Bakewell v The Queen [2009] HCATrans 75 (1 May 2009)

Last Updated: 1 May 2009

[2009] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D4 of 2009

B e t w e e n -

JONATHAN PETER BAKEWELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 1 MAY 2009, AT 9.31 AM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC: If the Court pleases, I appear with my learned friend, MR I.L. READ, for the applicant. (instructed by Legal Aid Commission)

MR M.P. GRANT, QC, Solicitor-General for the Northern Territory: May it please the Court, I appear with my learned friend, MS S.L. BROWNHILL, for the respondent. (instructed by Solicitor for the Northern Territory)

HAYNE J: Yes, Mr Abbott.

MR ABBOTT: This is an application for special leave for appeal from the judgment of the Full Court of the Supreme Court of the Northern Territory delivered on 11 December 2008 and also an application for an extension of time in which to make the application.

HAYNE J: Just before we go any further, what is the attitude about extension of time, Mr Solicitor?

MR GRANT: We do not oppose that application, your Honour.

HAYNE J: Yes, well you may proceed on the basis there is no difficulty about that.

MR ABBOTT: Thank you. The court had referred to it, by the Chief Justice, an agreed statement of facts and five questions of law, but it is only the first question of law that is the subject of this application, and essentially only sections 19(9) and (10) of the 2008 Amending Act which forms the subject of this application.

HAYNE J: Now, we are generally familiar with the matter. What is different about this legislation from the legislation considered in Baker [2004] HCA 45; 223 CLR 513?

MR ABBOTT: In Baker there was a judicial exercise to be gone through in relation to the determination of whether there were special circumstances or not. Here, the existence of prescribed circumstances of aggravation has been already found and already found twice. There is, therefore, no judicial work for the Court to do in relation to this matter. This is one step on from Baker, if the Court pleases.

HAYNE J: It is suggested in the papers that this legislation can have operation in relation only to Mr Bakewell. Is that your case?

MR ABBOTT: That is so, that in section 19(9) only has application in relation to Mr Bakewell and for that - - -

HAYNE J: Was that a matter in controversy in the courts below about whether the legislation could apply only to Mr Bakewell?

MR ABBOTT: No, it was conceded. I take the Court to the Chief Justice’s remarks at page 107 of the application book. In paragraph [32] of his Honour’s judgment he says:

As to the operation of s 19(9), the proposition that s 19(9) is aimed solely at the respondent is well founded and accepted by the Crown.

HAYNE J: Yes.

MR ABBOTT: He then continues at line 30 to say:

It is common ground that the only application previously dismissed, and to which subs (9) is capable of referring, is the application with respect to the respondent’s non-parole period that was dismissed by the Court of Criminal Appeal. It is also common ground that s 19(9) was inserted for the sole purpose of enabling a second application to be made for an order revoking the respondent’s 20 year non-parole period.

To a like effect, Justice Riley at page 145 of the application book at paragraph [112]:

It is not in dispute, and there can be no doubt, that these provisions are intended to apply to Mr Bakewell and no other person. He is the only person in relation to whom an application under s 19 had been dismissed in the circumstances provided for in the subsections. An application in relation to Mr Bakewell had been dismissed and a prescribed circumstance of aggravation had been established.

So taking the Baker example, it is as though the special circumstances had already been determined not to have existed. So this legislation requires a situation whereby the Director of Public Prosecutions has no discretion other than to bring a second application.

CRENNAN J: Were there other persons who had made successful applications under section 19(1)?

MR ABBOTT: I do not know whether there - section 19(1) did not exist – the precursor legislation, insofar as applications being made for a 20-year non-parole period in lieu of a 25-year non-parole period I have been told that there were no successful applications.

CRENNAN J: Can I just take you to application book176 and paragraph 3.3 in your argument?

MR ABBOTT: Yes.

CRENNAN J: As I understand it, this was your answer to the argument of the respondent that the legislation, although it targets the respondent, is really to ensure equality of treatment of prisoners before and after the Act.

