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High Court of Australia Transcripts |
Last Updated: 7 December 2011
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M127 of 2011
B e t w e e n -
KIEU THI BUI
Appellant
and
DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
KIEFEL
J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 7 DECEMBER 2011, AT 10.16 AM
Copyright in the High Court of Australia
MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friend, MR G.F. MEREDITH, for the appellant. (instructed by Greg Thomas, Barrister & Solicitor)
MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR D.D. GURVICH, for the respondent. (instructed by Director of Public Prosecutions (Cth))
MR S.G.E. McLEISH, SC, Solicitor-General for the State of Victoria: If it please the Court, I appear with my learned friend, MS R.J. ORR, for the Attorney-General for Victoria intervening. (instructed by Victorian Government Solicitor)
FRENCH CJ: Yes, Mr Tehan.
MR TEHAN: Thank you, your Honour. Your Honours, the issue in this case is whether provisions of a State legislature abolishing consideration of the Commonwealth principle of double jeopardy in sentencing on a Crown appeal in a federal case are picked up by any provision of the Judiciary Act. The State provisions which are said to be picked up are contained within the Criminal Procedure Act 2009 (Vic). They came into operation on 1 January 2010 and applied to the appellant because she was sentenced after that date, on 30 April 2010. Could we take the Court to those provisions. Section 287 of the Criminal Procedure Act gives the Director of Public Prosecutions power to appeal to the Court of Appeal against a sentence if the DPP:
(a) considers that there is an error in the sentence imposed and that a different sentence should be imposed; and
(b) is satisfied that an appeal should be brought in the public interest.
Section 289 provides that:
the Court of Appeal must allow the appeal if the DPP satisfies the Court that –
(a) there is an error in the sentence first imposed; and
(b) a different sentence should be imposed.
(2) In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.
Section 290 deals with the stage of making orders on a successful appeal by the DPP. Section 290(1) provides that:
If the Court of Appeal allows an appeal under section 287, it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate.
Section 290(3) provides that:
In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.
So it is that these provisions, your Honours, remove consideration of the element of double jeopardy in sentencing on a Crown appeal at each of the three stages of the appellate process; that is to say, at the first stage of identifying error, next at the second stage of deciding whether a different sentence should be passed and then at the third stage of fixing the new sentence. There is a legislative guide to the Criminal Procedure Act. Could we take the Court to the relevant part dealing with these provisions. It commences at page 266 and on the right-hand side at the bottom of that page under the heading “Sentencing Double Jeopardy” there is stated:
The Court of Appeal in Victoria has regularly declined to increase sentences on a DPP appeal even if the court held that the sentence is manifestly inadequate.
FRENCH CJ: This is a publication put out by the Department of Justice?
MR TEHAN: It is, your Honour. It is an extrinsic material that would be - - -
FRENCH CJ: When you say “extrinsic material”, it did not precede the enactment of this Act, did it?
MR TEHAN: No, it accompanied it, your Honour:
The basis for that non-interference was what is described as the ‘double jeopardy’ that the offender faced - - -
FRENCH CJ: Sorry, can I understand, was this put before the Parliament at the time the amendments were put in? Is this post-dating the enactment - - -
MR TEHAN: It is post-dating the enactment.
FRENCH CJ: So it is just the views of people within the Department of Justice?
MR TEHAN: I suppose it is, ultimately.
FRENCH CJ: I am sorry?
MR TEHAN: It was released at the time the Act came into operation.
FRENCH CJ: What are you relying on it for?
MR TEHAN: Your Honour, it just better explains the intent of Parliament.
FRENCH CJ: It cannot explain the intent of Parliament, can it?
HAYNE J: It is in the nature of a press release by the Department at the time of the legislation, is it not?
MR TEHAN: I do not need to refer to it. There are similar provisions to those enacted in Victoria which have been enacted in New South Wales, Western Australia, Tasmania, the Northern Territory and also South Australia.
FRENCH CJ: It all comes out of a COAG agreement, I think.
MR TEHAN: Yes, it does. In Victoria the provisions were considered by a five-member Bench of the Court of Appeal in DPP v Karazisis which was applied by the Court of Appeal in the present case at appeal book 153 to 156.
GUMMOW J: This is [2010] VSCA 350; 206 A Crim R 14?
MR TEHAN: Yes, thank you, your Honour. It decided that double jeopardy sentencing was removed at each of the three stages of the appellate process that we have identified. The court further decided that there remained a discretion to refuse to intervene on a Crown appeal apart from considerations of double jeopardy. The majority of the court, Justices Ashley, Redlich and Weinberg, decided that double jeopardy considerations remain in force in informing the DPP as to whether to bring an appeal in the public interest. So that is the background.
Can we now move to the substance of the argument. The provisions to which we have referred can have no operation to the sentencing of federal offenders of their own volition; they can only have operation by reason of a federal law which picks up a State law. By sections 68(1) and section 79(1) of the Judiciary Act some State laws may be picked up. We turn first to section 68(1). It relevantly provides:
The laws of a State or Territory respecting . . . the procedure for:
. . .
(d) the hearing and determination of appeals arising out of any such trial and conviction . . .
shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
Section 68(2) gives State courts like appellate jurisdiction in respect of Commonwealth offences. In our submission, the principle of double jeopardy sentencing is not a law of procedure; it is a matter of substantive law. Recently in Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573 at 582 at paragraph 17 this Court emphasised that:
The treatment of Crown appeals against sentence as “exceptional” indicated a judicial concern that criminal statutes should not be construed so as to facilitate the erosion of common law protection against double jeopardy. This was reflective of a wider resistance to the construction of statutes, absent clear language, so as to infringe upon fundamental common law principles, rights and freedoms.
The Court then went on to refer to this Court’s decision in Byrnes v The Queen in paragraph 18. At paragraph 19 on page 583 at about point 5 on the page the Court cited with approval the rejection in Byrnes v The Queen of the notion “as understood in United States constitutional jurisprudence” of double jeopardy sentencing as “procedural due process”. In our submission, the principle of double jeopardy in sentencing is more than a law of sentencing procedure.
As Justices Deane and McHugh observed in Malvaso v The Queen, subjecting an offender to a Crown appeal, and this is cited, I think, in paragraph 19 of Lacey:
represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy.
In Putland v The Queen this Court held that section 68(1) picked up section 52(1) of the Sentencing Act (NT) – Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174. It held that section 68(1) picked up a provision of the Sentencing Act (NT) in relation to the imposition of an aggregate term of imprisonment. However, in our submission, there is a real difference between a law allowing for the imposition of imprisonment by way of an aggregate term, which can properly be described as a procedural law, and principles concerning double jeopardy sentencing, which can properly be described as substantive law.
GUMMOW J: What you are doing is construing the word “procedure” in the opening words of 68(1) of the Judiciary Act.
MR TEHAN: Yes, and our submission is that 68(1) has no application. However, we recognise, your Honours, that if section 68(1) does not pick up these laws concerning sentencing, then section 79 would otherwise do, subject to the operation of its terms, and we further recognise that section 79 operates beyond practice and procedure and picks up substantive law.
FRENCH CJ: If the double jeopardy principle, whatever its content might be, in application to Crown appeals, is in truth a rule of statutory interpretation if you like, which confines or qualifies the powers conferred upon the court in respect of such appeals, does section 289(2) of the Criminal Procedure Act operate in any other way than to simply, as it were, take out the application of that rule of interpretation or that approach to interpretation so that when you interpret the powers they do not involve concern for any element of double jeopardy?
MR TEHAN: That is right, your Honour.
FRENCH CJ: So in that sense it is – I just want to get - - -
MR TEHAN: Yes.
FRENCH CJ: In that sense, this law is not changing the common law. It is rather changing the operation of the statute as previously interpreted by reference to common law principles?
MR TEHAN: Well, there is no statute, or at least not in Victoria, that says double jeopardy shall apply to all Crown appeals.
FRENCH CJ: No.
MR TEHAN: There are common law principles relating to double jeopardy sentencing which have been developed by the courts and what this statute - - -
FRENCH CJ: But the only basis upon which an appeal can be entertained is by reference to statute.
MR TEHAN: Yes.
FRENCH CJ: And the powers of a court of appeal on an appeal against sentence or against conviction are to be found entirely in the statute.
MR TEHAN: Clearly, yes.
FRENCH CJ: The question whether considerations of double jeopardy are relevant or mandatory relevant considerations in the exercise of powers by a court of appeal in relation to a Crown appeal is a matter of statutory interpretation, is it not, albeit informed by the common law?
MR TEHAN: Yes, and that is what we are dealing with here. What the Criminal Procedure Act does is effectively take out of the appellate process on a Crown appeal against sentence any consideration of double jeopardy.
KIEFEL J: Can we just focus for a moment on what the content of any element of double jeopardy is in relation to a Crown appeal instead of just – I know you are using it in a shorthand way, but what does it actually mean?
MR TEHAN: I am going to come to that, I should say, but - - -
KIEFEL J: I would have thought it was something of a threshold question if we are going to understand the statute.
MR TEHAN: Yes, and I am going to come to that, but I am presently just dealing with the sections, and I will come to it, but our position is that the element of double jeopardy is the notion of anxiety and distress which accompanies the standing for sentence twice.
FRENCH CJ: Actual or presumed?
MR TEHAN: Presumed.
KIEFEL J: Is there a question then in relation to its application with respect to the questions first raised by section 289(1) about what it means in relation to a determination that there may be an error in the sentence first imposed because, so understood, it cannot apply to how the sentencing judge has sentenced a person?
MR TEHAN: It cannot apply – yes. No, I understand that concept.
KIEFEL J: So what does it really mean, at least in relation to error? It might be different when you are coming to re-sentencing, but in relation to the first part I would have thought that – perhaps you would like to come back to that when you are discussing this, but it seems to me to be a question about what it really means.
MR TEHAN: Yes, I understand what your Honour says, that presumed anxiety and distress – presumed anxiety and distress arises out of the reality of a person being put up for sentence again and that - - -
KIEFEL J: Yes, but it has not happened at the time of their sentencing.
MR TEHAN: No, true.
KIEFEL J: So what does it say about consideration of error when it comes to the Court of Appeal?
MR TEHAN: What it says about it is that double jeopardy is taken out of the issue of considering error - - -
KIEFEL J: But how could it have been an error?
MR TEHAN: It is an identifiable error at the stage of the Director standing before the Court of Appeal and saying there is the error in the sentence imposed and in the months that have passed - - -
KIEFEL J: No, I just wonder if it is really talking about something other than error, though, because there cannot have been any question about double jeopardy in the error. So what is it actually saying to the Court of Appeal? When you are approaching the question of whether the sentence was manifestly inadequate and you are determining that question whether there is an error, you are to approach the question of error in what way?
MR TEHAN: It is the three stages; the identification of error, first stage, no double jeopardy at all. Query, as your Honour said, whether double jeopardy might have had any application. It would at common law, but if the definition be presumed anxiety and distress – and we will come back to this – query whether it might have had any application. The second stage is identification. If error is established, should a different sentence be passed, and the third stage is, what should that sentence be?
GUMMOW J: Are you saying 289(2) is linked to 289(1)(b)?
