Yarran v The Queen [2004] HCATrans 417 (27 October 2004)

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Yarran v The Queen [2004] HCATrans 417 (27 October 2004)

Last Updated: 5 November 2004

[2004] HCATrans 417

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P71 of 2003

B e t w e e n -

MALCOLM ROBERT YARRAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 27 OCTOBER 2004, AT 3.17 PM

Copyright in the High Court of Australia

MR B.S. HANBURY: If it please the Court, I appear on behalf of the applicant. (instructed by Beau Hanbury)

MR K.P. BATES: If your Honours please, with my learned junior, MS N.A. LOCKWOOD, I represent the respondent. (instructed by Director of Public Prosecutions (Western Australia))

GLEESON CJ: Yes, Mr Hanbury.

MR HANBURY: Your Honour, the applicant asks the Court to extend time.

GLEESON CJ: Is that opposed, Mr Bates?

MR BATES: No, your Honour.

GLEESON CJ: Yes, you have that leave.

MR HANBURY: Your Honour, the applicant has filed an application for special leave which appears at page 66 of the application book. Your Honour, the applicant to date has not continued with the ground 1.2.

GUMMOW J: What page is that?

MR HANBURY: Your Honour, that is at page 67.

GLEESON CJ: You can probably deal fairly quickly with 1.3 also because the substance of this seems to be whether you should get special leave to pursue ground 1.1.

MR HANBURY: Yes. In relation to ground 1.1, members of the Court, with respect, should know that this was not a ground that was raised in the court below. Having regard to what this Court has said in, for example, the case of Gipp, it is the applicant’s contention that notwithstanding that the matter was not raised in the court below that the Court is able to take the case and special leave - - -

GLEESON CJ: If your argument under ground 1.1 is correct, this is a point which, if taken below, would have produced the result that the order about which you are complaining could not have been made.

MR HANBURY: Yes, your Honour.

GLEESON CJ: Maybe you have to face up – and we might as well come directly to it – to the effect of the decision in Fardon on this application.

MR HANBURY: Yes. Your Honour, it is part of the submissions for the applicant Fardon was not a case that was included or cited by the applicant and nor was the case of Baker which - - -

GUMMOW J: The question is, to get to the point, if the applicant in those cases could not succeed, how are you going to show Part 14 is invalid?

MR HANBURY: Your Honour, in relation to Part 14 of the Sentencing Act - - -

GUMMOW J: Part 14 is linked right into the actual imposition of the sentence, is it not?

MR HANBURY: Yes, your Honour, it is. The West Australian legislation contained in Part 14 does not provide for the type of particularity that the legislation in Fardon’s Case exhibited - - -

GUMMOW J: No, but this is imposed as a step in the trial, is it not? Is that not how Part 14 operates?

MR HANBURY: I am sorry, your Honour, I just missed that.

GUMMOW J: Is that not how Part 14 operates, you look at section 98?

MR HANBURY: Your Honour, Part 14 operates following the - - -

GUMMOW J: If a superior court sentences, it may in addition proceed under Part 14.

MR HANBURY: Yes, your Honour.

GUMMOW J: So is the legislation that different to the Victorian legislation considered in Moffatt? Is that the scheme that was involved there?

MR HANBURY: Not quite, your Honour. The scheme in Western Australia does not contain the strictures that the Victorian legislation has. There is no mention in the Western Australian legislation as to a review by a judicial officer following upon the making of the order. The regime in Western Australia simply provides for the court, with respect, to make an order - - -

GUMMOW J: You need a parole order, do you?

MR HANBURY: Yes, your Honour. This parole order, if it is made, is made by the Governor on the advice of the Executive Council. The prisoner is not entitled to reasons for the decision that is made when consideration is made as to whether or not the prisoner should be released on parole. In addition, there is an express reference to the exclusion of the rules of natural justice - - -

GUMMOW J: Where do we see that?

MR HANBURY: Your Honour, that is in the Sentence Administration Act and I would be grateful – I am sorry, your Honour, I was going to refer the Court, with respect, to the book of materials kindly provided by the respondent, but the position in relation to your Honour’s question is that pursuant to the provisions of the Sentence Administration Act 1995 - your Honour, without looking at it at the moment, section 115 of that Act, the rules of natural justice - - -

GLEESON CJ: I just do not seem to have that, Mr Hanbury. I cannot find it.