MR ABBOTT: That was the reason put forward by the Chief Justice at page 113 of the application book. At page 113 his Honour said at paragraph [43] in justification for why this legislation should not be struck down:

although s 19(9) targets the respondent only, the predominant purpose of the 2008 amendment was to ensure equal treatment of offenders sentenced before and after the commencement of the Act - - -

CRENNAN J: If that is right, legislative power to pass this legislation may well exist.

MR ABBOTT: Your Honour, if it is right that may be so, but it is - - -

CRENNAN J: In other words, it would not offend the Kable principle.

MR ABBOTT: In our submission, it is misconceived because it is only those prisoners – all prisoners serving sentences for murder, where the equivalent of a prescribed circumstance of aggravation existed, who had been dealt with under the legislation prior to these amendments had also had the same right as the applicant to have the discretion of the court exercised in their favour. That must be obvious.

The fact that the discretion was not apparently exercised, if it be the case, is, in our submission, beside the point. What this legislation does is to say all those persons who have been dealt with prior to the 2008 amendments, the 2008 amendments now deprives only the applicant of that right because he is the only person in respect of whom a second application can now be made to remove that right. So it is only this applicant who will not receive equal justice when compared with those who have already had their non-parole periods dealt with under the pre-2008 amendments.

The respondent, I must say, acknowledges this in its summary of argument. The respondent says in paragraph 23 of its summary of argument that sections 19(9) and 19(10) do treat the applicant differently, but the respondent argues that these subsections are merely a response to a situation where he alone had been “placed in a better position than like offenders”. In our respectful submission, the applicant was not placed in a better position than like offenders; he was placed in a better position, if it be appropriate to use those terms, because he was unlike the other offenders. So the effect of this amending legislation - - -

HAYNE J: Can I just understand this point a bit better than I do at the moment, Mr Bakewell had made an earlier application. That application had been dealt with. What was the outcome of that first application?

MR ABBOTT: The application had been made initially to Justice Southwood and the application had been refused. The application was then on appeal to the Full Court and the decision of the Full Court is in the respondent’s book of authorities. That application was then allowed and the non-parole period that would otherwise have been 25 years was a 20-year period. The court declined to order a 25-year non-parole period.

HAYNE J: But the position is that when dealt with under the earlier legislation, the outcome at the end of the Court of Appeal’s deliberation was that he had a 20-year non-parole period.

MR ABBOTT: Yes, as any other person.

HAYNE J: In what sense is he placed in a better position than other offenders dealt with under that earlier legislation?

MR ABBOTT: He is not. Those words are the words of the respondent.

HAYNE J: I understand that.

MR ABBOTT: We do not accept he is placed in a better position.

MR HAYNE J: I understand that.

MR ABBOTT: He made an application by way of appeal from the single judge’s determination which was successful. Others may not and probably did not appeal. So when looked at on this basis, in our submission, sections 19(9) and 19(10) are nothing more than a legislative plan designed to inflict a further five years of imprisonment on the applicant. In our submission, the justification for the legitimacy of this legislation is, in our submission, incorrectly stated by his Honour the Chief Justice. His Honour said this at page 112 of the application book. At paragraph [42] he said:

When the practical effect of s 19(9) is expressed in these terms, at first blush it might appear that the institutional integrity of the court will be impaired because, on a second application, the court will not be seen to act as an independent and impartial decision maker. However, upon closer examination it can be seen that the court retains its essential institutional characteristics.

In our respectful submission, the mere fact that the court may retain its essential institutional characteristics is beside the point. The issue is first and foremost the public perception. But if one looks at what his Honour said about the legislation before coming to that conclusion which is on the previous page, his Honour said this at paragraph [39]. Firstly, at the end of paragraph [39], after reciting the background, his Honour said:

Knowing the background and that the existence of a prescribed circumstance of aggravation had been established, in substance the legislature has directed the Director to make a second application.

The Court will be aware that the legislation does assert that a prescribed circumstance of aggravation has been established. It reads:

If, before the commencement of this subsection, an application under this section had been dismissed in a case in which a prescribed circumstance of aggravation was, or could have been, established, a further application may be made –

That is Mr Bakewell’s case. His Honour said, at paragraph [40] - - -

HAYNE J: That is cast permissibly a further application may be made. What is it that obliged the Director to make the second application?

