Couchy v Del Vecchio [2004] HCATrans 520 (3 December 2004)

--

Couchy v Del Vecchio [2004] HCATrans 520 (3 December 2004)

Last Updated: 18 January 2005

[2004] HCATrans 520

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B13 of 2002

B e t w e e n -

MELISSA JANE COUCHY

Applicant

and

JEANNIE ANNE DEL VECCHIO

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 11.45 AM

Copyright in the High Court of Australia

MR A. BOE: Your Honours, I appear for the applicant. (instructed by Boe Lawyers)

MR P.J. DAVIS: May it please the Court, I appear for the respondent. (instructed by Queensland Police Service Solicitor)

MR BOE: The applicant’s position is relatively transparent in our papers, we hope.

GUMMOW J: We have some supplementary submissions.

MR BOE: I was not going to take the Court through any of the matters raised in the documents if that was convenient. At the end of the day, there are only four brief points that we wish to add to the written submissions. Firstly, whichever way, if I can use that phrase loosely, the majority view can be taken from Coleman v Power, what is clear is that the magistrate misdirected himself as to which test to apply in order to convict and that test that he applied was accepted as being correct by each of the appeal courts below. Our submission essentially is that there is no answer to even the members of this Court who have dissented on the narrowing down of the provision that, in truth, the magistrate never contextualised the conduct according to the approach taken certainly by the joint judgment and Justice Kirby and perhaps even the Chief Justice, including what Justice Callinan had to say about the issue of how the section ought to be applied. In my submission, the - - -

GUMMOW J: The section has now been replaced, has it not?

MR BOE: It has, and we suffer a little from having the next docket following Mr Coleman in that we were stood over for some time and the provision has now been repealed. In any event, that same concept, that is the conduct and language used by people in the streets and in particular in their interaction with police, remains incorporated in the provisions that still are utilised by police in their interaction with those people. So, our submission primarily is one of individual miscarriage of justice but we do maintain that that interaction - - -

GUMMOW J: What was the penalty imposed on your client?

MR BOE: Three weeks gaol, your Honour.

GUMMOW J: Which has been served, I suppose?

MR BOE: One week was served and the balance was lifted upon the lodging of the first appeal but the Court of Appeal has allowed the appeal
against sentence such that no further time is to be served by her but the conviction has activated a series of suspended sentences, including one of three years imprisonment.

CALLINAN J: Mr Boe, I know that Coleman has been decided in the meantime, and of course I think the Act has been amended, but counsel for your client – your client was represented before the magistrate, is that right?

MR BOE: That is correct.

CALLINAN J: And she seems to have accepted at page 5 that the offence had been made out, although - there was a plea of not guilty, was there not?

MR BOE: There was a plea of not guilty.

CALLINAN J: Yes.

MR BOE: And we would not accept that Ms Hendy did that.

CALLINAN J: You are correct, this is a submission on sentence. You are quite right. Do not trouble about that any more.

MR BOE: As I say, the matters raised by Mr Davis in his supplementary response to our supplementary outline really do focus on the issue of whether this case remains, or if it ever was, an appropriate vehicle. We hope we have replied to that sufficiently in our reply filed yesterday. The matters of fact asserted by the respondent we do not accept and we set out in the reply document the very basis, we would submit, that the majority found in favour of following the interpretation or in fact how the Court, bar one or two - how the construction ought to be applied, is, as we have argued, we would say, in each court, including perhaps not as fully in the Magistrates Court but certainly by the time it reached the District and Supreme Courts. Short of the joint judgment stretching it to the concept of physical retaliation, we have maintained our position throughout. In those circumstances, although it would only take a brief addendum to the matters discussed by the Court in Coleman v Power, we would submit that because the interaction between the indigent indigene and police remains at the start of interaction of criminal law for those people, that there is a point of general application that the Court could still decide, or discuss at least. Those were the only matters orally that we wish to add to the written documents.

GUMMOW J: Yes, Thank you, Mr Boe. Yes, Mr Davis.

MR DAVIS: Your Honours, the point that seems to be the subject of the application for special leave is whether sections such as this incorporate the notion that the words are only insulting if there is some likelihood that they will provoke some retaliation. Now, that seems to be the special leave point that is being raised. Now, four of the seven Justices in Coleman v Power expressly disavowed such an interpretation. Of the majority who allowed the appeal in Coleman v Power, three Justices would favour an interpretation similar to that which is presently being pressed by the applicant. Justice McHugh, of course, did not. So, in my submission, the central point has in fact been decided in Coleman v Power. In relation to the question of whether or not this is a proper vehicle, it is asserted that - - -

GUMMOW J: The form of words here and the gender of the officer to which they were addressed are quite significant in a way. This is a very strong form of words.

MR DAVIS: Yes, your Honour.

CALLINAN J: Even a very well-trained police officer might be offended by these – a female police officer particularly, having regard to the words.

MR DAVIS: That is so and that leads into my complaint in relation to the way the matter has come to this Court because this notion of there being an element, in effect, of the term “insulting” that it must be such as to provoke or be likely to provoke some type of physical response, that was in fact not raised before the magistrate. It was not ventilated before the District Court and it was not ventilated before the Court of Appeal. True, it was continually said by the applicant here that the words all had to be looked at in context but this – and there is no problem with that – the words have to be looked at in the context of all the circumstances to ascertain whether they are insulting. But this notion that the words are not insulting unless they provoke or are likely to provoke some physical response was not raised below.

CALLINAN J: The other point is that, despite equal opportunity, perhaps even today the fact that those words were said to a woman might provoke a physical response on the part of men who were also present. I think there were male police officers present here too, is that not right?

MR DAVIS: That is so, your Honour, and - - -

CALLINAN J: And the age of chivalry may not have been entirely destroyed by equal opportunity.

MR DAVIS: Yes, your Honour.

GUMMOW J: You had better think before you venture into those waters.

CALLINAN J: I put it as “may”.

MR DAVIS: In my submission, the point is that there was no chance for the magistrate, for instance, to turn his mind to that.

GUMMOW J: Yes, we understand that.

MR DAVIS: So, in my submission, the central point has been determined by Coleman v Power. Secondly, this is not a proper vehicle because it was not ventilated below. They are my submissions.

GUMMOW J: Yes. Thank you, Mr Davis. Anything in reply, Mr Boe?

MR BOE: No thank you, your Honour.

GUMMOW J: Having regard to the course of the conduct of this litigation in the courts below, we are not satisfied that this would be an appropriate occasion to embark upon any further construction of the statute in question. Further, we are not satisfied in any event that there would be sufficient prospects of success to warrant a grant of special leave. Accordingly, special leave is refused.

We will adjourn to reconstitute.

AT 11.56 AM THE MATTER WAS CONCLUDED