GUMMOW J: We have Part 13 and Part 14.

HEYDON J: You are talking about the Sentence Administration Act 1999?

MR HANBURY: 1995, I thought - - -

HEYDON J: Which is not in the book of materials?

MR HANBURY: I am sorry, your Honour, it is not in the book of materials.

HEYDON J: Perhaps you could read it out.

MR HANBURY: Your Honour, my friend has been kind enough to provide me with a copy of the Sentence Administration Act 2003 which is the same Act and material to this question. There is nothing different in the Sentence Administration Act 2003 as compared with the Sentence Administration Act 1995, but it is section 115 of the Sentence Administration Act 2003 under the heading:

115. Exclusion of rules of natural justice

The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to the doing or omission of any act, matter or thing under Parts 2 to 6 by –

(a) the Governor;
(b) the Minister;
(c) the Board;
(d) an authorised person as defined in section 108(1); or
(e) the CEO.

Which I take to mean, the Chief Executive Officer. Section 114, if I could advise, with respect, the members of the Court is headed “Reasons for decision maybe withheld” and relevantly at subsection (2) it provides:

If a person is required to give a prisoner reasons for a decision, then if the person decides that it would be in the interest of the prisoner or any other person, or the public, to withhold from the prisoner any or all of the reasons, the person may do so.

It is contended by the applicant in this application that the 1995 legislation provides for such matters and so the prisoner, in this case the applicant, would not be entitled necessarily for reasons for decision as to whether or not he would be released on parole.

GLEESON CJ: All of this shows, as this Court has said and other courts have said many, many times, that it is a very serious power to be exercised and the occasion for exercising it has to be very carefully considered, but what is the principle by reference to which this Court could nullify the legislation of the State on this topic?

MR HANBURY: The principle, your Honour, in my respectful submission, is contained in the case of Kable and - - -

GUMMOW J: But is this legislation all that different from the old New South Wales legislation in Baker?

MR HANBURY: Your Honour, in my respectful submission, it is. In the case of Baker, as I apprehended the reasons for decision of the Court and reading the judgment, the difference between New South Wales legislation and Western Australian legislation is that the New South Wales legislation at least, with respect, provides for judicial review and sets out a series of provisions which would guide the decision-maker, as one would expect, whereas the West Australian legislation does not give such guidance. Certainly, your Honour, with respect, there is no, as I would apprehend the West Australian legislation, right of review, certainly not by a judicial officer, as to the decision refusing to release the prisoner. So my answer, with respect, is that the West Australian legislation is quite deficient in comparison to the New South Wales legislation.

GLEESON CJ: How long has Western Australia had this legislation?

MR HANBURY: Your Honour, previously under the provisions of the State Criminal Code and, in particular – and my learned friend may be able to assist me with this section – section 686 or 688. It is referred to, your Honour, in the case of Chester and cases following thereafter. This State has had contained within the Criminal Code the power to impose an indefinite sentence and that power is no longer contained in the Criminal Code but it is now contained - - -

GLEESON CJ: But how long?

MR HANBURY: Your Honour, my understanding of – can I say, at a guess, if I may, since 1902.

GLEESON CJ: Since 1902?

MR HANBURY: Yes, when the Code – I am sorry, 1912, when the Code in the State was legislated for.

GLEESON CJ: So this system of orders for indefinite imprisonment following the completion of a finite term really has existed throughout the whole of the 20^th century?

MR HANBURY: As I understand it, your Honour, yes, certainly in this State.

GLEESON CJ: Do we know how many people there are in Western Australia at the moment serving sentences of indefinite imprisonment?

MR HANBURY: Your Honour, if I could tell the Court, with respect, advisedly, I have endeavoured to make some inquiries about that and my friend, with respect, may know more about it than me, but my understanding from the inquiries that I made was that there are approximately 15 persons who have been made the subject of such orders.

Your Honour, the contention in broad terms for the applicant is that the West Australian legislation is invalid. It does not adhere to the principles that were declared by the case of Kable. The legislation in Western Australia is of broad application. The legislation enables a court to theoretically impose such a sentence on a person who is a persistent thief. This is not the same as the other States. In Victoria, as I understand the legislation, that State has made provision for the imposition of the sentence in respect of offences where there is life imprisonment. Queensland have legislation which is quite detailed.