MR ABBOTT: Because that is section 19(6):

The Director of Public Prosecutions:

(a) must make an application under this section in the case of a particular prisoner if of the opinion that one or more prescribed circumstances of aggravation can be established -

His Honour the Chief Justice went on to say at paragraph [40], apropos this legislation:

Secondly, in reality the result of the hearing of the second application has been predetermined because the prescribed circumstance of aggravation accompanying the crime of murder committed by the respondent has already been established on two occasions

His Honour then went on to talk about the trial and concluded by saying:

Next, before the Judge at first instance who revoked the 20 year non-parole period and fixed a non-parole period of 25 years, and before the Court of Criminal Appeal on appeal from that decision, the respondent conceded –

et cetera. So, his Honour then had to deal with why this legislation does not offend the Kable principle. The two reasons he gave was the, with respect, so-called equal treatment of offenders. In our respectful submission, the equal treatment is no more than the bed of Procrustes fitting this particular defendant – this particular applicant – into a situation where the Executive did not want Mr Bakewell to have anything less than 25 years. So this particular aspect of the legislation has been fashioned to target him, and only him, to achieve only that result.

The second reason that was given by the learned Chief Justice was at paragraph [53] on page 118. His Honour said, after dealing with other matters which are not strictly his reasons, but this was his second reason:

Upon the second application, there is no issue of estoppel. Regardless of the forensic difficulties –

We would say these are not forensic difficulties, these are forensic impossibilities –

facing the respondent, there is no legal impediment preventing the respondent from challenging the existence of a prescribed circumstance of aggravation.

CRENNAN J: This is your charade point, is it not, that you are getting to?

MR ABBOTT: Not just the charade point, but also we cite in aid of our argument the case of Rogers where this Court has held that where an attempt to challenge previous decisions of the same court in other proceedings on the criminal side, which this was, constitutes an abuse of process of this Court. What his Honour the Chief Justice is saying, notwithstanding that a prescribed circumstance of aggravation has been found twice by the Supreme Court already, “Mr Bakewell, you can go ahead and try and persuade a new court that there was no prescribed circumstance of aggravation”.

The first answer to that that my learned friend would make is that you cannot, res judicata applies and it would be an abuse of process to allow a third court to effectively proceed to a situation where they were being asked to come to a conclusion, contrary to that which two previous Supreme Courts had come to.

So we say that if the majority are correct in this second reason that both the Chief Justice and Justice Riley gave, it would mean that the applicant would, on their scenario, be able to argue there was no valid finding by Justice Southwell at first instance and no valid finding by the Full Court on appeal in circumstances where there had been a specific decision that, on both occasions, that a prescribed circumstance of aggravation existed.

HAYNE J: What is the relevant prescribed circumstance of aggravation?

MR ABBOTT: The relevant prescribed circumstance of aggravation that is applicable to this applicant is that he was charged with a number of offences, including murder and rape, the rape being committed in the course of the murder. He pleaded guilty to rape and not guilty to murder. He was found guilty of murder. I think the occasion of the finding of guilt being based on the fact that he had committed a felony, namely, a rape during the course - - -

HAYNE J: Maybe, but the prescribed circumstance of aggravation is the commission of the sexual offence, is it not?

MR ABBOTT: Yes.

HAYNE J: To which he pleaded guilty?

MR ABBOTT: Yes.

HAYNE J: In what sense is it open to him to challenge the occurrence of that circumstance of aggravation he having pleaded guilty to it and been convicted of it?

MR ABBOTT: It is not, that is my point.

HAYNE J: Yes.

CRENNAN J: There is a burden on the Director in relation to establishing the existence of the prescribed circumstance of aggravation, but your point, as I understand it, is that on the facts of this case there is nothing to be done.

