Abdulla v The Queen [2010] HCATrans 225 (3 September 2010)

Last Updated: 7 September 2010

[2010] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A8 of 2010

B e t w e e n -

GILBERT WILLIAM VINCENT ABDULLA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 3 SEPTEMBER 2010, AT 9.29 AM

Copyright in the High Court of Australia

MR G.P.G. MEAD: If the Court pleases, I appear with MS R.A. GRISTWOOD for the applicant. (instructed by Legal Services Commission of SA)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear with MS C.M. MEALOR for the respondent. (instructed by Director of Public Prosecutions (SA))

CRENNAN J: Thank you.

MR MEAD: If the Court pleases, it is our submission that if the prosecution contends that the court should sentence the applicant against a maximum sentence of life imprisonment, then it is incumbent on the prosecution to prove to the court beyond reasonable doubt that the applicant is a person to whom that maximum sentence applies. The alternative possibility on the facts in this case is that the applicant was a person to whom a very different sentencing regime applied than if he was an adult. There was a reasonable possibility on the evidence that when the alleged offence was committed, the applicant was a youth and therefore one sentencing option available involved a maximum penalty of three years detention as opposed to a maximum of life imprisonment.

BELL J: I think it remains that the maximum penalty for the offence with which the applicant was charged was life imprisonment. Were the offence one committed when he was a young person, it was open that he might have been dealt with in the Youth Court with the consequence of a limited range of penalties, but it does seem to me it is important for the purposes of this submission to understand that the maximum penalty did not differ. The question goes to jurisdiction, does it not, and that is the way that the court approached it?

MR MEAD: It does go to jurisdiction, your Honour, and I accept, of course, that the maximum penalty for rape in either jurisdiction is a maximum penalty of life imprisonment, but if the applicant was found to be within the jurisdiction of the Youth Court, that is, we say if there was a reasonable possibility that he was under 18, then there was, as your Honour points out, a much wider range of sentencing options available ranging from the court deciding to deal with him and sentence him as an adult down through to the option of sending him to the Youth Court to be dealt with in the Youth Court.

CRENNAN J: I think this is dealt with, is it not – you can pick it up at application book 45 – by Justice Bleby at paragraph 37 where his Honour sets out the various options that are available, particularly when a person who might come under the Young Offenders Act was facing an indictable offence.

MR MEAD: Yes, your Honour.

CRENNAN J: In other words, the DPP, under the Young Offenders Act, has a power to have the matter tried otherwise that in a Youth Court.

MR MEAD: Yes, that is indeed the case.

CRENNAN J: Insofar as you have suggested the Crown needs to meet the point, I think that has been done in the argument at application book 105, paragraphs 27 and 28.

MR MEAD: Yes. There is no doubt that that is – the criteria depend upon whether the youth is tried in the Youth Court or the District Court in the sense that the District Court, in certain circumstances, has the power to deal with the youth as a youth even though he is being tried in the District Court, if one of the provisions is used to bring the youth up to the District Court, but the fact remains, if the Court pleases, that if he is a youth, if he is under 18, then whichever court he is tried in, the court has available to it a much wider range of sentencing options that if he is simply tried and found guilty as an adult.

BELL J: You appear to accept in your submissions that the issue of jurisdiction correctly is one to be decided on the balance, is that so?

MR MEAD: In a Thompson type situation where it is a question merely of locality and there is the possible mischief of an offender escaping either of the jurisdictions because it cannot be proved beyond reasonable doubt in which jurisdiction the matter occurred, I accept that in that case that the balance of probabilities is sufficient.

BELL J: Why, as a matter of principle, does it differ when the jurisdictional issue goes to a question such as this one, that is, why, as a matter of principle, is the question of jurisdiction as opposed to proof of guilt one that requires proof on the criminal standard and why does not the same mischief that Justice Bleby identified in his judgment apply if proof is required on the criminal standard of the jurisdictional question?

MR MEAD: Could I answer that question, your Honour, by referring to what the joint judgment in Thompson’s Case [1989] HCA 30; (1989) 169 CLR 1 said at page 12. That case is under tab 2 of the respondent’s case book. In the third paragraph on that page - - -

BELL J: I am sorry, can you just give me the page number again, I am sorry.

MR MEAD: The page number is 12, your Honour.

BELL J: Page 12, thank you.

MR MEAD: The paragraph is starting “The fundamental principle of our criminal law” and the next sentence starting:

The law requires that standard of proof of the commission of a criminal offence in order to eliminate or minimize the chance that an innocent person might be found guilty with all the grave consequences that such an erroneous condemnation would have for the accused, for our system of justice and for the community generally.