MR TEHAN: It is, your Honour, yes.
GUMMOW J: And they are asking themselves whether a different sentence should be imposed.
MR TEHAN: Yes, and it removes the element of double jeopardy at both the re-sentencing stage and at the identification of error stage.
GUMMOW J: So that they are not to be inhibited in deciding whether to impose a different sentence by what is said to be an element of double jeopardy? It would then - - -
MR TEHAN: Exactly, your Honour, yes.
FRENCH CJ: So is the so-called residual discretion embedded in the word “should” in 289(1)(b)? That is about the only place where there is room for it.
MR TEHAN: No. Section 289(1)(b) says nothing about the residual discretion. The residual discretion that is referred to in cases such as De La Rosa in New South Wales, in Karazisis in Victoria is a discretion which arises apart from double jeopardy considerations. It may involve issues such as – the Crown mislead the judge in the court below.
GUMMOW J: You are saying that is left intact.
MR TEHAN: That is left intact but it is - - -
GUMMOW J: By 289(1)(b)?
MR TEHAN: Section 289(1)(b) says nothing about it. The residual discretion now has nothing to do with double jeopardy at all.
FRENCH CJ: Where is the room for it elsewhere? The Court of Appeal must allow the appeal if the DPP satisfies it of (a) and (b), query the scope of the word “should” and if the Court of Appeal allows an appeal - that is 291, under 287 it must set aside the sentence imposed, et cetera. Where else is there room for a discretion not to interfere, notwithstanding error, apart from in the word “should” be imposed?
MR TEHAN: The Court of Appeal in Victoria has taken the view and, indeed, the Court of Appeal in New South Wales also has taken the view that there may be matters that arise on a Crown appeal which in considering whether to resentence or to allow the appeal – I mean, I suppose they might arise on any appeal – things - - -
FRENCH CJ: I am just really asking you to look at the words of the statute there and tell me where it - - -
MR TEHAN: Yes, I know, but things like delay, for example, it would arise on an appeal by an accused person. It would equally arise on a Crown appeal. It has a particular sting to it in Crown appeals, the issue of delay. The issue of what did the Crown do in the court below?
BELL J: Let us assume in the court below the Crown made a concession respecting the appropriate sentence and takes a different stance on the appeal, that might be a matter which would lead to a conclusion that a different sentence should not be imposed. So, I think all that is being put to you is the discretions in 289(1)(b), is it not, in the determination of whether or not a different sentence should be imposed?
MR TEHAN: Is still contained within it, yes, yes. I do not know that it has been interpreted that way but I see the force of that view that it is contained within the words “should be imposed”. Now, can we - - -
GUMMOW J: So you have left section 68.
MR TEHAN: That is section 68 – that is our argument on section 68 that we are dealing here with substantive law, we are not dealing with procedural law.
GUMMOW J: It depends what the word “procedure” means in 68.
MR TEHAN: The case that came readily to mind was Putland, the aggregate sentencing but our submission is that that is procedural, in any event, so in one sense it does not help.
GUMMOW J: It does not necessarily follow that 68(1), in using the word “procedure” to link up (a), (b), (c) and (d) which might involve what one might have thought was substance, that the word “procedure” in 68(1) assumes and carries over the dichotomy found elsewhere in the law between procedure and substance. That is your problem, I think.
MR TEHAN: Well, maybe. It seemed to us that we ought to deal with 68(1). In a practical sense it does not matter, as we have said, but it just seems we should look at it and say something about it and that is what we said.
GUMMOW J: But then you go to 79, do you?
MR TEHAN: I am going to 79, now. Section 79 relevantly provides:
The laws of each State or Territory . . . shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
But, of course, the critical words are “except as otherwise provided by the laws of the Commonwealth”. As we see it then, at least the initial question to ask is whether there is a law of the Commonwealth which might otherwise provide for the principles of double jeopardy to be considered. Before turning to that question we should say that if section 79 is not engaged, then, in our submission, nor is section 80. In our submission, in the context of this case there is a little functional difference between the expression “so far as it is applicable and not inconsistent” in section 80 and the expression “except as otherwise provided” in section 70.
In any event, it is, in our submission, appropriate to look first to section 79(1) since section 80 is one of the laws to which section 79 has application. Further, if the State provisions were to operate, they would have the effect of abolishing the principle of double jeopardy, that is, it would not amount to section 80 of the Judiciary Act picking up and applying any amended or modified common law. There would no longer be any law to pick up and apply.
So now we move then to the question as to whether there is a relevant law of the Commonwealth, and our submission is that there is, and it is contained within Part IB of the Commonwealth Crimes Act 1914. This part of the Act is headed “Sentencing, Imprisonment and Release of Federal Offenders”. By it a large part of the old Commonwealth Prisoners Act 1967 was repealed.
The repealing Act, the Crimes Legislation Amendment (No 2) Act 1989 (Cth), followed upon two reports of the Australian Law Reform Commission in 1980 and 1988 concerning the sentencing of federal offenders, although soon after its introduction it was observed by the New South Wales Court of Criminal Appeal that the sections of the repealing Act could not be traced to the recommendations in those reports. Those observations are in El Kaharni and I think also in an earlier case of Paull. Section 16A(1) provides:
In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
Thus, the duty imposed by the section is to ensure that the sentence passed or the order made is of a severity appropriate in all the circumstances of the offence. By this duty the general principles of sentencing law are imported into a court sentencing for a federal offence. What will be “appropriate in all the circumstances of the offence” will depend in part upon a consideration of fundamental principles of sentencing.
In the consideration of a Crown federal appeal against sentence this provision is obviously relevant. It is our submission that an appeal court exercising federal jurisdiction on sentence applying this section necessarily has regard to the principles of double jeopardy sentencing. Those principles, in our submission, are engaged by the references to the sentence passed and the words, “the order made”, which include, in our submission, the whole of the sentencing process.
They are also engaged by the words, “is of a severity appropriate in all the circumstances of the offence” as the double jeopardy principles directly impact upon issues as to whether the sentence remains as it is and if there is a resentencing what the new sentence will be.
BELL J: Another possible interpretation is that 16A(1) is a statement of the principle of proportionality.
MR TEHAN: It has been held to at least include that, your Honour, in Wong v The Queen.
BELL J: On the view that it is doing no more than stating the principle of proportionality one would not import the breadth that you seek to give it. That is not to say that what you describe as common law principles would not be relevant in the sentencing of Commonwealth offenders in any event because it is not suggested I think that 16A is a code, but I am just taking up with you whether 16A(1) does all the work that you attribute to it.
MR TEHAN: It does. I am going to take your Honours to some cases now which might assist in answering that. In Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 this Court observed at paragraph [15] that it:
follows from the use of the words “of a severity appropriate in all the circumstances of the offence . . .” in s 16A(1) and the introductory words “In addition to any other matters . . . ” to 16A(2) –
the common law principles of sentencing continue to apply to the sentencing of federal offenders and so it was held in that case that common law principles of totality and avoidance of double punishment and not peculiarly local practices, that was what Johnson was concerned with – I think it was a West Australian case – apply. The application of common law principles also arose in this Court more recently in Hili v The Queen (2010) 272 ALR - - -
GUMMOW J: What do you get out of Johnson?
MR TEHAN: What we get out of Johnson is an answer to the question raised by your Honour Justice Bell and that is that it is not limited to principles of proportionality. It includes all common law principles that relate to sentencing.
GUMMOW J: Where do we see that, these common law principles? Where do we see in Johnson?
MR TEHAN: Well, Johnson, I think, your Honour, concerned a submission that local practices applied and it also concerned the issue of whether or not totality was properly taken into account. I was going to take the Court to Hili because Hili deals with Johnson. Hili was concerned with the issue of whether there was or could be a judicially determined norm for a non-parole period in the sentencing of a federal offender. At paragraph [25] in Hili the Court said:
As noted in Johnson v R, s 16A of the Crimes Act, on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of “totality” discussed in Mill v R. Section 16A accommodates the application of that and some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression “of a severity appropriate in all the circumstances of the offence” used in s 16A(1), as well as some of the expressions used in s 16A(2), such as “the need to ensure that the person is adequately punished for the offence”. But s 16A does not permit the making of generalisations across all forms of federal offence about how individual sentences are to be fixed.
and remembering what the issue was in Hili –
To attempt such a generalisation would depart from the injunction that the sentencing court “must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence” [scil. The particular offence for which a sentence is to be imposed].
Section 16A(1) and (2) were therefore held, in our submission, in Hili to accommodate common law principles concerning the fixing of non-parole periods, the result being in that case that this Court found that it was inconsistent with those principles that a judicially fixed norm be fixed as a starting point for the consideration of a non-parole period.
GUMMOW J: In paragraph [25] of Hili, the common law is being used as a shorthand for “judicially developed general sentencing principles”, is it not? We are reading paragraph [25].
MR TEHAN: Yes.
GUMMOW J: It is said that those judicially developed general principles are encompassed by the width of the words in 16A.
MR TEHAN: Yes, they give content to the words “of a severity appropriate in” - - -
GUMMOW J: That is right, but it comes down to statutory interpretation.
MR TEHAN: Yes. Our submission is that double jeopardy principles are encapsulated within section 16A(1) and (2) and if we do not convince the Court of that, then we do not win. We do not succeed.
FRENCH CJ: You say that is as a matter of statutory interpretation?
MR TEHAN: Yes, and as applied in the cases to which we have taken the Court. One can start at El Kaharni, which concerned the issue of general deterrence. One goes through to Wong, which concerned proportionality. We go through to Johnson, which concerned totality and avoidance of double punishment, and we go through to Hili, which concerned the fixing of a non-parole period and principles developed by this Court in cases such as Power and Deakin and other cases that concern that. If we are right, that it includes those principles, then we would say then it must include the substantive common law principle of double jeopardy sentencing because, after all, in a practical sense, double jeopardy sentencing principles do impact directly upon the severity of the sentence imposed, at least at the re-sentencing stage on a Crown appeal.
GUMMOW J: You then say a law of the Commonwealth otherwise provides and 79(1) does not operate, to pick up - - -
MR TEHAN: That is right, because it does not pick it up. That is the argument, your Honour. Your Honour has jumped ahead of me, but that is the argument, yes.
KIEFEL J: You do not rely, then, on section 16A(2)(m)?
MR TEHAN: We do not have to. I mean, we do if we have to but we say we do not have to. We are content to pitch our argument at 16A(1) if we - - -
FRENCH CJ: Would you accept the proposition that mental state does not extend to a presumed mental state?
MR TEHAN: We still put our flag on the minority opinion in De La Rosa. We are not saying that is wrong. In fact, the minority opinion in De La Rosa is our case. Whether Justice Basten went so far as to rely solely upon the (m) argument, if I can call it that, is arguable. We would submit that his Honour’s view was more consistent with what we are putting to this Court. Justice Allsop was the protagonist it would seem, in favour of the (m) argument. We say that argument is correct but we do not have to go that far.
KIEFEL J: Because on one view section 16A assumes that the same sentencing principles that apply at first sentencing will be applied by and resentencing by an appeal court. There is no differentiation apparent in the language of section 16A.