MR ABBOTT: Exactly, your Honour. We say that in this legislation the legislature has carefully crafted section 19 to call in aid the judiciary to effectively do an executive act, that there was nothing further for the judiciary to do. The prescribed circumstance of aggravation has been found on two previous occasions. Put aside his plea of guilty and everything else at trial, upon the application being made by the Director the matter comes

before the court, the only justification which is set out in the judgments of the majority are that the applicant could still argue that a prescribed circumstance of aggravation existed to which we respond that might be theoretically possible, but in practical terms - - -

HAYNE J: What I am putting to you is that it is not even theoretically possible in face of the plea and conviction, but that is perhaps a point for debate.

MR ABBOTT: I agree, your Honour, not even theoretically possible. So, your Honour, to conclude, it is conceded that subsections (9) and (10) are aimed only at the applicant and a new application, in our submission, such is the subject of this application for leave, removes any judicial role for the Court. The Court, to use the words of the United States Supreme Court in Mistretta, has been borrowed by the Executive to implement the Executive’s plan to punish the applicant by increasing the applicant’s non-parole period from 20 years to 25 years.

To paraphrase what Justice McHugh said in Kable’s Case when he said at CLR 121:

when the Act was passed it must have seemed to many that the risk of that intention being defeated was minimal –

we say that is the position in this case and that demonstrates that in this case the Supreme Court has indeed been borrowed by the Executive. In Kable’s Case the legislation was struck down because the function imposed on the Supreme Court required it to act in a non-judicial way towards one person, Mr Kable. That is exactly what sections 19(9) and 19(10) do in respect to Mr Bakewell, and the effect of that, in our submission, is identical to that said by this Court in Kable; it diminishes public confidence in the integrity of the judiciary. We rely upon what Justice Thomas said in her judgment - - -

HAYNE J: Yes. I think your time has expired. Thank you, Mr Abbott.

MR ABBOTT: Yes, if the Court pleases.

HAYNE J: Yes, Mr Solicitor.

MR GRANT: May it please the Court. Applications made under this legislation both prior to and following the Amendment Act are made by the Director rather than the prisoner. The first application that was made in respect of Mr Bakewell was made by the Director and it was successful before Justice Southwood. He found that there was a prescribed circumstance of aggravation, that matter not being in dispute. It was in fact conceded by the prisoner.

There was a prescribed circumstance of aggravation. There was no discretion in hearing in the court to impose anything other than a 25-year minimum non-parole period where that circumstance was made out and so he granted the Director’s application. The matter then went on appeal to the Court of Criminal Appeal and the court determined that there was a discretion in hearing in the court to not impose a 25-year minimum non-parole period in circumstances where a prescribed circumstance was made out.

Now, all previous application under the legislation had proceeded on the unstated assumption, and we concede that it is unstated, but the assumption that there was no discretion and, indeed, that is an assumption, we say, that is underlying the decision of this Court in the matter of Leach. The manner in which Mr Bakewell came to be in a better position, to use that clumsy phrase, than other prisoners was because every other transitional prisoner serving a life sentence at the time the reform legislation commenced in 2004 and every prisoner sentenced since the commencement of the reform legislation has been liable to a 25-year minimum non-parole period in circumstances where a prescribed circumstance of aggravation has been made out.

HAYNE J: That is contrary to the Court of Criminal Appeal’s decision in Mr Bakewell’s case, is it not?

MR GRANT: It was, your Honour.

HAYNE J: Well, be that right, be it wrong, that was the state of the law.

MR GRANT: I should qualify that concession in one way. It was contrary to the Court of Criminal Appeal’s determination in relation to transitional lifers. The Court of Criminal Appeal found expressly that for persons sentenced under this reform legislation after its commencement in February 2004 there was no discretion where there was a prescribed circumstance of aggravation. A minimum non-parole period of 25 years was mandated. The discretion so far as it was found appertained only to transitional prisoners, that is prisoners who were serving a life sentence at the time of the commencement of the reform legislation.

The context in which this legislation was originally passed, your Honours, the reform legislation in 2004 – passed in 2003 and commencing in February 2004 - is particularly important in this case because in Mr Bakewell’s circumstances he was sentenced in 1988 for the crime of murder to a life sentence for which there was no possibility of parole. In 2003 the Legislative Assembly determined to amend that regime to provide that there would be a 20-year minimum non-parole period for the crime of murder, save in three particular instances: the first where there was a prescribed circumstance of aggravation; the second was where the features of the crime were such that a longer minimum non-parole period was appropriate; and the third was the circumstance where the community interest required that there be no minimum non-parole period set.

