Court of Appeal, under the Crimes Act, is called on to determine a criminal appeal?

MR SHIRREFS: The consequence is in a case involving, as it did here, a clear breach of the prohibition in section 16(3); there is no room for the operation of the proviso.

HAYNE J: What does that mean, Mr Shirrefs? I understand the words but the Court of Appeal is told by section 568 - - -

MR SHIRREFS: To turn its mind to the question.

HAYNE J: So what is the legal principle that you are advancing?

MR SHIRREFS: It falls into the same category as in the Wilde sense, in our respectful submission, that it is a fundamental irregularity and also in the sense that this was not a trial according to law. It was contrary to law because Parliament forbid, in section 16(3), the introduction of this material in the course of the trial and yet the history of article 9 for a jury in this case to entertain the question as to whether or not Parliament have been misled, notwithstanding the nature of the issue at stake in the proceeding and to allow the proviso to apply qualifies what, in our submission, and the court below held, to be the absolute prohibition embodied in the Act.

HAYNE J: There is the awkwardness for your argument that it was your side that introduced this evidence.

MR SHIRREFS: Absolutely, but it does not diminish - - -

HAYNE J: That was the wrongful reception of evidence, you could say. Is that right? It should not have been received.

MR SHIRREFS: Your Honour, it should not have been introduced by counsel for the applicant in the course of his evidence, but the breach identified as being the fundamental breach by the court below was the cross-examination of the applicant at the commencement of his cross-examination where he was taken to a speech made in parliamentary proceedings and asserted that he had lied to the Parliament as a general attack on his credit.

HAYNE J: Whether there is a wrongful reception of evidence constituted by the evidence in-chief or by the cross-examination, let it be assumed to be only via the cross-examination.

MR SHIRREFS: Yes.

HAYNE J: Let it further be assumed that the point raised in the appeal might be decided in favour of the appellant, that is there was the wrongful reception of evidence in cross-examination. Let that be the threat. Is the Court of Appeal then to go on to consider whether no substantial miscarriage of justice has occurred?

MR SHIRREFS: Not in our submission, no, there is no operation for the proviso in the Wilde sense because of the nature of the irregularity. It is not a privilege that here extends to the applicant. It is a privilege that is the privilege of the House and a privilege of the Parliament that has as its basic underlying principle the freedom of speech of members of Parliament at the time that they stand in the House to speak. That is an absolute and unqualified freedom. Once it is qualified, as it was here, by the operation of the proviso in circumstances where we say there was no room for its operation because of the nature of the irregularity in the trial process where it is inadmissible to introduce this material, where it is unlawful to introduce this material in the proceeding, vitiated the process. It resulted in a trial being conducted contrary to law because this jury, in its deliberations - - -

HAYNE J: But that is always the case where the proviso is engaged. You never get to the proviso unless you have first determined that there has been a departure from applicable principles. You say this is a special principle, and I understand that, but it is the last step in saying that somehow the proviso cannot be engaged. It is the point to which I draw attention.

MR SHIRREFS: It cannot be engaged, in our respectful submission, because to do so would undermine and qualify the principle at stake in relation to section 16 and article 9 of the Bill of Rights. If, as is submitted and has been found to be the case that the immunity, the prohibition of long standing is based upon the constitutional position of the House and the freedom to speak, once that position is qualified by the introduction and operation of the proviso it undermines the purpose for which it exists and, as was said in Al Fayed, the court cannot trespass into that area. By the operation of the proviso here the court has trespassed into that area by the jury being permitted to entertain the question as to whether or not Dr Theophanous misled the House.

Paragraph 71 is where we say the court fell into error. Paragraph 71, they said that notwithstanding that which had gone before, of which we have no complaint - it is at page 194 of the application book and it is the last two lines on that page:

It may be accepted that the admission of the evidence in breach of the Privileges Act was an irregularity which occurred in the trial but it was one, as we think, which was no more fundamental than any other case where irrelevant or unlawfully obtained evidence finds its way into the trial.

In our submission, the court there err because the nature of the irregularity was such, in our submission, it was a fundamental one of the type identified in Wilde. Moreover, the evidence itself, which was the cross-examination of Dr Theophanous, was not itself irrelevant; it was impermissible to introduce it. It was relevant cross-examination, but there was a prohibition on the questions being asked because of that which is set out in article 9 and embodied in section 16(3).

Moreover, it is not analogous to unlawfully obtained evidence. Unlawfully obtained evidence is not otherwise inadmissible. Unlawfully obtained evidence ordinarily arises in the evidence-gathering process where police or other people have engaged in unlawful activity. Here the introduction of this question in the cross-examination was unlawful in the process and inadmissible and it is not apposite to equate the introduction of the evidence through cross-examination with irrelevant material or with unlawfully obtained evidence. Neither was analogous to the situation that pertained here.

This was a case where, in our submission, there was no room for the operation of the proviso because of the very nature of the principle that was at stake and because the jury – and this is also to be found at the bottom of page 402 in the judgment of the speech of Lord Browne-Wilkinson in Hamilton v Al Fayed referring to Blackstone’s Commentaries. Blackstone said in his Commentaries on the Laws of England:

‘the whole of the law and custom of Parliament has its origins from this one maxim, that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.’

It was allowed to be examined and adjudged elsewhere as a result of the operation of the proviso here by this jury being permitted to entertain the question of Dr Theophanous’ credit - - -

HAYNE J: So it has nothing whatever to do with whether the jury - the proviso has something to do, perhaps everything to do, with what the Court of Appeal does.