MR TEHAN: Between what would be applied in - - -
KIEFEL J: By the sentencing judge and on resentencing by an appeal court which is to say - a roundabout way of saying that notions of what is called “double jeopardy sentencing”, the content of which you are going to talk about at some point, would not have been taken into account in relation to section 16A. It is a statutorily imposed criterion or lack of criterion.
MR TEHAN: Our submission is that would not close the argument that on appeal double jeopardy principles are brought in under 16A(1). The mere fact that they obviously do not apply at first instance does not close the door to them applying on appeal.
HAYNE J: Can I just understand how that would work by reference to the words in 16A(1)? The words upon which you fix are the words:
is of a severity appropriate in all the circumstances of the offence.
Is that right?
MR TEHAN: Yes.
HAYNE J: The appellate court would determine whether there was error at first instance by determining whether, amongst other things, the sentence passed by the sentencing judge was of a severity appropriate in all the circumstances of the offence. Is that right?
MR TEHAN: Yes.
HAYNE J: Error would be determined against the standard identified statutorily in 16A(1)?
MR TEHAN: Yes.
HAYNE J: As I understand your argument it is that in determining whether a different sentence should be passed on appeal, the appeal court must consider what sentence is of a severity appropriate in all the circumstances of the offence?
MR TEHAN: Yes.
HAYNE J: As I understand it, you build into that this notion yet unexplored of double jeopardy, but what are the words in 16A(1) which provide the hook for it, because “of a severity appropriate” does not stand alone; it is, “of a severity appropriate in all the circumstances of the offence” which seems to pitch you back to the very question which underpinned the determination of error.
MR TEHAN: Yes. The words that provide the hook, your Honour, are “In determining the sentence to be passed, or the order to be made” – “sentence to be passed, or the order to be made”. That includes the whole process that leads to final order by an appellate court on sentence in a Crown appeal in a federal case.
HAYNE J: The expression “or the order to be made” at least encompasses such things as recognizance release orders.
MR TEHAN: Yes.
HAYNE J: It may encompass fine, though I would have thought that fine was a form of sentence, but you have to give it work which encompasses what the appeal court is doing.
MR TEHAN: Yes, we do and we are not afraid to do so.
HAYNE J: Then that may direct very close attention to what content you are giving to this notion of double jeopardy.
MR TEHAN: Yes, I do understand.
HAYNE J: We are coming. We are coming. We are getting there.
MR TEHAN: I do understand that, your Honour.
KIEFEL J: We are very interested.
MR TEHAN: Having dealt with Johnson and Hili, we turn to section 16A(2). It provides a list of matters which a court sentencing a federal offender “must take into account”. The list is not exhaustive, as indicated by the words “In addition to any other matters”. The matters are those which are “relevant and known to the court”. In our submission, this provision must be read together with section 16A(1) as a composite statutory provision. We adopt the reasoning of Justice Basten in De La Rosa at paragraph [108] that:
Although subs (1) refers to a sentence appropriate in all the circumstances of “the offence” - - -
HAYNE J: At [2010] NSWCCA 194; 273 ALR 324.
MR TEHAN: Yes, thank you, your Honour.
HAYNE J: Yes, we have to go back and reread the transcript and it helps if we have the citation there, Mr Tehan.
MR TEHAN: Thank you. I am indebted to your Honour:
Although subs (1) refers to a sentence appropriate in all the circumstances of “the offence”, that language cannot be intended to exclude the personal circumstances of the offender or [if it did] there would be inconsistency between that which each subsection mandates.
In our submission, in the sense that a sentence or order might be made which did not take account of any of only some of the matters enumerated in subsection (2). In our submission, both subsections work together, they accommodate general sentencing principles concerned with the offence and the offender. Section 16A incorporates the principle of double jeopardy in sentencing. If the legislature had intended such a fundamental principle to not apply to the sentencing of federal offenders upon a Crown appeal, then one would have expected it to have done so in clear terms.
KIEFEL J: Is that approach consonant with the use of the word “severity” in section 16A(1) when it is talking about the circumstances of the offence? Does that allow the personal circumstances of the offender to be taken into account at that point, or is subsection (1) referring to a discrete topic about the seriousness of the offence and therefore the severity of the sentence, and subsection (2) contains some of the mitigating factors that may also be taken into account.
MR TEHAN: The severity is of the severity of the sentence imposed, which in our submission, includes - - -
KIEFEL J: But the severity is linked to the circumstances of the offence.
MR TEHAN: The severity is the severity of the order or sentence, and ultimately 16A(1) concerns the order or sentence which must include a consideration of the personal circumstances of the offender. All 16A(2) does is provide a non-exhaustive list of some of the matters that the legislature has said must be taken into account. There may be personal circumstances of an offender which do not appear in 16A(2). How are they brought in? They are brought in because what you are determining under 16A(1) is the sentence or order to be made. That is why we submit that the two provisions, A(1) and A(2), need to be read together and to work together.
BELL J: Given that subsection (2) directs attention in (a) to “the nature and circumstances of the offence”, and that provides considerable support for your construction.
MR TEHAN: That is right. That supports our submission. If A(1) was only talking about the offence, why is it the first matter that is mentioned under A(2)? We will say something to the effect of 16A(2)(m) but - - -
GUMMOW J: Just what do you get out of Justice Basten in De La Rosa at pages 344 to 346?
MR TEHAN: What we get out of that is that section 16A(1) should not be confined to a consideration of the circumstances of the offence.
KIEFEL J: Then you link the personal circumstances to this notion about double jeopardy - - -
MR TEHAN: Anxiety, yes, and that is why - - -
KIEFEL J: You are going to explain to us where that notion comes from, about double jeopardy involving anxiety on resentencing?
MR TEHAN: Yes. It is appropriate though that, before turning to the issue of whether the provisions abolishing double jeopardy sentencing are picked up by section 79, to say a little bit about the importance of the principles in order to deal with some of the matters put against us.
Recognition - and this may in part answer the matter that the Court is pressing me on - recognition of the double jeopardy principle in this Court commences with Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230. The case of Whittaker was the first in this Court to examine the provisions of the Crimes (Amendment) Act 1924 (NSW) which allowed for the New South Wales Attorney-General to appeal against sentence. So it was in 1924 that this power of the Crown to appeal against sentence was first introduced into Australia and, specifically, into the State of New South Wales.
Similar provisions were to follow in other States years later, for example, in Queensland in 1940 and in Victoria in 1970. In England, the specific power for the Crown to appeal against sentence has only existed since 1988, although, since its establishment, there existed in the Court of Criminal Appeal the power to increase an offender’s sentence but it was rarely exercised.
Friedland’s text, Double Jeopardy, hardly mentions the concept of double jeopardy in relation to sentencing because at the time it was written in 1969 there were no such appeals in England. Even where such appeals existed in other jurisdictions, he observed, I think this is at page 290, I think – he observed that they were generally not:
categorized as a violation of the rules against double jeopardy, which are less concerned about the extent of punishment than about the determination of guilt or innocence.
That perhaps explains why some members of this Court have said that double jeopardy is not always employed with a single meaning. In Whittaker it was thought that the majority of the Court in that case decided that on a Crown appeal against sentence, the Court of Criminal Appeal had an unfettered discretion to alter the sentence. In dissent, Justice Isaacs cited English authority to the effect that on an appeal against sentence, what must be considered is whether a wrong standard or principle was being applied, adding that if a successful civil litigant has a vested interest in a judgment then:
still more should we respect the vested interest that a man has to the freedom which is his subject to the sentence of the primary tribunal.
Now, it is that statement in this Court in the first case that concerned the power of the Crown to appeal which encapsulates double jeopardy sentencing. That is, in part, the answer to the question that the Court has been pressing me on.
GUMMOW J: Which page in Justice Isaacs?
MR TEHAN: It is at page 248, your Honour. His Honour dealt with - at the bottom of page 247, I think, a couple of cases that had been in the New South Wales Court just after 1924 when the Act came in. Then over the page there is comparison to civil – the position of a civil litigant and this statement. I think it is about point 7 on the page.
Of course, soon after Whittaker it was the judgment of Justice Isaacs which was cited with approval by Justices Dixon, Evatt and McTiernan in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 and again some years later by the Full Federal Court in R v Tait and Bartley (1979) 46 FLR 386 at 388 to 389. Indeed, the statement of Justice Isaacs has been cited with approval many times, not only in this Court but in intermediate courts throughout the Commonwealth. In Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 Chief Justice Barwick thought that the erroneous view of Whittaker had led to an unwarranted increase - - -
KIEFEL J: Which page are you reading from?
MR TEHAN: It is at page 310, your Honour, Chief Justice Barwick. It is the top of that page – thought that the erroneous view of Whittaker had led to an unwarranted increase in Crown appeals in New South Wales, adding that the Crown appeal against sentence:
should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
HAYNE J: But all of this, Whittaker, the quotations from Whittaker in Griffiths, are directed to the problem which, in effect, is solved by House v The King. What is said in Whittaker concerned whether the power of appeal should be read as giving the authorities an unfettered second go, hence the reference to notions of vested rights and the like which may or may not be wholly apposite. Likewise, I think, in Griffiths. Sir Garfield Barwick’s comments at 309 over to 310 is looking at when can you re-sentence, not just because the statute allows appeal only when there is error. The difficulty that I suspect the argument encounters in going from what is said in Whittaker and Griffiths is that House tells us when error is to be found, manifest inadequacy being a particular species of error. We now have a statutory appellate structure that is erected. Where are we inserting the notion of double jeopardy into it?
MR TEHAN: Well, your Honour, one of the reasons why I entered upon - - -
HAYNE J: When the hypothesis is error – sorry, when the premise for the whole process is error below.
MR TEHAN: One of the reasons why we entered upon this little exercise was because an argument that is put against us is that section 16A(1) cannot incorporate principles of double jeopardy sentencing because at the time it was introduced the principles of double jeopardy were still in some sort of developmental and embryonic sort of stage, and what we have sought to do is to say, look, it has been understood, at least since Whittaker, what those principles are and they have been engaged in many cases in this Court and in intermediate courts, and the principle remains that the heart of double jeopardy is this notion of putting a man or a woman up for sentence again, and at the heart of that is the notion of stress and anxiety. That was the notion that was accepted, of course, by the New South Wales Court of Appeal in De La Rosa and we say that that submission is right.
Can we take the Court to Pearce v The Queen (1998) 194 CLR 610 at paragraphs 9 to 10 where Justices McHugh, Hayne and Callinan said:
If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States:
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
It is interesting that Friedland in the opening chapter to his work also refers to Justice Black’s statement in Green v United States.
GUMMOW J: Which page of - - -
MR TEHAN: I think it is on page 1 of Friedland.
BELL J: Just while you are tracing the history, Mr Tehan, you referred in passing to the decision of the Federal Court in the R v Tait (1979) 46 FLR 386. In the joint reasons of Justices Brennan, Deane and Gallop at 388 and 389, their Honours, after referring to Sir Garfield Barwick’s reference to the earlier judgment in Whittaker and the notion of a vested interest that a man has to freedom, go on to use the expression that the person is for the second time in jeopardy on a Crown appeal against sentence and in the succeeding paragraph to use the expression “double jeopardy” in this context. I think that might be the first time the expression “double jeopardy” was used in this context, is that right?