The assumption, as I say, from 2004 until the decision of the Court of Criminal Appeal in 2008 was that there was no discretion when one of those circumstances was made out. The Court of Criminal Appeal having found that the objective intention as derived from the text was that there was a discretion, the legislature moved to pass the Amendment Act to make it plain that its subjective intention in relation to this scheme was that there be no discretion in these circumstances.

In context it can be seen that the Amendment Act was a carefully considered legislative response to a general social problem. It was not legislation that was ad hominem in the sense of being intended to have application only to Mr Bakewell, which is why the Full Court in the matter the subject of this application said that the effect of the legislation in its operation generally, and insofar as it had application to Mr Bakewell, was to ensure a quality of treatment for persons serving sentences for the crime of murder in the Northern Territory.

HAYNE J: The case against you, as I understand it, has three elements: one, the legislation is ad hominem; two, the references to equality of treatment are misplaced; three, the suggestion that there is a real issue to be determined by the second court is not apt. Now, that is the case against you. Is there any dispute that the legislation has application and can have application only in relation to Mr Bakewell?

MR GRANT: The Amendment Act generally, your Honour, has application to transitional lifers and there are five of those, other than Mr Bakewell, the occasion for application not having yet arisen because the application is made at the commencement of the 19th year of the sentence.

CRENNAN J: Nevertheless, the legislation is addressed to and for a small class.

MR GRANT: Yes, a very small class, but that of itself does not present any invalidity, your Honours, as this Court observed - - -

HAYNE J: I think it is Elliott and Blessington, is it not?

MR GRANT: No, I do not think it was Blessington.

HAYNE J: The particular provisions which are impugned here are those which relate to second applications. Is there any person who is to be the subject of a second application other than Mr Bakewell?

MR GRANT: There is not, your Honour, and that is conceded.

HAYNE J: Yes.

MR GRANT: But, your Honour, that is not to say that the court does not or cannot have any independent function in relation to Mr Bakewell’s circumstances on a second application.

HAYNE J: What is that independent function that is to be exercised on such an application, do you say?

MR GRANT: It is twofold, your Honours. The first is to find that there is a prescribed circumstance of aggravation. The fact that the court accepted in the context of the previous application that there was does not close off the matter being agitated again by Mr Bakewell in these circumstances for two reasons. The first is the legislation makes it plain that a further application can be made. In those circumstances it must, insofar as there is room for any general law principle – the operation of any general law principle such as issue estoppel, there must be - - -

HAYNE J: It would be res judicata.

MR GRANT: Or res judicata, your Honour.

HAYNE J: The man pleaded guilty and was convicted of rape.

MR GRANT: That, your Honour, goes back to a different issue. That goes back to the original finding by the court in 1988 and the position that appertains there is that the jury’s finding or verdict in relation to murder was inscrutable. My friend suggests that the basis of the verdict was a felony murder, but as his Honour the trial judge observed during sentencing, that is not apparent from the jury’s verdict.

So far as the conviction of unlawful carnal knowledge is concerned, the only matters arising from that conviction that form part of the doctrine of res judicata are that there was unlawful carnal knowledge in that it was without consent. Your Honours, that is a very different issue to the legal standard that arises under 19(3)(b) of the Amendment Act which it falls to the court to determine. If I can take your Honours to the text which appears at item 1 page 10 of our index of materials. What 19(3)(b) requires the court to find is that:

the act or omission that caused the victim’s death was part of a course of conduct by the prisoner that included conduct, either before or after the victim’s death, that would have constituted a sexual offence against the victim –

The guilty plea for unlawful carnal knowledge and the conviction for murder do not of themselves satisfy that particular requirement. There are elements there that fall to be determined by the court and a number of findings that must be made by the court that are quite additional to the convictions for rape and murder back in 1988. So, whether that legal standard is satisfied, is not answered by simply pointing at the original conviction.