MR SHIRREFS: The application of the proviso has meant that a jury had been permitted, not permitted to consider it, but the conviction, the verdict, stands in circumstances where it was before the jury in contravention of the Act. By applying the proviso it countenances that breach which we say is absolute and cannot be qualified.

The consequence of it means, in our respectful submission, that insofar as the future is concerned for the House, if the same situation arises the prohibition contained in section 16(3) is not to be regarded as being absolute if the conviction is allowed to stand in the circumstances as they do here. Those convictions relate to count 3, count 5 and count 6, although count 2 was already overturned on another ground, to which this particular issue pertained. In our respectful submission, this is an important question and it goes to the heart of the nature and operation of the privilege embodied in article 9 and also within section 16(3) and the issue of a criminal trial and the operation of the proviso.

In relation to the second area, which is concerned with the Ridgeway discretion, this relates to count 2 and count 5. In considering the exercise of the discretion to exclude evidence in relation to count 2 and count 5, the court below did by reference to what has become known as a second category in Ridgeway. In relation to count 2, although the court below accepted the possibility that the participation by the police agent, Cheung, and officers of the NCA in the conspiracy was an essential ingredient of the charged offence, in our submission, the court fell into error by applying a rigid and technical comparison with the second category of case described in the joint judgment, rather than having proper regard to the principles that underpin that category identified in the second category in the joint judgment in Ridgeway.

In our submission, the finding by the court below - this is to be found at paragraph 146 - of a very clear distinction between the commission of substantive offences - paragraph 146 is at page 228 of the application book. In our submission, the finding of:

a very clear distinction between the commission of a substantive offence . . . and the commission of an inchoate offence such as conspiracy –

has introduced a limitation on the exercise of the discretion to exclude evidence which, in our submission, there is no conceptual justification.

Conceptually, when one considers the principles of high public policy that have underpinned since Ireland, through Bunning v Cross, the exercise of the discretion to exclude evidence based on notions of convictions being obtained at “too high a price” threat to the rule of law and curial approval, there is no conceptual justification to support the distinction which the court draws in paragraph 146 between offences such as conspiracy where here, through the aegis of Cheung at the instigation of the NCA, he has attempted to procure the involvement of the applicant in an agreement in which Cheung becomes a party to it, officers of the NCA become a party to it and then the NCA and Cheung set about implementing the object of the conspiracy.

There is, in our submission, no justification to distinguish, as the court did, a very clear distinction between an inchoate offence of conspiracy and substantive offences of the type that were at issue in Ridgeway, nor does Ridgeway itself, in our submission, warrant the making of such a distinction. Ridgeway was concerned with substantive offences where, insofar as that was concerned, the conduct of the police constituted an essential element of the charge brought, that was the importation into the country.

But in Ridgeway, Ridgeway was the instigator of the procurement of the drugs in question in Asia, organised their movement, police intervened and they became the couriers of the drugs into the country. Here, the NCA and Cheung were the instigators of this offence. The NCA and Cheung set about to procure, at whatever cost it seems, the involvement of the applicant in what was being sought by Cheung on instructions from and at behest of officers of the NCA.

At paragraph 150, the other error we identify is the failure of the court to decline and to agree that the learned trial judge was correct to
disregard the conduct of Cheung and officers of the NCA after 8 September 1998 when, on one view of the Crown case, it was said that the conspiracy in question had already been formed. Section 86(3) of the Crimes Act, as it then was, now clause 11.5 of the Criminal Code for the purpose of a Commonwealth conspiracy, focus attention to the overt acts because for the Commonwealth conspiracy to be committed requires proof of at least one overt act having been committed by the person charged or a party to the conspiracy.

That focuses attention on the conduct of officers of the National Crime Authority and Cheung, insofar as identifying whether or not the offence has been committed. Now, in considering count 2, the ground in relation to count 2 which was concerned with the directions on count 2 on the conspiracy, the court identified the requirements of section 86(3), but seem to have totally disregarded them in relation to the consideration of the exercise of discretion on the question as to whether or not evidence should be excluded.

In our submission, this was a case where the court has technically and rigidly referred to the second category of Ridgeway and sought to distinguish the facts of this case from that category. As was pointed out in the joint judgment in Ridgeway the discretion at question there is simply a manifestation of the basic discretion that arises out of Ireland, that arises out of Bunning v Cross and is simply analogous to the same form of discretion that exists in relation to the exclusion of evidence. It is to those principles that regard should be had, not to the second category as set out in the joint judgment in Ridgeway.

The same pertains to count 5. In count 5 the conduct complained of there is the fact that the NCA, through Cheung, procured the involvement of the over-stayers for them to engage in criminal offences and, therefore, afterwards, be able to go to the applicant to procure his involvement in assisting them in relation to their immigration status. That, necessarily, involved the NCA through Cheung procuring the commission of offences by third parties.

Now, a rigid application of the second category, the court said, is not there concerned with offences which were procured, which is not the offence before the court but offences procured of third parties. But it is akin, in our submission, with the same situation in D’Arrigo, where in D’Arrigo the Attorney-General of Queensland authorised the theft of motor vehicles as part of an operation to thereafter entrap a person who was thought to be a receiver of stolen goods. It operates in the same way.

GLEESON CJ: Thank you, Mr Shirrefs. We do not need to hear you, Mr Bugg.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave, and the application is refused.

We will adjourn for a short time to reconstitute.

AT 11.41 AM THE MATTER WAS CONCLUDED