MR TEHAN: In the context of - - -
BELL J: Of Crown appeals.
MR TEHAN: Yes.
BELL J: Yes. Just simply for the history.
MR TEHAN: Yes, the history. Yes, I think that is right. Back to Justice Black and Green – sorry, it is at page 4, to answer your Honour Justice Gummow’s question. The reference to Justice Black’s statement in Green v United States is at page 4 in Friedland. As Chief Justice Spigelman observed at paragraph 58 in R v JW - - -
GUMMOW J: Have we left Pearce v The Queen?
MR TEHAN: Yes, your Honour.
GUMMOW J: It would seem to me in Pearce that this notion of double jeopardy is used in some sense of illegal value, not a definitive legal principle. I think you have to face up to that. I see that at page 629 after some pages of cogitation about it.
MR TEHAN: Yes. That is why I made the passing comment earlier that that is why some members of this Court have said - - -
GUMMOW J: We get the same problem when people come up here and talk about restitution. It is a world away from this case. It is concept. It is not a legal rule. It is not worked out as a legal rule. This is just a value, this notion of double jeopardy, it seems, except insofar as it has found specific application and specific situations that you could say there is a rule.
MR TEHAN: Yes. What underpinned it - - -
GUMMOW J: How it creeps into Crown appeals against sentence, I am not sure.
HAYNE J: Because the underpinning principle at issue may better be identified as the principle of finality and it is the finality of judicial process which is the true issue at stake. Once you have been sentenced, that is it.
MR TEHAN: That is it, yes.
HAYNE J: Subject only to – and we looked at that in D’Orta-Ekenaike [2005] HCA 12; 223 CLR 1 at 17, paragraphs 34 and following and the pervading notion of finality.
MR TEHAN: Yes. Your Honour Justice Gummow spoke of values. There is no doubt that what underpins the notion of double jeopardy are values and the Court spoke somewhat about this in Lacey v Attorney-General and, indeed, this Court spoke about it also in Malvaso.
FRENCH CJ: There is a passage from Malvaso [1989] HCA 58; (1989) 168 CLR 227 at 234 which is quoted in Lacey [2011] HCA 10; 242 CLR 573 at 583 where it speaks of deep rooted notions of fairness and decency. That rather fits with the characterisation that Justice Gummow has proposed as a value rather than a rule.
MR TEHAN: They are the values that underpin the rule and the rule is that considerations that attach to this notion of putting a man up for sentence again should be taken into account when he or she is put up again. As your Honour Justice Hayne has said, some of those matters may in fact derive from another source such as principles in relation to House, that there has got to be not simply a finding of manifest inadequacy but manifest inadequacy expressed in terms of error in principle.
The best statement, at least in Victoria, of the rule is in R v Clarke [1996] VicRp 83; (1996) 2 VR 520, a judgment of the Court of Appeal in which the members were President Winneke and Justices Hayne and Charles, and Justice Charles at page 522 expressed the matter in this way:
The relevant rules may be stated in the following propositions:
1. An appeal by the Crown should be brought only in “the rare and exceptional case” (Everett at 299) to establish some point of principle.
Of course, just stopping there, as we demonstrated earlier, the notion of rarity comes out of Chief Justice Barwick’s statement in Griffiths, and he is dealing with the situation that arose in New South Wales where Crown appeals were perhaps a bit more frequent than it was felt they ought to be. His Honour had expressed – Chief Justice Barwick, at least, had expressed similar views some six years earlier in the case of Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447 at 452, where his Honour - - -
FRENCH CJ: I think we reviewed all of that history in Lacey, actually.
MR TEHAN: Yes, I just wanted to say this, because again, they cut across time-honoured concepts of criminal administration and, yes, that was all reviewed in Lacey. The reason is that such appeals represented, and I will not reread the statement from Malvaso because I have done so already, but:
2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience . . . (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).
3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact –
and then his Honour picked up the New South Wales case of Allpass and added two further matters –
4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.
Now that, at least in Victoria, has been taken to represent a neat summary of the principles which relate to the Crown appeals and encapsulated within them are the rules relating to double jeopardy sentencing. Now, can I take the Court back to where I was, and that was having cited this Court’s approval of Justice Black’s statement in Green v United States to observe that, as Chief Justice Spigelman observed in R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 at 58:
Although those observations were not made in the context of an appeal against sentence, they nevertheless clearly applied to such an appeal.
His Honour had earlier, at paragraph 55, referred with approval to what President Kirby had said in R v Hayes (1987) 29 A Crim R 452:
“ . . . in a practical sense, there is a species of double jeopardy. The prisoner’s liberty, pocket and reputation are put in jeopardy - - -
GUMMOW J: Where are you reading from?
MR TEHAN: Paragraph 55 of Chief Justice Spigelman’s judgment in JW which – it is the citation of what President Kirby had said in Hayes that I am concerned with:
are put in jeopardy both before the sentencing judge and before the appellate court . . . In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position . . . ”
Then later his Honour referred, from paragraph 65 onwards, to the double jeopardy case law, much of which I have sought to traverse and summarise, through to paragraph 76 where his Honour referred to the statement of Chief Justice King in Wilton (1981) 28 SASR 362 at 367 to 368:
“The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R v Tait and Bartley (1979) 24 ALR 473 by ‘double jeopardy’. In my opinion - - -
GUMMOW J: I think we have got to go to Tait at some stage.
MR TEHAN: Sorry, your Honour?
GUMMOW J: Looking at paragraph 77 of JW, prior to Tait, New South Wales did not employ this language. So where does it come from in Tait 24 ALR 473? Was Justice Deane a party to that?
MR TEHAN: Yes, he was. It is Justice Deane and Justice Brennan.
GUMMOW J: I do not think we have Tait here, have we? That seems to be the root of it.
MR TEHAN: Yes.
BELL J: It is the root of it and it is at pages 388 and 389 of 46 FLR in the joint reasons of Justices Brennan, Deane and Gallop.
MR TEHAN: Yes, that is right, your Honour. I am afraid I only have the Australian Law Report before me, but in that report it is at pages 476 and 477:
Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across “time-honoured concepts of criminal administration” –
referring to what Chief Justice Barwick said in Peel.
A Crown appeal puts in jeopardy “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal” (per Isaacs J, Whittaker v R, supra at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court.
Then the court went on to deal with where the Crown may have led the primary court into error.
HAYNE J: Well, that sort of case is a Coulton v Holcombe-type case. It is better understood in terms of finality, finality principles that intersect with processes of appeal. If the Crown conducts its case on a particular basis below, so be it, too late now by its own appeal to raise some new basis. Double jeopardy may be another rather colourful way of referring to that, but it is adding colour but not much light, I think.
MR TEHAN: Yes. I can see how the finality matter, clearly as your Honour has said, dovetails with well, if the Crown have done it or led the primary court into error then why should they have a second bite at the cherry, so to speak. But all these things in a sentence, your Honour, are examples of the way in which double jeopardy sentencing comes before an appellate court. I mean, the primary rule is encapsulated in what Justice Isaacs said in Whittaker and approved of in Tait and Bartley.
Now, what does that rule mean in a practical sense? What that rule means in a practical sense is that account is taken of the respondent being placed in a state of anxiety and distress at having his – subjected to sentence again. That is what it means and that is the view that has been taken obviously by the Bench of five in New South Wales and - - -
KIEFEL J: More to the point, perhaps, is what do the words “double jeopardy” mean in the statute in section 289 and section 290 of the Victorian provisions? If you were talking about giving content to the expression in section 289(2), “any element of double jeopardy” which has to be consistent with the similar expression “the element of double jeopardy” appearing in section 290(3), how do you read those words? What is the direction to the court? The court must not take into account that the person may be exposed for a second time to another and perhaps higher sentence. Is that what it means?
MR TEHAN: The court must not take into account the presumption that a respondent to a Crown appeal suffers anxiety and distress.
KIEFEL J: That might be relevant in relation to re-sentencing by reference to a personal circumstance, but how can that be what is intended in section 289(2) when you are determining error and whether or not there is manifest inadequacy on the face of the sentence.
MR TEHAN: Because part of the process of determining error is to bring the person before the court often months later and in this case, for example, many months later in circumstances where that person can be taken to have suffered anxiety and stress.
HAYNE J: That is the fact, Mr Tehan, but is not 289(2) denying the construction of 289(1)(b) which you advanced, namely, that in considering whether a different sentence should be imposed notions of double jeopardy might somehow inform that decision? Is not the whole point of (2) to say, no, you do not?
MR TEHAN: Whether that is the case or not, I mean, the view has been taken by a majority in Victoria that the notions of double jeopardy and perhaps what was had in mind was the notions of rare and exceptional case still are kept intact in informing the Director as to whether or not he makes the decision to lodge a Crown appeal. The minority, Chief Justice Warren and President Maxwell, did not accept that but they were in the minority. That issue does not arise in this case.
What does arise in this case is the content to be given to double jeopardy which is abolished and the content to be given to it is, in our submission, presumed anxiety and distress because it is that notion which is at the very heart of double jeopardy sentencing as explained by Justice Black in Green v United States, as explained by President Kirby in Hayes and as explained by Chief Justice Spigelman in JW and the cases to which he refers, principally, Hayes and Wilton - Chief Justice King in Wilton which is where I was at and Chief Justice Street in an unreported case of Tleige which is referred to in paragraphs 77 and 78.
True enough, I observe in answer in part to what your Honour Justice Kiefel put to me, that in Tleige, for example, Chief Justice Street is speaking about distress and anxiety in the context of the re-sentencing stage. He says:
“In determining what the quantum of sentence should be we have, as not infrequently occurs in the case of Crown appeals, borne in mind that the respondent has been twice in jeopardy in the matter of sentence. It will be distressing in the extreme for him to suffer the sentence passed on him some time ago being increased. This leads us to determine a sentence which is more lenient than would properly be appropriate if the matter were coming forward for sentence for the first time.”
So there you have got this concept again of stress and anxiety, facing an increase in sentence and therefore that means you get a sentence which is lower than you otherwise would. The stress and anxiety happens the moment the notice of appeal is served upon the respondent at the gaol or at his home in Victoria. The Director has a month to do so and often leaves it to the last day of the month. That is when the stress levels are presumed to go up.
KIEFEL J: They might go up when they are first sentenced as well.
MR TEHAN: Well, sentencing is stressful at every stage, your Honour.
KIEFEL J: Exactly, so it might not give you the whole content about what is meant by double jeopardy. It might be, as Justice Gummow has referred, a value that underlies it, but it really does not explain what the statute here is directing the court not to take into account.
MR TEHAN: At the end of the day, we have taken on board the judgment of the five member bench in New South Wales. That is the view they took of the matter.
KIEFEL J: Anyway, I think you have been there. I think you are up to paragraph 11 on your outline.
FRENCH CJ: On one view, 289(2), going beyond what was said in JW, would exclude in the exercise of assumed discretion under 289(1)(b) any considerations based on the inherent unfairness of an appeal against sentence by the Crown, in other words, that underpinning value that was referred to in Malvaso. In other words, you put those things to one side in determining whether or not to allow the appeal by reference to 289(1)(b).