The second point to be made in relation to this notion of res judicata is that the cases to which my friend refers your Honours, the additional cases dealing with these principles, describe a principle that is limited to circumstances where the prosecution asserts in later proceedings that a person who has committed a crime of which they were previously acquitted, and, of course, that is not the situation in the subject case.

As we have submitted, the fact that the legislature has provided for a further application to be made opens it up to Mr Bakewell to seek to re-ventilate the issue to determine whether that legal standard in 19(3)(b) has been satisfied. The mere fact that Mr Bakewell has chosen previously not to agitate that issue does not mean he is deprived of the opportunity. The reality is that in these circumstances, in forensic terms, the applicant falls squarely within the factum specified by the legislature as triggering the making of the order for a minimum non-parole period of 25 years.

That that is the position in these circumstances does not undermine the institutional integrity of the court when it comes to making the determination as to whether the legal standard has been met. The complaint that the applicant makes, when it is stripped back, would apply equally to all persons dealt with under the new sentencing legislation who have been convicted of both rape and murder. It might be argued that there is no room for them to argue that they do not fall within the legal standard encompassed in 19(3)(b) but, of course, there is because the formulation there, as we have submitted, is not answered by simply pointing to a conviction for rape and murder.

So if one follows the applicant’s argument to its logical conclusion, it is not just 19(9) and 19(10) that would be invalid but the entire scheme, not only so far as it applies to transitional lifers but also so far as it applies to persons convicted of the crime of murder after the reform legislation commenced in 2004.

The second point at which the court exercises a discretion under this legislation is in determining whether or not the features of the crime are such that 19(4) or 19(5) are enlivened. If your Honours read subsections 19(7) and 19(8), your Honours will see that, regardless whether or not a prescribed circumstance of aggravation is made out, it is still incumbent on the court to go further and determine whether or not either of those provisions has been satisfied and whether in its qualitative assessment the court is required to act pursuant to one or other of those provisions. Of course, that is the thrust of this Court’s decision in Leach, that once an application was made, it fell to the court to determine not only the 19(3) question but also the 19(4) and 19(5) questions.

So that is the second stage at which, under this legislation, both before and after the commencement of the Amendment Act that the court has an obligation to consider whether a particular legal standard has been met in accordance with the ordinary processes of a court in which evidence is led, the prosecution bears an onus, the standard is beyond reasonable doubt and there is room for an appeal, all of those features of the judicial process that were identified by this Court in Fardon. Your Honours, it is incorrect, in our submission, that there is nothing for the court to determine in the exercise of the independent judicial function.

So far as Fardon and Kable are concerned, your Honours, the features apparent in that legislation stand in very clear contradistinction to this legislation. Those two cases dealt with the issue of preventative detention where an order was made for detention based on propensity rather than any anterior finding of criminal guilt. Here the legislation deals with an adjustment or an amendment or a tinkering to the sentencing process in relation to an anterior finding of guilt. It is not in any sense extending or increasing the burden of the original sentence and that, of course, is one of the principal limbs of the applicant’s argument, that the court is being drawn into a process in which the burden upon the applicant is being increased.

Your Honours, if I could refer you to the decision of this Court in Baker, and particularly at paragraph 29 where that issue was addressed. Baker appears at item 3 of the booklet of materials, your Honours, and it is particularly paragraph 29 to which I want to draw your Honours’ attention. Your Honours will see that in the joint judgment a statement which is directly at odds with the applicant’s contention that the legislation would involve the court in the affliction of additional punishment.

Your Honours, so far as the applicant contends that this legislation is ad hominem in nature, subsections (9) and (10) can only have application to the respondent’s circumstances but it cannot be said that the respondent is the sole and direct target of the Amendment Act in the same way as the Kable legislation operated. Rather, the legislation operates in much the same way as that adverted to by the plurality reasons in Baker again at paragraph 50.

