Fingleton v The Queen [2004] HCATrans 380 (8 October 2004)

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Fingleton v The Queen [2004] HCATrans 380 (8 October 2004)

Last Updated: 8 October 2004

[2004] HCATrans 380

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B58 of 2003

B e t w e e n -

DIANE McGRATH FINGLETON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 OCTOBER 2004, AT 9.57 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR S.J. HAMLYN-HARRIS, for the applicant. (instructed by Woods Prince Lawyers)

MRS L.J. CLARE: May it please the Court, I appear for the respondent with MR M.J. COPLEY. (instructed by Director of Public Prosecutions (Queensland))

McHUGH J: Yes, Mr Walker.

MR WALKER: As your Honours have seen, all but one of the points which we have raised as fit for a grant of special leave in this Court are raised for the first time in this Court and, indeed, what might be regarded as the most important has been raised only as a result of a letter from the Court.

GUMMOW J: There are several questions, one as to why there was a demurrer under 598 of the Code, another one is why there was not an application for a ruling under 592A at an early stage.

MR WALKER: Yes, your Honour, there are those questions and other questions, equally or perhaps even more important, concerning the role of this Court when matters are sought to be raised for the first time here.

McHUGH J: We allowed a matter to be raised for the first time a year or so ago in the case concerning indecent assault where - - -

MR WALKER: To all of those there is the residual power of this Court which it can and does exercise from time to time with a due regard for the exceptional character of that jurisdiction to correct errors which are so fundamental and serious, not only for the individual, but for the system of law which has been administered in the particular case. This is one of those cases.

GUMMOW J: It does seem to be a pure question of law.

MR WALKER: It does. Now, your Honours, there is first what I will call whether there was any criminal responsibility at all, perhaps inexactly but conveniently called the immunity point. Your Honours have seen the written submissions that have been exchanged concerning that point. It is clear that it raises a matter of statutory interpretation which, although it focuses on Queensland legislation, will obviously be germane to the interpretation of cognate legislation elsewhere in Australia.

Of that cognate legislation, I can tell your Honours that the perhaps only material variation is that in Tasmania there is a good faith requirement which, of course, in itself does not place Tasmania completely apart from the matter.

McHUGH J: Is this in relation to section 30 or section 21A?

MR WALKER: Section 30 in particular, section 30 being that which provides that the content by the equivalency provisions of section 21A - - -

McHUGH J: There are two possible constructions of 21A, it seems to me. One is that it picks up all the immunities, including the qualified immunity in section 30, so that if you have a provision which expressly applied to a magistrate, then there would be no immunity. The second construction, or possible construction, of section 21A is even wider and that is that it stands alone and gives a completely independent immunity of its own and is not conditioned by section 30.

MR WALKER: Yes. If it came to it, we would urge the former rather than latter.

McHUGH J: Yes. The former seems the more natural one.

MR WALKER: Yes, and, in our submission, read in that fashion, it raises the questions that we have put towards the end of our written submission on this point. It raises the question as to how, if ever, the court would determine that certain conduct could not satisfy the statutory nexus “in the performance or exercise of an administrative function or power”.

Now, one can imagine examples. They are, fortunately, I suppose, for the good conduct of the judiciary in this country, all bizarre and difficult to imagine, but it is clearly a matter which would benefit from the guidance of this Court so as to pronounce whether or not what was done in this case, where the Crown identifies, contrary to the substantive argument which we would advance if there were no immunity, where the Crown relies upon what I will call motivation or malign purpose, in our submission, is of the greatest importance to understand whether or not the connective requirements in section 21A with “the performance . . . of an administrative function or power” were satisfied in this case. We say they plainly were.

McHUGH J: Yes, it is interesting that section 21A is not confined to administrative law proceedings or administrative law decisions; it refers to administrative functions or powers.

MR WALKER: There is a slightly narrowing phrase: it has to be conferred on a magistrate under an Act.

McHUGH J: Yes, under an Act.

MR WALKER: In this case there is no doubt about it, none at all.

GUMMOW J: Because of section 10.

MR WALKER: That is right. That is common ground. There is, however, the differences that have been thrown up in writing between the parties. They are very important major differences. They, after all, alter the perception, the reality as to whether what might be called unworthy motive, the kind of matters of spite that one might hoped to have left behind in one’s schooldays but which we know survives into formal institutions of adult life, the question whether that removes from the protection under 21A so as to expose perhaps chief magistrates or other magistrates, judges and the like, magistrate under 21A, expose them to the perils of the proceedings from which my client has suffered.

In our submission, that is a self-evidently generally publicly important issue which justifies the grant of special leave. The prospects of success on that point were special leave granted, are such that, in our submission, given the huge public disgrace suffered by my client such as to - - -

McHUGH J: It would be hard to imagine a stronger case of a miscarriage of justice in the particular circumstances of the case.

MR WALKER: Quite so.

McHUGH J: There is not only a question of conviction and a gaol sentence, but the applicant has lost one of the most important offices in the State of Queensland.