My submission is because the court there refers to the grave consequences that occur because of a conviction, the court looks at that in determining what should be the standard of proof and that is why we have such a high criminal standard of poof in relation to questions of guilt or innocence, partly because of the grave consequences that flow to an accused on a finding of guilt. While we are on Thompson’s Case, if your Honour pleases, I would draw the Court’s attention to what Justice Brennan, as he then was, said at page - - -

BELL J: Just before we go to Justice Brennan, can we go to the joint reasons of the Chief Justice and Justice Dawson at page 13 where the first full paragraph on the page beginning “Notwithstanding differences in statute law” and their Honours refer to “including differences in penalties” and they then go on to talk of the mutual interest between States and Territories where it is proved more likely than not that an offence was committed in a given State or Territory that it will be prosecuted. That is really the matter that I am raising with you, the reason that informs, as a matter of principle, why jurisdiction is not determined on the criminal standard.

CRENNAN J: Justice Gaudron picks up this issue at page 39 of Thompson v R at about point 4 of the page where her Honour says:

The issue of jurisdiction is thus a discrete issue and distinct from the issue of guilt which depends upon the elements of the offence charged being made out.

MR MEAD: Yes, I accept that, if your Honour pleases, but her Honour does point out that if the locality of the offence was an essential element of the offence, such as a case of an act occurring in a public place, then proof of locality, for example, would become a material particular in the charge.

BELL J: That, with respect, is uncontroversial and that is because it is an element of the offence. As I understand it, the date was not, in the way this trial was conducted, a material particular. There is no suggestion of alibi or something of that character that would have made it material. The thing that made it material, on the view that Justice Gray took, was the jurisdictional issue; nothing to do with the conduct of the issues on the trial itself. Is that fair?

MR MEAD: Yes, I think that is fair, your Honour, but I would say that it did become material because of the consequences that flowed from the timing as to whether he was an adult or a youth at the time. I was going to take your Honours to what Justice Brennan said, as his Honour then was, at page 30 of Thompson’s Case. If the Court pleases, I will just read the sentence that starts about four lines down from the top of page 30 after his Honour says that the standard of proof in relation to locality “is generally proof on the balance of probabilities”. He says:

There is an exception. If the conduct charged is an offence on one side of the border but not on the other or, in one forum, exposes the offender to punishment of a higher order than in another, locality is a fact on which liability to punishment depends. In such a case, the Woolmington rule must apply in all its protective rigour.

Justice Deane did not agree - - -

CRENNAN J: That was a minority view.

MR MEAD: Both Justice Deane and Justice Brennan agreed in the ultimate result in Thompson’s Case and it is true that the question of penalty did not arise in that case because in Thompson’s Case it was life imprisonment on both sides of the border, but both Judges specifically deal with that question and both came to the conclusion, although perhaps Justice Deane not as forcefully as Justice Brennan, but, clearly, having turned their minds to that issue, both of those Judges thought that it was appropriate that there be proof beyond reasonable doubt where there was an issue of penalty that might be different as between the two jurisdictions.

In our submission, the joint judgment only really deals obliquely with the situation where there are penalty differences. As your Honours pointed out in the previous paragraph on page 13, their Honours are really concerned there to avoid the situation that the majority in the Court of Criminal Appeal was wanting to avoid and that is that situation of the case falling into a jurisdictional vacuum. What I submit is that we do not have that problem here. We do not have a situation where, if it cannot be proved that it was a Youth Court matter, then it might go to the District Court and it might not be proved beyond reasonable doubt that it was a District Court matter, so therefore neither court has jurisdiction.

In this situation there is a statutory mechanism that provides for the District Court to have jurisdiction over a youth. So it is simply a matter of the court deciding, if the jury came to the conclusion beyond reasonable doubt that he was not an adult, the court would say, all right, there is a reasonable possibility that he is a youth, therefore we exercise the powers under section 29 to either sentence him as an adult or sentence him as a youth or remit the matter back to the Youth Court for sentence. It is not a situation, as in Thompson, where you might have the offender completely avoiding the consequences of his action.

BELL J: The difficulty with that is that the issue is one of jurisdiction. True enough it is that provision is made for the District or Supreme Court to deal with persons who are youths, but that requires procedural mechanisms that had not occurred in this case. It seems to me difficult to ignore the jurisdictional issue, which as I see it on some aspects of your submissions you seek to do, effectively by saying, well, the jury should have been asked as a special question were they satisfied beyond reasonable doubt that the applicant was over 18. In the event that they were not so satisfied, the District Court might still have taken the verdict of the jury, notwithstanding that issue being left in that somewhat unsatisfactory state, and the judge taken it into account on the question of sentence.

That seems to me to confuse a number of issues, including that questions of sentence are a matter for the judge, that is, the judge sentences consistently with the jury’s verdict but upon a view of the facts that the judge takes. That is one issue. But the essential characterisation of the question here was surely one of jurisdiction? So that I am not sure that your solution solves the problem if the standard is, as you submit, proof beyond reasonable doubt, then it might be that in neither the District Court nor the Youth Court could that matter be resolved to that standard, and it is a matter that goes only to jurisdiction.