If I can take your Honours’ to paragraph 50 where the members of the Court observed that where there is a small class of persons who will be subject to the amending legislation, there will be no necessary invalidity. Of course, your Honours, this legislation operates in respect of a small class of transitional lifers being five in number who will now all be deprived, on my friend’s thesis, of the opportunity to argue that the court does have a discretion not to impose a 25-year minimum non-parole period. The reference in Baker to Nicholas simply picks up that same point; the mere fact that legislation operates in relation to a very narrow class is not sufficient to render it invalid.

The general effect of the Amendment Act is to subject transitional lifers including the respondent to substantially the same regime as those sentenced after the commencement of the sentencing reform legislation. It is to bring Mr Bakewell into a general class of offenders for some assessment as to whether his offending was attended by a prescribed circumstance of aggravation so he is dealt with in the same way as the others. It is in that sense that the Full Court found that this legislation achieved a quality of justice rather than singling out Mr Bakewell for some special treatment.

In our submission, your Honours, ad hominem legislation will only be invalid if it prejudges the conduct of a particular individual and requires the court to exercise its function accordingly, which this legislation does not, or if it purports to legislate the detention of a particular person without a judicial finding of guilt, which was the vice in Kable that led to the determination in that matter.

So, if it please your Honours, we say that for these purposes there are three elements essential to the constitutional conception of a court. The first is independence, and it cannot be said that the operation of this legislation undermines the court’s independence from the political Executive in any relevant sense. The second is impartiality and it cannot be said that this legislation impairs the court’s impartiality as between the parties to the dispute. It still falls to the court to determine whether the legal standings created by sections 19(3), (4) and (5) are satisfied in the circumstances, including in relation to the application brought in respect of Mr Bakewell.

The third necessary feature is that the court adopt a reasoned process, and it cannot be said that this legislation requires the court to exercise the

judicial power by reference to any sort of arbitrary process. If it please the Court, they are the submissions.

HAYNE J: Thank you, Mr Solicitor. Yes, Mr Abbott.

MR ABBOTT: In our submission, what was said by Justice Thomas is cogent and relevant. Her Honour, at page 138 of the application book, at paragraph [93], said:

It seems to me to be artificial in the extreme to say that a judge could now entertain an argument that there were no aggravating circumstances as defined - - -

HAYNE J: Assume that to be so for the purpose of argument, is not the court given a task under 19(7) of deciding whether to fix and, if so, how long non parole should be fixed, so long as it is not less than 25?

MR ABBOTT: No, your Honour, because we say there is no reasoned process – to use the third of the elements that my learned friend referred to. There can be no reasoned process because there have been two decisions of the Supreme Court already that prescribed circumstances of aggravation exist. My learned friend’s argument concedes that the only possible work for the court to do would be to find the existence of prescribed circumstances of aggravation, something that the section 19(9) assumes on behalf of Mr Bakewell and Mr Bakewell alone.

In our submission, there is absolutely no reasoned process by which the court can hereafter proceed because, as your Honour has observed, res judicata applies not only to the decision of the judge at the criminal trial, but also in relation to the decision of the judge at first instance in the Supreme Court and in the Court of Criminal Appeal, where the Chief Justice said that he had considered the matter afresh.

I take the Court to tab 14 of the book of authorities, the decision of the Court of Criminal Appeal, paragraph [29]. In view of the time constraints I will not refer the Court to anything else other than paragraph [29] on page 15. His Honour said:

Having considered the matter afresh, I agree with the conclusion reached by his Honour.

That must mean that he had considered, first of all, that prescribed circumstances of aggravation existed but non constat that finding decided to exercise the court’s discretion. In our submission, there is no work for a court to do in relation to the application now being brought by the Director which forms the subject of this leave. If the Court pleases.

HAYNE J: Thank you, Mr Abbott. The Court will adjourn to consider the course it will take in this matter.

AT 10.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.20 AM:

HAYNE J: There will be a grant of special leave in this matter. Would counsel agree that it appears to be a day case?

MR ABBOTT: Yes.

MR GRANT: Yes, your Honour.

HAYNE J: It would not last longer than a day I think, would it?

MR ABBOTT: No.

HAYNE J: Very well, there will be a grant of leave in this matter and the Court will adjourn to reconstitute.

AT 10.21 AM THE MATTER WAS CONCLUDED