MR TEHAN: Well, it does, your Honour. I think those values, in a sense, are what the Parliament have said.
KIEFEL J: But these, importantly, from the point of view of your argument, these are general values which apply to all appeals and they would not have regard to the particular personal circumstances of the person facing re-sentence.
MR TEHAN: That is why you have - - -
KIEFEL J: That is important with respect to section 16A, is it not?
MR TEHAN: There may be matters which arise upon a Crown appeal which have nothing to do with double jeopardy. For example, there might be an issue as to parity where you would say, well, look – but because the co-offender got a sentence which was also very low and we might even think we would not have given it - - -
FRENCH CJ: We looked at that in Quinn and Green which we put the reasons in yesterday.
MR TEHAN: Yes, the fact of the matter is the Crown did not appeal that sentence but they had appealed your sentence; we are not going to interfere. That is one example. What about an issue such as delay where the person is completely – has had their liberty, as indeed in our case, we were sentenced to three years imprisonment and released upon a recognisance. The person re-orders their life, there has been a delay of many, many months. A Court of Criminal Appeal may say well, look, even though there is error in this case we are not going to re-sentence.
Is that something which arises by virtue of double jeopardy - probably not. It simply arises by virtue of the reality of the situation that the Crown have – I mean, it is not every matter that might arise as a result of the Crown appealing against sentence which can be brought into the notion of double jeopardy. If the notion of double jeopardy is to be given a meaning, then the meaning is to be found in that underlying idea that Justice Black spoke of in Green v United States. This concept – and it was picked up by Chief Justice Spigelman in JW and the cases to which he made reference - this concept of anxiety and stress at being put up for sentence again. That is our submission.
Now, if I could just go back to where I was - indeed, whilst on this matter, it is our submission that there should be no distinction drawn between presumed distress and anxiety and actual distress and anxiety. The presumption of actual distress and anxiety really is a presumption as to the reality and the reason why we raise this matter is because a matter which is put against us is that there would be no different result in this case because the Court of Appeal, in fact, took into account evidence of the actual distress and anxiety of the appellant.
In our submission, that submission of our opponent should be rejected because had the Court of Appeal taken into account the principle of double jeopardy then they may have found the error, having identified error, insufficient to justify appellate intervention.
The court may have found that the case did not fall within the rare and exceptional category given the particular circumstances of the appellant that motivated the primary judge not to immediately imprison her. Even if the error had been found important enough to interfere and the court proceeded to, in fact, consider the imposition of a different sentence, the court might have found that such a sentence was so close or so reasonably close to what, in fact, was imposed as to not warrant intervention, remembering of course that accepted principles of double jeopardy sentencing would have dictated that the sentence be towards the lower end of the range of sentence to be imposed.
It must be remembered here that the sentence that was imposed by the Court of Appeal was four years, whereas the sentence imposed by the primary judge was three years, albeit that sentence was suspended by release upon a recognizance release order, although it remains the case that it is to be taken as a sentence for imprisonment. So our submission is and we say all that because what we are saying there really is that the submission that because there was evidence in our case of actual anxiety and distress, the result would have been no different. We say that submission should be rejected.
GUMMOW J: Mr Tehan, I just want to interrupt you for a minute. Section 16A was enacted in 1990, is that right?
MR TEHAN: Yes.
GUMMOW J: It has been amended, but 1990.
MR TEHAN: Yes.
GUMMOW J: Tait is decided in 1979 and it was a customs offence and there was a Crown appeal in the Federal Court, it came from the Territory. We find in Tait at 476 to 477 what has become the genesis of this species of double jeopardy as to re-sentencing, et cetera. Do you say that that expression in 16A(1) must impose a sentence or make an order contemplates that the order may be made by an appellate court?
MR TEHAN: Yes.
GUMMOW J: And that the appellate court then is enjoined to make an order of appropriate severity in all the circumstances?
MR TEHAN: Yes.
GUMMOW J: That the enactment of that in 1990 in the light of Tait must bring with it your double jeopardy notion?
MR TEHAN: Yes.
GUMMOW J: Because that is what the federal law seemed to have been established by the Full Federal Court in 1979. If that were right, it would not then be a case of picking up what has since been done by the State statute in section 289 because your position would be insulated by 16A(1).
MR TEHAN: Because it is there anyway.
GUMMOW J: Yes – no, it cannot be taken away by the State Act because your position would be insulated by 16A(1). I think we have to get down to the mechanics of how all this works.
MR TEHAN: Well, that is our point. I mean, that is our point, your Honour, that 16A(1) otherwise provides. That is it, and I am going to turn now to those cases on otherwise provide, how – what this Court has said about that test.
GUMMOW J: Unless your opponent wishes to attack Tait, which I do not think she does.
MR TEHAN: Well, I do not believe that either our opponent or the intervener seeks to say anything attacking Tait.
BELL J: This is your primary point and you say that properly understood it is the approach that Justice Basten took, that his judgment did not depend on compatibility with (m).
MR TEHAN: On (m), yes, that is right, and that is why we have not – I mean, we can go down the path of (m) but we say it is unnecessary because we say Justice Basten is right, and his judgment encapsulates our position. In fact, that summarises it very helpfully, your Honour.
GUMMOW J: Did Justice Basten construe 16A in the light of the pre-existing federal authority of Tait? I mean, you are talking about federal law, but these cases seem to come up in State courts of criminal appeal. That is the last thing anyone wants to look at. They would much rather talk about their own decisions on State law, and we just get deeper and deeper into this puddle.
MR TEHAN: Yes, I am not sure that he did, your Honour. He was dealing – what De La Rosa - - -
GUMMOW J: I realise that in JW the Court did point to Tait.
MR TEHAN: Yes, they certainly did in JW.
GUMMOW J: At paragraph 66, was it?
MR TEHAN: The argument in De La Rosa tended to concentrate upon this difference between – well, A(1) is dealing with the offence and - - -
GUMMOW J: Paragraph 77 of JW.
MR TEHAN: Yes. De La Rosa dealt with whether it is – the offence is (1) and the circumstances of the offender are (2), and every judge except Justice Basten seemed to accept that argument, that there was a difference. Now, we say Justice Basten is in fact correct, that you look at A(1) and (2) together and you make – they have to work together. In a sense it does not matter because double jeopardy sentencing is there within A(1) and if it is there within A(1), and we say A(2) also, then there is a Commonwealth law which otherwise provides.
HAYNE J: I understand that point, but tell me again how you say the words in A(1) pick up the existing federal case law or reflect, leave aside the language of pick up, how the language of 16A(1) reflects the understanding of the law stated in Tait?
MR TEHAN: Because it gives content to the phrases “order to be passed”, “sentence to be passed” and most appropriately on a Crown appeal, “the severity of the sentence appropriate in the circumstances”.
HAYNE J: No, “in all the circumstances of the offence.”
MR TEHAN: In all the circumstances.
HAYNE J: No, “in all the circumstances of the offence.” Not all the circumstances of the case.
MR TEHAN: No, your Honour is correct, but it gives content to those words. The common law informs the statute and gives meaning to the statute about severity appropriate in all the circumstances of the offence. That is why Tait is relevant.
FRENCH CJ: That is one view of it. Another view of it is that the words “severity appropriate in all the circumstances the offence”, when informing the power that the Court of Appeal has to exercise if it decides to allow an appeal, displaces any consideration of double jeopardy which might allow anything less than an adequate or appropriate sentence to be passed. In other words, the federal law guides and constrains the discretion of the Court of Appeal.
MR TEHAN: The question in this case is whether it is picked up.
FRENCH CJ: I am talking about what is directly there, 16A, the words of the federal statute which determine what kind of sentence is to be imposed in respect of a federal offence.
MR TEHAN: Yes. They apply, your Honour, but we do not see how that impacts upon our argument, how it defeats our argument, with respect. If the notion of double jeopardy which we have been putting to the Court is encapsulated within – or gives meaning to the statute, then it has to be applied by a State appeal court exercising federal jurisdiction. That is why the question becomes what it does in this case, whether the section 79 applies. Can we turn then to some of the authorities concerning section 79(1) and, in particular, the phrase “otherwise provides”. The first of the cases that we desire to refer to is Northern Territory of Australia v GPAO (1999) 196 CLR 533. In that case, the test to be applied to determine whether a Commonwealth law otherwise provides so as to displace the operation of section 79 of the Judiciary Act was set out.
The Court in that case considered whether section 79 operated to pick up a Northern Territory provision and apply it to a Family Court proceeding. In a custody dispute the Registrar of the Family Court had issued a subpoena to the Child and Family Protective Services to produce to the court all files in relation to a particular child. Subsection 97(3) of the Community Welfare Act (1983) NT provided that certain persons were not to produce a document in a court or disclose or communicate any matter to a court.
An application was made to vacate the subpoena on the basis that section 97(3) of the Northern Territory provision excused compliance with it. The question which arose was whether this provision was repugnant to the operation of the Family Law Act. At paragraph 81 at page 588, Chief Justice Gleeson and Justice Gummow said that:
The issue whether the Family Law Act makes relevant provision otherwise to s 97(3) of the Community Welfare Act may be approached by asking whether the operation of the former so reduces the ambit of the latter that the provisions of the Family Law Act are irreconcilable with those of the Territory law, with the result that the Family Law Act “otherwise provide[s]”.
At paragraph 84 their Honours found that the provisions of the Family Law Act leave room for the operation of the immunity conferred by section 97(3). In particular, the provisions of the Family Law Act provided that a sanction for non-compliance with a subpoena would not be imposed where the Family Court were satisfied that a person had a reasonable excuse. The immunity provided by section 97(3) was considered to constitute such a reasonable excuse.
The result was that Part VII of the Family Law Act did not otherwise provide and accordingly section 79(1) did operate to pick up the Territory law. Your Honour Justice Hayne agreed with the reasons of Chief Justice Gleeson and Justice Gummow and Justice Gaudron expressed a similar view. Justice Kirby dissented, considering the Family Law Act provided otherwise, whilst Justices McHugh and Callinan considered that the Family Court was exercising Territory jurisdiction so no question of the operation of section 79(1) applied.
Applying this irreconcilability test to the present case, we submit that the ambit of the operation of Commonwealth law, that is section 16A(1) and (2), is significantly reduced by the State provisions abolishing double jeopardy. On a Crown appeal against sentence in a federal prosecution, if the federal surrogate law applies, there is no room open for the principle of double jeopardy in sentencing to do any work. To that extent, section 16A(1) and (2) cannot have their full operation. Therefore, in our submission, the Commonwealth law is irreconcilable with the suggested federal surrogate law such that the Commonwealth law otherwise provides and section 79(1) does not operate to pick up the State law as federal surrogate law.