GLEESON CJ: I do not know how often thieves are made the subject of orders for indefinite imprisonment, but this man of yours does not fit into that category.

MR HANBURY: He certainly does not, your Honour. The point, with respect, that the applicant makes there is that the power, as the Court has said in other cases, should be exercised only where it is necessary to protect the community. It would be fair, with respect, to say that the applicant in this case perhaps would fall into that category, but the submission that is made for the applicant is that the legislation in Western Australia does not have the particularity that the other States have.

It is theoretically of wide application, although, as your Honour, with respect, mentioned, it would be very unlikely that such a power would ever be exercised in relation to a thief. In the circumstances, however, the applicant’s contention is that the State legislation, because it does not provide for particularly judicial review in what occurs after a judicial decision has been made, that decision being one to make the order in the first place, is invalid because of what the members of the Court, with respect, in Kable and other cases have said.

GUMMOW J: Do the ordinary appeal provisions attach to a sentence under Part 14? Your client sustained a sentence under Part 14.

MR HANBURY: Yes, your Honour.

GUMMOW J: What is the appellate history of that?

MR HANBURY: Your Honour, the applicant has a right of appeal under the provisions of the Criminal Code but only as to the decision declaring him to be – or the decision, the judicial decision - - -

GUMMOW J: Under section 98. The decision under 98 attracts an appeal right, does it not?

MR HANBURY: Yes, your Honour, it does, I am sorry. Yes, it does.

GUMMOW J: Was that exercised in this case?

MR HANBURY: Yes, it was.

GUMMOW J: With what result?

MR HANBURY: With no result for the applicant.

GLEESON CJ: The Court of Criminal Appeal just said as a matter of discretion this was a proper case to exercise it?

MR HANBURY: Yes.

GLEESON CJ: A proper case to make the order, I mean.

MR HANBURY: Yes. Unless there is a matter further, those are the submissions, your Honour, for the applicant.

GLEESON CJ: Thank you, Mr Hanbury. Yes, Mr Bates.

MR BATES: If your Honours please, in our submission, having regard to the decisions of this Court in Kable, Fardon and Baker, it is the respondent’s submission that the Western Australia indefinite sentencing legislation is valid when tested against the Kable principle and, therefore, there is no question of law of public importance such as to warrant a grant of special leave in this particular matter.

GUMMOW J: How many people are detained at the moment?

MR BATES: I do not have any figures of how many people are - - -

GLEESON CJ: Mr Cock is in Court, he can tell you, I am sure, the answer to this question.

MR BATES: Yes. The question was how many people are currently detained, is that correct?

GUMMOW J: Yes. Mr Cock has confirmed that my learned friend, Mr Hanbury, is right, that there are 15 people currently detained. I can indicate to your Honours that in recent years we have had decisions of Lowndes and McGarry and previously the decision of Chester, and those cases by this Court have laid down not only the principles to be followed but the approach to be followed by sentencing courts.

GLEESON CJ: Yes, but the people who have been dealt with under this legislation have come to the High Court on a number of occasions, but is the legislation that is currently in force – I suppose, more accurately, is the legislation that was applied in the case of this present applicant – materially different in any respect from the legislation that has been around since 1912 or whenever?

MR BATES: As I understand it – I do not know the age of the legislation, but it is of a longstanding nature.

GLEESON CJ: I think Mr Cock - - -

GUMMOW J: You have to be precise, I think, if you are talking to us.

MR BATES: I can indicate that there were previously provisions in the Criminal Code and then when we had a Sentencing Act which amalgamated all matters relating to sentences the provisions were put into the Sentencing Act. My learned junior has confirmed through Mr Cock that the previous legislation was under the same terms, so it was merely just the consolidation of sentencing matters.

GLEESON CJ: But does it go back to 1912?

MR BATES: It does, your Honour, yes.

GLEESON CJ: Was Western Australia, as it were, the leader in this field or was there similar legislation in Victoria? Moffatt, we know, dealt with some Victorian legislation that is now somewhat different. But how long has legislation of this kind been around in Australia?

MR BATES: I think there has been provisions in a number of States, Tasmania and Northern Territory and also New South Wales, for habitual criminals. That was - - -

GLEESON CJ: I am familiar with the habitual criminals legislation, but did that legislation involve indefinite detention?