MR MEAD: I can only rely on the authorities such as Justice Brennan and Justice Deane to say that when there is a difference in penalty, then the question of which jurisdiction the matter falls into becomes a matter where the higher standard of proof should apply and it is simply not sufficient, in our submission, that the civil standard apply in that situation. As I have said, the concern of the majority in the joint judgment in Thompson and the majority in the Court of Criminal Appeal was to avoid that situation of not knowing where the case was going to fall. The Thompson joint judgment did not really deal with the question of penalty.

If the Court pleases, I do emphasise the stark differences, as Justice Gray described them, between the sentencing of a youth for this particular crime and the sentencing of an adult; indeed, the sentencing differences in respect of any crime; in this case, of course, a maximum of life imprisonment, in the case of a youth, still life imprisonment but the options available to the court of sentencing to detention, to a maximum of three years detention, the emphasis in the Young Offenders Act to care, correction and guidance, all of the things that the policy of the Young Offenders Act.

In our submission, fairness and justice, as Justice Gray put it, in this particular case requires that the court be as certain as the criminal standard of proof can make it that the offender is an adult before sentencing him as such. These differences require in fairness and justice to young offenders generally, and to this potential young offender in particular, that the prosecution should have to prove beyond reasonable doubt that he has moved from the jurisdiction of the Youth Court to the adult courts and to that significantly different sentencing regime that applies to adult offenders. If your Honour pleases, those are my submissions.

CRENNAN J: Thank you, Mr Mead. Yes, Mr Hinton.

MR HINTON: If the Court pleases, in the respondent’s submission the issue raised by the sole ground of appeal, as identified in the particulars at application book 93, has been resolved by this Court in Thompson v R. My learned friend relies upon the minority opinions of Justices Deane and Brennan. To that extent, he invites your Honours to reopen Thompson without providing anything in the way of a submission as to why it is manifestly wrong or, arguably, manifestly wrong such that this Court should consider reconsidering one of its own judgments.

BELL J: The matter that I think he raises is, on his argument, the question was not acutely posed in Thompson because either side of the boundary the same penalty was applicable, whereas he says in a practical sense there were differences here.

MR HINTON: If your Honour pleases. It was acutely raised because the very question in Thompson was how to resolve this problem and there was no authority to guide their Honours so they had to return to fundamental principle and policy. Your Honour Justice Bell has already referred to that crucial paragraph in the judgment of the Chief Justice and Justice Dawson at page 13. In my submission, that is not an oblique reference. It says:

Notwithstanding differences in statute law in the various States and Territories (including differences as to penalties) –

That is a direct reference to the point that my learned friend makes now, to the point that occupied or was the result of difference, in the judgements of Justices Brennan and Deane. Indeed, when Justice Gaudron joins in the joint reasons, in my submission, she also joins in the conclusion there reached. The policy that drove their Honours, the Chief Justice, Justice Dawson and Justice Gaudron to decide that it was the balance of probabilities was as is contained in that paragraph at page 13. It was driven by the possibility of a lacuna arising where you could prove the elements beyond reasonable doubt but not in a federation, but not locality beyond reasonable jurisdiction, as your Honour Justice Bell has said.

In my submission, Thompson has answered this case. You cannot distinguish between age as the factum that gives rise to jurisdiction and locality. The question is, what is the standard of proof of jurisdiction, and that is dealt with. There is no reason to think, in my submission, that the majority reasons in Thompson are manifestly wrong and, as I recall, in Wurridjal’s Case it is matter of this Court being satisfied that a previous judgment of its own is manifestly wrong before it will sit to reconsider it, and that is not this case. If the Court pleases, those are the respondent’s submissions.

CRENNAN J: Thank you, Mr Hinton. Anything in reply, Mr Mead?

MR MEAD: No thank you, your Honour.

CRENNAN J: Thank you.

The applicant was convicted in the District Court of South Australia after a trial by jury on one count of rape, contrary to section 48 of the Criminal Law Consolidation Act 1935 (SA). During the trial evidence was adduced that the applicant may have been below the age of 18 at the time when the offence was committed. The trial judge directed the jury to determine the age of the applicant at the time of the alleged offence on the balance of probabilities. A majority of the Court of Criminal Appeal of the Supreme Court of South Australia (Bleby and Anderson JJ, Gray J dissenting) dismissed an appeal by the applicant against his conviction and determined that the age of the applicant at the time of the alleged offence went to the jurisdiction of the court to hear the matter and was to be determined on the balance of probabilities. That determination was consistent with Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1.

The application does not give rise to a question suitable to a grant of special leave and the interests of justice do not require such a grant. Special leave to appeal is refused.

The Court will adjourn to reconstitute.

AT 9.54 AM THE MATTER WAS CONCLUDED