Next, can we take the Court to Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287. In that case, the commission successfully prosecuted the appellant in the Western Australian Court of Petty Sessions for State offences. The appellant then appealed successfully to a single justice of the West Australian Supreme Court. However, that order was set aside and the original conviction reinstated by the Full Court. The question on appeal to this Court was whether ASIC had any statutory authority to institute its appeal to the Full Court of the Supreme Court. While State provisions allowed for an appeal to the Full Court from the decision of a single justice of the court, those provisions could only apply in federal jurisdiction if it could be picked up by section 79 and section 79 could only pick up a State law if a Commonwealth law did not otherwise provide. The relevant Commonwealth law was the Act setting up ASIC and conferring its functions and powers. At page 296, paragraph 22, the Court said that if the West Australian Justices Act under which ASIC appealed to the Full Court:
would have added to or derogated from those powers and functions –
which were invested to ASIC by the act investing it with those powers and functions –
then it would not have been “picked up” by s 79 because the Commonwealth law would otherwise have provided.
At 44, page 302, the Court said that:
Where the law of a State purports to grant some wider power or authority –
to a body established by Commonwealth law such as ASIC –
then the law of the Commonwealth will be one by which it is “otherwise provided” for the purposes of s 79 of the Judiciary Act. The result is that federal law did not empower the ASC to institute and conduct the appeal to the Full Court, nor did s 79 “pick up” any provision of State law otherwise expressed in terms sufficiently broad to endow ASC with the capacity to [appeal].
Applying these principles to the present case, it is trite to observe that there is no Commonwealth law which abolishes consideration of double jeopardy in sentencing a federal offender on a Crown appeal. More importantly, in our submission, the State law here, we have suggested federal surrogate law, does seek to derogate from the operation of section 16A(1) and (2) of the Crimes Act (Cth) by taking out of that operation a relevant and fundamental principle of sentencing law.
Finally, could we take the Court to British American Tobacco Australia Ltd v State of Western Australia [2003] HCA 47; (2003) 217 CLR 30. In that case the question was whether section 79 operated to pick up section 6 of the Crown Suits Act (WA) which provided no right of action lies against the Crown unless notice had been given to the Crown of intended proceedings. No notice under this Act had been given. A majority of this Court held that section 79 did not operate to pick up section 6 because that latter provision, that is section 6, would deny the operation of a Commonwealth law, that is section 64 of the Judiciary Act which provided that in any suit to which a State is a party the rights of the parties shall as nearly as possible be the same. Thus, this section sought to deny to the State the otherwise privileged position it would hold by dint of the State Act and, thus, section 79 could not operate to frustrate the operation of the Commonwealth law. That finding appears in particular at paragraphs 67 and 77 of the judgment of Justices McHugh, Gummow and Hayne.
Again, we submit that the operation of section 16A(1) and (2) of the Crimes Act (Cth) is frustrated by the State provisions abolishing the consideration of double jeopardy in the sentencing. If those abolition provisions are to apply in a federal offence, they curtail and frustrate the operation of Commonwealth law which incorporates the principle of double jeopardy in sentencing on a Crown appeal. Whether the test of “otherwise provides” in section 79 is expressed in terms of repugnancy, irreconcilability, derogation or frustration, the result is the same in this case.
Section 16A, and by that we mean subsections (1) and (2), cannot properly do its work on a Crown appeal in a federal prosecution if the State provisions abolishing double jeopardy are sought to be brought in as federal surrogate law. In our submission, it cannot do its work on a Crown appeal because the imposition of sentence and the making of orders concerning sentence are constrained by the abolition of a fundamental principle of sentencing which, on a Crown appeal, is at the very height of determining that the sentence and orders to be made are of the severity appropriate to the circumstances of the offence. There has been some reference to the Full Federal Court decision in 1979 of R v Tait and Bartley. That decision, as I think your Honour Justice Gummow pointed out to me, preceded the coming into effect of section - - -
GUMMOW J: They said, I think, in the State that this was the first sentence appeal after the establishment of the Federal Court Act.
MR TEHAN: Yes, but it has been continually referred to.
GUMMOW J: It looks as if they were setting about laying down some principles.
MR TEHAN: Yes, but it has been continually referred to and applied, irrespective of section 16A.
KIEFEL J: But their Honours were also construing or laying down principles with respect to particular appeal sections in the Federal Court of Australia Act.
MR TEHAN: True.
KIEFEL J: So the question is how widely were the principles intended to apply and do they continue to apply after section 16A?
MR TEHAN: Your Honour knows our answer to that. Our answer to that is, yes, they do. In fact, they were encapsulated in - - -
KIEFEL J: Why?
MR TEHAN: Because they have been continually referred to. Tait and Bartley is continually referred to. It has been referred to with approval in - - -
KIEFEL J: It has not been referred to in the context of the principle that it stands for in terms of federal law. It has been referred to as expounding what has been known to the common law.
MR TEHAN: To the common law?
KIEFEL J: Yes.
MR TEHAN: Yes. Well, then, those common law principles are brought into section 16A and that is why we referred to Johnson v The Queen and Hili v The Queen because Hili supports, in our submission, that proposition, that fundamental common law sentencing principles are encapsulated within section 16A.
GUMMOW J: Is there any distinction between – in 16A(1) it talks about “a court”, 16A(2) shifts to “the court” then 16A has to be read with section 16D, I suppose, 16C, the obligations to “explain” under 16F, 17A looks quite important.
MR TEHAN: Any difference between “a court” and “the court”, your Honour.
GUMMOW J: Well, “a court” may not necessarily be the trial court, that is what I am worrying about.
MR TEHAN: Yes, it may not be and in fact is not, in this case.
FRENCH CJ: Was there any reference to section 17A, incidentally, in either the sentencing judge’s remarks or the Court of Appeal?
MR TEHAN: Section 17A?
GUMMOW J: These provisions all suggest a comprehensive federal provision.
MR TEHAN: Yes. Was there any reference to 17A in either the Court of Appeal or the sentencing – no, your Honour. Now, could we turn, finally, to the order that we seek. In our submission, the order of this Court should be that the orders made by the Court of Appeal of 9 March 2011 be set aside. We submit that the order should then be that the appeal to that court be dismissed. In our submission, had the principles of double jeopardy in sentencing applied to this case then the error made by the sentencing judge would not have led to any different sentence being imposed.
The error identified was that the judge conflated the hardship to the appellant’s family with her co-operation with law enforcement agencies in order to find exceptional circumstances. It was also said that the judge may have applied the wrong test in relation to hardship, looking at the matter from the viewpoint of risk rather than probabilities. In our submission, these are minor errors.
The circumstances of the appellant were and remain compelling. She has infant twins. She is their sole carer and provider. Time in gaol with them is obviously not ideal. Her prior conviction was irrelevant. She provided considerable assistance to the Federal Police implicating all her co-offenders, making two statements to the police. She has already given evidence at a committal hearing against two co-offenders. She is due to give evidence in at least one trial in March next year. There had been a delay of nearly one year between the passing of sentence by the trial judge and the delivery of judgment by the Court of Appeal. The sentence imposed was on - - -
BELL J: 30 April 2010.
MR TEHAN: 30 April 2010 and the judgment of the Court of Appeal was delivered on 9 March 2011. It is not a year but it is almost a year. I should say in this regard - - -
FRENCH CJ: The appeal was heard, I think, on 9 November.
MR TEHAN: On 9 November and then it was said that one of the reasons why the court waited over - - -
FRENCH CJ: Was Karazisis.
MR TEHAN: Yes, was Karazisis, but Karazisis ultimately did not have anything really – did not affect the matter. It was a delay then from November, December, January, February to March and Acting Justice of Appeal Ross referred to delay at appeal book page 163, paragraph 89 and referred to having to wait for Karazisis. But then at paragraph 90 he said:
I am not persuaded that the considerations to which I have referred warrant the exercise of the Court’s residual discretion to decline to intervene. Indeed if such considerations were sufficient to invoke the residual discretion then almost every offender faced with a Crown appeal against sentence would be entitled to a favourable exercise of that discretion.
Well, in our submission, the delay for nearly a year between the passing of sentence where the offender is allowed liberty in the delivery of judgment which imposes a denial of that liberty for a period of four years upon a woman with infant children is a delay which is significant and frankly unacceptable.
This was a case where had double jeopardy sentencing principles applied this Court can readily form the view that the Court of Appeal would have dismissed the appeal, even if error had been found. In those circumstances, in our submission, the appropriate order is to order that the appeal to the Court of Appeal be dismissed.
GUMMOW J: Could you just look at the order the Court of Appeal made. Is that at page 168? What has paragraph 4 got to do with a federal offence?
MR TEHAN: Yes, indeed.
GUMMOW J: What does section 6AAA do?
MR TEHAN: The effect of section 6AAA of the Sentencing Act (Vic) is that a court has got to make a statement as to what the sentence would have been but for the fact that the appellant pleaded guilty.
GUMMOW J: That seems to involve some relationship with these provisions in the federal law that we have been looking at.
HAYNE J: You have to have an equivalent statement under 21E of the federal Act, that is, is the order taken out in error? You have to have under – because the reasons at appeal book 165 where you have an undertaking by the prisoner to co-operate under 21E – have we some glitch in the taking out of the order rather than the court’s consideration?
FRENCH CJ: The judge makes it clear at 165, paragraph 97, I think, the Court of Appeal decision:
But for the respondent’s 21E undertaking I would have imposed a sentence of –
et cetera.
MR TEHAN: Yes, but that relates to the undertaking.
HAYNE J: I wonder whether the registrar has too readily adopted a common form from State law which is completely inapposite to the orders as made by the Court of Appeal.
MR TEHAN: I am sorry, your Honour. Well, no.
HAYNE J: No?
MR TEHAN: Yes, I think that is right, your Honour, because it is five with two and a half and that dovetails with the five with two and a half that is mentioned at 97. No, I am sorry. The section 6AAA statement is, in fact, made in the reasons at 99.
BELL J: Yes.
HAYNE J: Different.
MR TEHAN: That is our sentencing Act.
GUMMOW J: Ours?
MR TEHAN: I should not say that.
HAYNE J: We live in a federation, Mr Tehan. You may not have noticed.
MR TEHAN: I am sorry. I have to have that reality brought home to me every time I appear. The sentence would have been six with three.
GUMMOW J: Where do we see the reference in the body of the reasons to section 6AAA?
MR TEHAN: It is not actually specifically referred to, your Honour.
BELL J: If you look at 99.
MR TEHAN: But it is at 99.
GUMMOW J: I still do not understand. How is 6AAA picked up? Do we read order 4 as a slip for 21E?
MR TEHAN: Yes, it should be 21E. Section 6AAA might be picked up under 68(1) as a law procedure.
GUMMOW J: Well, not on the face of 21E, I expect.
MR TEHAN: But, in any event, that is a debate which does not arise. In our submission, there should not be a remitter in this case because the appellant should not be subjected to further delay, anxiety and distress. The events here occurred nearly three years ago. It is a Crown appeal. The appellant has now been in custody for nearly one year, yet the original sentence preserved her liberty. For these reasons, in our submission, there should be no remitter should we succeed. If the Court pleases.
FRENCH CJ: Thank you, Mr Tehan. Yes, Ms Abraham.
MS ABRAHAM: Your Honours, the issue of whether the State provisions are picked up and applied to the Commonwealth offences clearly involves an assessment of the relevant provisions, the State and 16A. In my submission, it is important at the outset to look at the consequences of my friend’s argument - - -
GUMMOW J: Well, it is important at the outset to construe 16A, I think.