MR BATES: I believe that it did, your Honours, but this legislation appears to be different to the habitual criminals legislation. Now in all of the States except for Western Australia there is similar provisions, but they have review by the courts as opposed to the Executive - - -

GUMMOW J: That is the distinction here, I suppose.

MR BATES: That is right, yes.

GUMMOW J: Perhaps you need to update your legislation. Is there any scope at all for judicial review under the Sentence Administration Act?

MR BATES: No, the provisions which have been read out to you by my learned friend, Mr Hanbury – there is an exclusion of rules of natural justice and also the reasons for decision may be withheld, but there is quite an extensive review procedure with various reports and reviews in place under the Sentence Administration Act, so a person who is subject to an indefinite imprisonment sentence is reviewed regularly at the time - - -

GUMMOW J: Yes, but who reviews the reviewers is what I am trying to get out of you?

MR BATES: Yes. There is no review mechanism of the Executive.

GLEESON CJ: How regularly is the review undertaken?

MR BATES: Yes, I can take the Court to those particular matters.

GUMMOW J: Why would not the reviewers be subject to the prerogative writs? Is that excluded as well?

MR BATES: Prerogative writs are not excluded. The rules of natural justice are excluded - - -

GUMMOW J: Forget about the rules of natural justice.

MR BATES: - - - and also the reasons for decision may be withheld, but otherwise - - -

GLEESON CJ: Suppose somebody bribed a reviewer, what would happen then?

MR BATES: We would submit that prerogative writs could - - -

GLEESON CJ: Or suppose a reviewer was shown to act out of personal malice, bias, would that be amenable to any kind of judicial intervention?

MR BATES: We would submit that prerogative writs could be used in that instance to attack the decision.

GUMMOW J: All these matters must, I would have thought, indicate some caution on the part of the court in making the order in the first place.

MR BATES: Yes, that is right, and that was the point made by Justice Kirby in the McGarry decision. If I can take the Court to the book of materials at page 63, Justice Kirby looked at this very issue. It is the respondent’s book of materials, it is page 63 of the book and it is paragraph 59 in the judgment of Justice Kirby in the decision of McGarry v The Queen. Justice Kirby there looked at the structure and content of the Sentence Administration Act – that was the previous Act, but the current Act is in all relevant respects the same – and the point is made there:

that an order of indefinite imprisonment is wholly exceptional, and a significant departure from the principles of sentencing ordinarily observed in Australian courts. Instead of judicial review of the indefinite sentence, as is provided for in other States of Australia, the prisoner is dependent upon procedures for reconsideration within the Executive Government.

Then Justice Kirby goes on to indicate the various reports that are required and the way it works:

Thus the Minister may request a report on a person sentenced to indefinite imprisonment at any time. Such a report may recommend whether or not the Governor should be advised to exercise a power to release the person from custody. If the Minister does not initiate a request for a report, the Board is required to give a report to the Minister one year after the indefinite term commences and every three years thereafter. If a report recommends the release of a person from custody, it must assess the degree of risk that such release would appear to present to the safety of people in the community. However, the rules of natural justice, including any duty of procedural fairness, are stated not to apply to the actions of the Governor, Minister or Parole Board. Upon the assumption that this exclusion of judicial scrutiny is effective, and that initiatives for review, and the decision upon review, are susceptible to ministerial (and hence political) decision-making, the scheme of the Western Australian legislation reinforces the impression that would in any case be conveyed by s 98 of the Sentencing Act. The imposition of an order for indefinite imprisonment is . . . a “serious and extraordinary step”.

So it is because of the limitations of the Sentence Administration Act that is one of the reasons why it is a serious and extraordinary step to impose indefinite imprisonment and why such an order is wholly exceptional. Recent decisions of this Court have established the relevant principles which reinforce matters of that kind and also the rigorous procedures that need to be undertaken before a court would make such an order.

GLEESON CJ: In both Baker and Fardon, I think – certainly in one of them – reference was made to a fairly recent decision of the House of Lords in relation to United Kingdom legislation and also European systems concerning detention of a preventive nature following the expiration of what would otherwise be an appropriate term of imprisonment. In those European systems what are the procedures for review, do you know?