MR WALKER: Yes, and in the sentencing remarks alone in both courts below make the point upon which I rely here, that this is a very special case in relation to the particular calls for the correction of an injustice, if one has been done. There are some things that can never be made up for but, in our submission, a vindication of not having been criminally responsible is one that - - -

McHUGH J: Yes, I think we will call on your opponent. Yes, Mrs Clare. Mrs Clare, why should there not be a grant of leave in this case? You may succeed after a full argument of the case, but it certainly does seem to raise some important questions, particularly since this point has not been run at any stage below.

MRS CLARE: Yes, it is unfortunate that it was never raised earlier. We concede that if it were made out, then it would be a complete answer, notwithstanding the fact that it has been raised for the first time in this Court. Our argument, of course, in respect of it is that - - -

McHUGH J: Your argument is in paragraph 1.19 of your submissions, I think, is it not? That is the key to your submissions.

MRS CLARE: Yes, that is so, that the only way in which the applicant can avoid criminal responsibility for the act of retaliation against a witness must depend upon the operation of section 21A to extend the ambit of section 30 of the Code.

McHUGH J: It is not a question of extending it so much, is it? What it does – I suppose it is an extension – on the construction on which the applicant will urge is that 21A gives the same protection to a magistrate in respect of an administrative function or power as the magistrate would have in exercising a judicial function.

MRS CLARE: Yes, and the source of protection in respect of criminal responsibility has to be section 30 of the Code.

McHUGH J: Yes. It is amazing that this point was not recognised in Queensland. I would have thought that practitioners would have sections like section 30 in their head.

MRS CLARE: Well, your Honour, perhaps it was considered and dismissed because it is such an extreme consequence. Consequences would flow from this if, in fact, Parliament had intended that the administrative functions of magistrates would have complete protection.

McHUGH J: Well, they have to be done under an Act and that in itself is a limitation, so that is a question in itself. For instance, the applicant gives an illustration of a magistrate who assaults somebody, that is not done under an Act, even if it was done at a time when the magistrate was sitting in court, for example. But here the conduct seems to be the very conduct authorised by section 10 of the Magistrates Courts Act. She was doing what she was authorised to do.

MRS CLARE: That is so, but if one goes to the explanatory notes, for example, of the Act which introduced the amendment to the Magistrates Act, introduced section 21A, that is the Justice Legislation (Miscellaneous Provisions) Act. That was an Act which made substantive changes to the Criminal Code in addition to changes to this Magistrates Act. There was no attempt at all to amend section 30 of the Code. Section 30 of the Code is a specialist provision contained in the Criminal Code (Qld) in a chapter, Chapter 5, which is headed “CRIMINAL RESPONSIBILITY”, and which is so fundamental and important that its provisions, including section 30, apply to all persons charged with any offence under the statute law of Queensland.

McHUGH J: I know, but it makes a special exception in the case of people exercising judicial functions and it is at least an arguable view that 21A was designed to give magistrates protection against harassment and bringing of charges and other actions in respect of their administrative functions and powers when they perform them under the Act. Clearly, for instance, a licensing magistrate or somebody in a purely administrative law proceeding would need some such protection. One of the questions is whether this goes beyond that type of proceeding. It seems on its face to. It talks about administrative functions or powers. I know it is far reaching on one view of it, but so is section 30 on another view.

MRS CLARE: Yes.

GUMMOW J: After all, section 119B is in the Code.

MRS CLARE: Yes, it is.

GUMMOW J: It talks about “a person”.

McHUGH J: It does not expressly make a judicial officer guilty of the offence, although adjoining sections do, I think. Is it from 120?

GUMMOW J: Section 120, “Judicial corruption”.

MRS CLARE: Yes.

McHUGH J: That seems to indicate that it was never intended to catch judges or magistrates. Why is a question for Parliament. But there really does seem an important special leave point involved in the case, Mrs Clare. Your submissions may ultimately be accepted, but given the importance of the point generally and the importance to the applicant, it is difficult to see how you can resist a grant of special leave to appeal.

MRS CLARE: I understand the force of what your Honour is saying. The only other point that I would like to clear up at this point is in relation to the purpose of section 21A as it was introduced and, as evinced in the explanatory notes to the amending legislation. Equivalent provisions were inserted into the District Court Act and Supreme Court Act to give the same protection to judges.

McHUGH J: Yes.

MRS CLARE: Clause 18 of the explanatory notes, which is on page 8 of that document, identifies that the provision was designed in relation to the District Court to protect judges from personal liability and the example that is given in relation to the issuing of warrants.

GUMMOW J: Or, for example, you have legislation in Queensland, have you not, that provides the Court of Appeal with all sorts of administrative law reform functions, have you not?

MRS CLARE: Yes.

GUMMOW J: It is a consequence of this legislative broadening of what one might think of as the traditional rather narrow judicial task that gives rise to the need for a provision like 21A.

MRS CLARE: Yes. There was concern that judicial officers would be exposed in that broadening of function that is administrative but, as the explanatory notes identified, it had anticipated things like search warrants. If you take the example of a search warrant - - -

GUMMOW J: Anyhow, this all seems like good material for an argument at a later stage, Mrs Clare.

MRS CLARE: Thank you, your Honour.

McHUGH J: Thank you. Yes, there will be a grant of special leave in this case and you have leave to amend your notice of appeal, Mr Walker.

MR WALKER: May it please the Court.

AT 10.13 AM THE MATTER WAS CONCLUDED