MS ABRAHAM: Which is why I was going to look at the consequence because, in my submission, if one looks at the consequence of my friend’s argument, that reflects that it clearly does not fall within either 16A(1), (2) or (2)(m) because, in our submission, section 16A appearing in Part IB of the Crimes Act relates to the sentencing of an offender, and it commands that the - - -
GUMMOW J: Sentencing by whom?
MS ABRAHAM: By a court. It does not distinguish, so if an appellate court is sentencing, then the appellate court must apply 16A, in my submission, and it commands that a sentence or order made that is of a severity - - -
GUMMOW J: How does that fit in with the circumstances of the offence, the use of the words “circumstances of the offence”?
MS ABRAHAM: In my submission, that highlights that what one is doing is looking at the particular facts of a particular case and imposing a sentence that is just in the circumstances of that case. So one is looking at the circumstances of that particular offence. You are, of course, informed by the matters in subsection (2) when one is determining the ultimate sentence, what is appropriate in the circumstances of the particular offence. What it does not do, in our submission, is provide some category of offenders that have a separate principle that applies to them on the basis of my friend’s argument of a presumption. If I could look at the - - -
GUMMOW J: So, 16A involved the Parliament in limiting or removing Tait?
MS ABRAHAM: In my submission, it has nothing to do with Tait. In my submission, this is a sentencing provision and, in my submission, the considerations referred first to in Tait and developed later in Malvaso and - - -
GUMMOW J: Yes, they are State cases.
MS ABRAHAM: Yes, I accept that.
GUMMOW J: Tait was a federal case.
MS ABRAHAM: Yes, I accept that, your Honour.
GUMMOW J: It was construing some federal law in some way because it was a federal case.
MS ABRAHAM: But, in my submission, section 16A is a case – sorry, is a section that is aimed at the principles to be involved in imposing sentence on an offender. It does not, in my submission, involve appellate considerations and what discretion one might exercise separate to the relevant factors on sentencing. In my submission, it has nothing to do with it and, in my submission, if one looks at the circumstances of what my friend has suggested here is the consequence of his argument, it clearly shows that it is inconsistent with determining the sentence of an appropriate severity in all the circumstances of the offence.
GUMMOW J: I am just looking at Tait at page 476.
MS ABRAHAM: Sorry, I only have the ALR version.
GUMMOW J: 24 ALR 476, penultimate paragraph.
MS ABRAHAM: Yes.
GUMMOW J:
Although an error affecting the sentence must appear –
et cetera.
MS ABRAHAM: In my submission, the court there is talking about determining whether there is error in a sentence imposed and the like. Karazisis and cases of the like have talked about various stages of a Crown appeal against sentence. The only stage - - -
GUMMOW J: Just a minute, so where would the relevant federal statute be in this case regulating the matters that you say they were talking about in Tait?
MS ABRAHAM: In my submission, there is not.
GUMMOW J: There has to be – it is a federal criminal appeal.
MS ABRAHAM: I accept it is a federal criminal appeal.
GUMMOW J: What is the relevant statute?
MS ABRAHAM: In this instance?
GUMMOW J: Yes.
MS ABRAHAM: The State statute applies because it has been picked up, in our submission, by section 68. That is, 297 of the Victorian legislation.
FRENCH CJ: In 287.
MS ABRAHAM: In 287, sorry.
FRENCH CJ: Incidentally, does that constitute a conferral of jurisdiction on the Court of Appeal which is picked up in 68(2) of the Judiciary Act?
MS ABRAHAM: That is the power of the Director to appeal.
GUMMOW J: That confers a power on your client. It does not confer jurisdiction on the Court.
FRENCH CJ: What is the source of the Court’s jurisdiction?
MS ABRAHAM: Your Honours, I do not have the complete Act.
GUMMOW J: We have to know these things. I just want to know what the equivalent is of section 24 of the Federal Court Act which is what they are construing.
MS ABRAHAM: Certainly. My learned friend will find the provision, if I could come back to it. I will not ignore your Honour’s question. I will address it. Can I look at the concept of 16A and it being - - -
GUMMOW J: Just a minute. If Tait goes to the efficacy, put it that way, of a Crown appeal, how then does it find its way into sentencing considerations which you say are distinct but it is being translated into them by some adoption in the State courts?
MS ABRAHAM: The concept of double jeopardy that is first spoken about in Tait has developed in State cases, I accept, Malvaso, Everett and the like, summarised conveniently in the Victorian decision in Clarke which has been referred to with approval in this Court on a number of occasions. Those principles have developed as – I know your Honour has said value – it has been referred to as a common law principle, rightly or wrongly, that as a result of the principle certain consequences flow from when a court is exercising its discretion on a Crown appeal against sentence and it is said that they flow at three stages.
In my submission, Tait does not deal with that at the very commencement of the reference to double jeopardy, but the three stages that it has developed into is; taking it into account as to whether there is error, taking it into account if there is error whether to intervene and taking it into account if one is going to intervene to then impose a sentence lower than one would ordinarily impose at first instance purely because of the element of double jeopardy. On my friend’s argument, section 16A can only apply to that latter stage, the third stage, because only at that third stage it has got anything to do with sentencing and that is the court re-sentencing the accused or the respondent.
On my friend’s argument, the consequence is this. My friend accepts that actual anxiety – I am sorry, I will go back a step. My friend says double jeopardy is presumed anxiety and distress. He accepts that actual anxiety and distress were taken into account in this case at both the question of intervention, error having been found, and the question of sentencing and those factors being taken into account with all other relevant sentencing factors, the court concluded that they would intervene and imposed sentence.
In my submission, on my friend’s argument, the consequence is this. As he says, if double jeopardy had applied there would be no intervention, and if there was it would have been a lower sentence because, he says, automatically, in effect, because you are a respondent to a Crown appeal, you are presumed to have suffered this anxiety and distress, ignoring the reality, in this case, of how much she suffered. You presume that you have suffered that, and solely as a consequence of that factor, that by itself reduces what the court considers an otherwise appropriate sentence.
So there is a class of offenders, respondents to Crown appeals that, on my friend’s scenario, get, in effect, a discount on that last stage, a reduction from what the court would think appropriate, at first instance, to something at the lower end of the range. In my submission, that is totally inconsistent with the interpretation of 16A and the command in that section to impose a sentence appropriate in the severity of the circumstances of the offence.
It is inconsistent with focusing on the offence and, when one gets to subparagraph (2), the offender or the person. It is inconsistent, in my submission, with what this Court said in Hili and Jones that one does not have, in effect, a category or a result that is, in effect, predetermined, which is what one has here.
Here, ignoring whether it exists, that is, anxiety and distress – ignoring whether it actually exists, ignoring what weight ought to be attached to it, nonetheless you automatically have a particular result and, in my submission, that is inconsistent with Commonwealth sentencing and inconsistent with the terms of 16A.
BELL J: Just on the question of 16A, and looking at the judgment in De La Rosa, at paragraph [40] on page 333 of the ALR, that is [2010] NSWCCA 194; 273 ALR 324 at 333, one gets Justice Allsop’s view of 16A(1). His Honour places significance on the words “in all the circumstances of the offence” to achieve I think a construction of the provision that accords with the submission you are making. One then goes to the report at 346 and gets at paragraph [108] the submission – the construction of the provision by Justice Basten, the other dissentient, and that is the basis for Mr Tehan’s argument that Justice Basten embraced a broader approach to the resolution of the appeal. Am I right in thinking you favour the construction adopted by President Allsop, in terms of 16A(1), not the result of - - -
MS ABRAHAM: Yes, although I qualify it to this extent. In my submission, the comments by his Honour Justice Basten do not support my friend’s contention in any event. I mean, there are clearly cases that talk about 16A(1) is informed by the factors in 16A(2) and one just, for example, that is referred to in Wong and Leung as an example. One is looking at all the factors, putting them together, to get to the end result.
GUMMOW J: In an appeal court?
MS ABRAHAM: On the re-sentencing.
GUMMOW J: In an appeal court?
MS ABRAHAM: Whichever court it is that is sentencing.
GUMMOW J: In an appeal court?
MS ABRAHAM: Yes.
GUMMOW J: So, how do common law principles have anything to do with it unless they are picked up by a statute.
MS ABRAHAM: Sorry, sir?
GUMMOW J: How does the common law principle have anything to do with it? There was no such creature.
MS ABRAHAM: The common law principle – the double jeopardy had to date or until - - -
GUMMOW J: There was no such creature applying in an appellate structure.
MS ABRAHAM: Your Honour, whether the principle - - -
GUMMOW J: At the moment – just listen to me for a minute, it might be an idea – now, the moment you construe 16A as applying not only to the trial judge, but to the appellate court you are outside the common law. So you then have to say these general words in 16A(1) are apt to bring into that section what were identified as the principles considered in those cases referred to by Justice Allsop at paragraph 43. We have an endless struggle in this Court with statutory interpretation. It is the last thing counsel ever wants to engage in.
GUMMOW J: So therefore it seems to me there is some difficulty in accepting what Justice Allsop said in that passage put to you by Justice Bell.
MS ABRAHAM: In my submission, simply because an appellate court is a court that might sentence, in my submission, that does not mean that one is outside the common law. To date, until this time, clearly section 80 had been used to pick up the common law and apply double jeopardy principles to the Crown appeals against sentence, as was indicated in De La Rosa, Baldock and the like. In my submission, a problem with what your Honour Justice Gummow has said, if one reads Tait, Tait does not develop the principles to the extent - - -
GUMMOW J: You may be perfectly right that Tait goes to whether the jurisdiction should be exercised.
MS ABRAHAM: That is correct.
GUMMOW J: We have not found yet the section which confers the jurisdiction.
MS ABRAHAM: My learned junior is doing that, but with respect - - -
GUMMOW J: I am sure it exists.
MS ABRAHAM: It does.
GUMMOW J: If you come here to argue this sort of case, these are the sorts of groundwork notions that have to be in play.
MS ABRAHAM: I accept that, your Honour.
FRENCH CJ: It might be helpful to look at LK v The Queen over lunch, which is [2010] 241 CLR 177, where the Court was concerned, inter alia, with the jurisdiction conferred on the Supreme Court of New South Wales to entertain Crown appeals against acquittals and its interaction with 68(2). That section, if my recollection is correct, involved both the power of the Attorney-General to bring an appeal and the power of the court to determine it.
MS ABRAHAM: It did.
FRENCH CJ: So the question would arise whether we can exclude the possibility that the jurisdiction of the court in this case is to be found in a combination of 287 and 289 and if that be the like jurisdiction for the purposes of 68(2), whether it incorporates the limitation in section 89(2) or whether that is a matter which goes to power, it could be of some importance because obviously if 68(2) operates, then there is the question as to whether 79 has much to do with this.
MS ABRAHAM: Certainly.
FRENCH CJ: All right. It might be appropriate to adjourn until 2.15 pm.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
FRENCH CJ: Yes, Ms Abraham.