MR BATES: I am not aware of what the procedures for review are in the European systems, your Honour, but legislation in most other States now have review by the court, so it is the courts rather than the Executive than undertakes the review process.

GLEESON CJ: Indeed, it was the engaging of the courts in the review process that in one or other of those cases was said to engage the principle of Kable.

MR BATES: That is right.

GLEESON CJ: Because the principle of Kable is about what you are not allowed to use courts for, not what you are not allowed to use the Executive for.

MR BATES: Yes. In Moffatt that was the argument that they would not have any difficulty if the review was conducted by the Executive, but the challenge there was the infringement of Kable because the review was conducted by the courts in that case, and that challenge, of course, did not succeed in that particular case.

What we would submit in this particular case is that the Kable principle, when tested against the current legislation, the current legislation is valid. It is legislation which is of longstanding and it is legislation which has very strict principles that apply to it and strict procedures that necessarily apply to it because of the extraordinary nature of the order that is made in this particular case.

There is a regime of various reports and reviews that are conducted which, in our submission, enable relevant decisions to be made in a timely manner as to whether a person the subject of such an order as to whether and when they should be released. In our submission, this system is no different to the system that applies in respect of sentences of life imprisonment for murder where it is the Executive – that once the minimum term before eligibility for parole has been served, it is the Executive that decides whether - - -

GUMMOW J: Now, in McGarry [2001] HCA 62; (2001) 207 CLR 121 at 126 in paragraph 8 we noted in the joint judgment that:

The Criminal Code (WA) makes separate provision for appeals to the Court of Criminal Appeal against an order for indefinite imprisonment . . . and against any other sentence –

and indefinite imprisonment attracts an appeal as of right. Is that so?

MR BATES: That is the position.

GUMMOW J: Is that still so?

MR BATES: That is the position, your Honour, yes. So the legislation in that instance is concerned that these sentences are subject to an appeal as of right and the appeal courts in this State – in this particular decision in Yarran, Justice McKechnie in his judgment collects all the principles from the cases, including the recent pronouncements by the High Court, and sets out those principles in the decision. It is clear from the treatment by the learned sentencing judge and also the manner in which the appeal court treated the matter that they had regard to all the decisions of this Court and the principles that apply and the exceptional nature of this power and the procedures by way of the reports and the evidence that is required for the making of such an order, which is by its nature extraordinary and only confined to very rare cases that qualify. May it please the Court.

GLEESON CJ: Yes, thank you. Yes, Mr Hanbury.

MR HANBURY: Briefly, your Honour the Chief Justice, with respect, in the case of Fardon referred to some European law and a decision of the House of Lords. That appears at page 90 of the respondent’s book of materials.

GLEESON CJ: What is the title of Fardon?

MR HANBURY: I am sorry, your Honour, if I could just have a moment – Fardon v Attorney-General for the State of Queensland.

GLEESON CJ: And it is Baker v The Queen, is it not?

MR HANBURY: Yes, your Honour.

GLEESON CJ: Thank you. We will adjourn for a short time to consider the course we will take.

AT 3.46 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.57 PM:

GLEESON CJ: In the draft notice of appeal filed together with the application in this matter, the applicant seeks to rely on three grounds of appeal. Counsel for the applicant has indicated that the second proposed ground of appeal is withdrawn, and we are of the view that there are insufficient prospects of success of the third ground of appeal to warrant a grant of special leave on that ground.

In relation to the first ground in the draft notice of appeal, the applicant seeks to challenge the constitutional validity of the Western Australian legislation pursuant to which an order for indefinite detention was made. The ground of proposed challenge is based on the decision of this Court in Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51. In the light of the recent decisions of this Court in Baker v The Queen and Fardon v Attorney-General of Queensland, we are of the view that there are insufficient prospects of success of an appeal based on that ground to warrant a grant of special leave. The application is dismissed.

Mr Hanbury, you are in the next matter. Does that stand or fall on the decision that we made in this matter?

MR HANBURY: Your Honour, as to the first ground it certainly does.

GLEESON CJ: But are there other grounds that you want to argue?

MR HANBURY: There are other grounds.

GLEESON CJ: Then we will adjourn until 9.30 tomorrow morning.

AT 4.00 PM THE MATTER WAS CONCLUDED