MS ABRAHAM: In answer to your Honour Justice Gummow’s question, I reiterate the answer I gave earlier. In my submission, jurisdiction is conferred by section 287 in conjunction with section 68(2) of the Judiciary Act. I rely on and refer the Court to Rohde v The Queen [1986] HCA 50; (1986) 161 CLR 119; of course, picked up and applied by this Court more recently in LK (2010) 241 CLR 177.
FRENCH CJ: You also have to look to section 10(1) of the Supreme Court Act.
MS ABRAHAM: Supreme Court Act, yes.
GUMMOW J: So it is section 287 plus the Supreme Court Act?
MS ABRAHAM: Yes, the Supreme Court Act gives the court jurisdiction, the Victorian Court of Appeal jurisdiction to hear appeals from the County Court.
FRENCH CJ: It does not say what the appeals are. You have to go elsewhere to find the content of - - -
MS ABRAHAM: No, that is correct.
FRENCH CJ: Am I right in saying there is nothing in the County Court Act itself that deals with appeals on criminal matters to the Court of Appeal?
MS ABRAHAM: That is my understanding. Yes, that is correct.
GUMMOW J: Now, the DPP spoken of in 287 is not your client.
MS ABRAHAM: No, but in my submission, that is dealt with in Rohde and clearly does encompass via the DPP Act, section 9(7) of the Commonwealth Act. It does encompass the Commonwealth Director of Public Prosecutions.
GUMMOW J: Yes, that is right, so you cannot leave section 9(7) out of the equation.
MS ABRAHAM: No, and with respect I did not mean to leave 9(7) out of the equation. I suppose by referring to Rohde and relying on Rohde I was encompassing the 9(7) and the like that is in Rohde.
FRENCH CJ: Does section 289(2) go to the power of the Court of Appeal or to its jurisdiction, for the purposes of section 68(2)?
MS ABRAHAM: In my submission, it is a constraint on the power of the court. There has been some debate this morning about, well, what does double jeopardy mean in this particular section. It is obvious from the cases that the Court has already been taken to that the concept in the context of a Crown appeal against sentence has developed substantially over the years, summarised fairly succinctly in Clarke, the decision of the Victorian court, but importantly relied on by my in this context, primarily for the last aspect, and that is on the re-sentencing phase, that is, in effect, imposing a sentence because of the concept of double jeopardy, or the Commonwealth principle or the value of double jeopardy, imposing a sentence at the lower end of the range. Indeed, a sentence lower than would be considered appropriate at first instance.
So however one describes, with respect, what the concept of double jeopardy is, the consequence on my friend’s argument is that every respondent to a Crown appeal, because of the concept or the value of double jeopardy, ought necessarily to, on a re-sentence, have a sentence imposed that is lower than would otherwise have been imposed at the first instance. It is that that, in my submission, clearly that has been taken away by sections 289 and 290. The Court of Appeal in New South - - -
FRENCH CJ: That is 290(3), is it?
MS ABRAHAM: Yes.
FRENCH CJ: It is not 289 because that goes to whether the appeal should be allowed.
MS ABRAHAM: Sorry, yes, and, indeed, with respect, that is a point we make in our written submissions. My friend has encompassed all aspects of these provisions and the concept of double jeopardy, but relied solely on 16A as the provision that otherwise provides, in effect. Yet 16A, as I have made submissions earlier, says nothing about, in our submission, the exercise of appellate discretion and the like. Section 16A is confined to imposing sentence. So on my friend’s argument there is no basis that the provisions could not be picked up in relation to the other stages of the procedure. We say there is no basis of why they could not picked up in relation to the last stage as well.
KIEFEL J: The fact that section 16A is silent about the question of considerations which might lead to the imposition of the lesser sentence on a re-sentence means what in your submission? Does it mean that there is no inconsistency or do we take the Division in which it appears as dealing with all matters relevant to sentencing and therefore excluding matters which we find in the State statute?
MS ABRAHAM: In my submission, 16A applies to any sentencing of an offender, a Commonwealth offender obviously, be it by first instance or by the appellate court. In my submission, it is not a section addressed to particularly appellate and the fact that there is no reference to that particular aspect, in my submission, is further – in our submission, with respect, it is not actually a sentencing principle, the aspect of double jeopardy that is being referred to by my friend. It is a consequence of an appellate intervention, in effect.
It is not a sentencing principle like general deterrence or proportionality where you throw into the mix, as one is required to do, to come up with the just sentence at the end of the day for the offender, in light of the offender and the offence. It is not that sort of concept. It is, and I used the word before lunch, in one of the cases there is a reference to it being a discount. Now, whilst that might not be the correct term, it nonetheless is a concept which – for what developed into a practice whereby, in effect, after the sentence the court considered what was the appropriate sentence, it then was reduced to something lower, the lower end of the range for that factor alone. That, in my submission, is not a sentencing principle.
In my submission, the court in De La Rosa, the majority of the court, were clearly correct in concluding that there was nothing in 16A(1) or (2) or (2)(m) to encompass any concept of double jeopardy. In particular, there they considered that it was presumed anxiety and distress. In my submission, her Honour Justice Simpson was perfectly correct when she concluded that the reality one is dealing with, if one looks at the section itself, the person and one is dealing with, in (m) in particular, the section is:
the character, antecedents, cultural background, age, means and physical or mental condition of the person –
One is dealing with particular attributes of the particular offender that is being sentenced. As her Honour Justice Simpson quite rightly points out, unlike or contrary to the comments by the President, Justice Allsop, the presumption is not a reflection of the reality necessarily and this case is a good example because on my friend’s argument the reality was not good enough when taken into account in the appropriate way on sentencing to achieve the result that he contends is appropriate. Something more had to be achieved and it could only be achieved by an artificiality which had no bearing at all to the reality of the situation.
FRENCH CJ: Incidentally, when one looks at factors (g) to (j), (m), (n) and (p) in 16A(2) does that suggest a rather broad understanding of the concept of “circumstances of the offence” in 16A(1)?
MS ABRAHAM: I do not quite follow what - - -
FRENCH CJ: Well, 16A(1) speaks of a “severity appropriate [to] the circumstances of the offence”. Now, you can say, well, that simply means what was done and - - -
MS ABRAHAM: The offence per se, yes.
FRENCH CJ: But there are circumstances personal to the offender which are mentioned in 16A(2). Does that feed back into our understanding of the general rubric “circumstances of the offence”?
MS ABRAHAM: In my submission it does and if one looks at even this Court’s more recent decision in Hili and Jones and, indeed, this Court’s decision in Wong which talks about the, in effect, subsection (2) being factors relevant to “take into account” that sort of informs subsection (1), but what it does highlight, with respect, in my submission, is that what one is taking into account is factors relevant to the offence and the offender, no presumptions but the offence and the offender and with no particular weight being attached to it in the legislation.
So 16A does not say you have to give more weight to this or more weight to that, unlike the double jeopardy, as it is being relied on by my friend, which suggests that particular weight must be given to the concept of double jeopardy to reduce the otherwise appropriate sentence purely on the basis of the fact of presumed distress and anxiety, regardless of any other factual or sentencing principle that might apply.
HAYNE J: But you do not read (2) as a subset of (1), do you, in 16A?
MS ABRAHAM: Not as a subset, no.
HAYNE J: Section 16A(1) and (2) are an accumulation of things of which account must be taken.
MS ABRAHAM: Yes.
HAYNE J: Subsection (2) is set apart from (1) perhaps in many respects but at least in the respect that (2) is limited to such of the matters as are relevant - one filter - and as are known to the Court - another filter.
MS ABRAHAM: Which is what clearly the majority relied upon, amongst other things, in De La Rosa. The relevant and known to the Court, in my submission, does require some material – I accept in Weininger one does not necessarily talk about evidence, per se, but there needs to be some material before the Court. One is not talking about presumptions and that is the argument my friend is putting that it is a presumption.
GUMMOW J: Looking at Justice Simpson’s reasons, what does not seem to have been put to the New South Wales court in De La Rosa was the construction of section 79 to reach the same result but by a direct route, namely, looking at Part IB of the Crimes Act, one asks oneself, does that fall within the otherwise provided notion in section 79 which is, I think, said in the cases to carry with it notions seen in section 109 cases with a metaphor covering the field? Does it make a comprehensive provision? Does the law of the Commonwealth make a comprehensive provision on the subject so that there is no occasion to pick up any State law? In other words, you construe Part IB as not including the considerations dealt with in 287 of the State law. You do not need to pick up the State law to knock something out. Do you see what I mean? It is not there in the first place.
MS ABRAHAM: Yes.
GUMMOW J: And it is all nice and simple.
MS ABRAHAM: She did not address section 79.
GUMMOW J: I know.
MS ABRAHAM: Clearly she did not address section 79.
GUMMOW J: But then there is talk about inconsistency which is itself not quite adequate without encompassing notions of covering the field, making comprehensive provision with an implicit negative that that is it. As far as federal law is concerned, that is it.
MS ABRAHAM: The issue with it clearly covering the field in Part IB, it is not suggested that Part IB is exhaustive. Indeed, 16A contains obviously common law factors in sentencing, or as against a background of common law factors, as this Court - - -
GUMMOW J: Section 16A has to be comprehensive, I would have thought.
MS ABRAHAM: Section 16A has been applied against a background of common law sentencing principles, yes.
GUMMOW J: I know that. We will not go there again.
MS ABRAHAM: Clearly, it does not encompass this, with respect, this being double jeopardy.
BELL J: Before we depart from De La Rosa, just for my own benefit, can you assist me with this. In Justice McClellan’s reasons, he refers to the issue as having been directed to the 16A(2)(m) question at paragraph [164] on page 358 of the appeal. Is that a fair way to describe the way the issue was presented?
MS ABRAHAM: Yes. I am just going on memory. The focus of the argument from the respondent’s point of view was that it was (m) that was the principal hurdle, so to speak, that stopped these provisions being picked up.
BELL J: Thank you.
MS ABRAHAM: As we say in our submission, the reasoning of the majority in that court is to be preferred and the court in Bui is correct to apply it. My friend’s argument has been based on presumed anxiety and distress and he has not suggested any other meaning to the phrase “double jeopardy” as it appears in 289 and 290 and the like. It is in that way that it has been interpreted, as the Court is well aware, in JW, Karazisis and like cases. Whether one phrases it like that or whether one looks at it in terms of the fact that a respondent is again facing sentence, which indeed might be a harsher sentence, in my submission, all JW has done is looked at, well, what does that mean in reality? What is the consequence of having to face a sentence again? What is it that we have in the past taken into account, obviously, given the underlying notions of fairness and the like that underpin the double jeopardy?
KIEFEL J: But that is just to focus upon the effect upon the person subject to re-sentencing.
MS ABRAHAM: Yes.
KIEFEL J: Whereas the notions, as has been said earlier today, notions about double jeopardy are based on a broader principle or set of values than that.
MS ABRAHAM: They are, with respect. As I said, it appears what the court has done in JW is consider – given that underlying the notions of fairness and the like, what the court has been concerned with is the fact that you are again facing the prospect of being sentenced, in a sense, to a harsher sentence. What is it that that means? That is where the court in JW analysed a number of the authorities – my friend has taken you to it and I do not propose to do that – which refer to an anxiety that one suffers or distress that one suffers by having it, in effect, hang over your head and it is why, with respect, that the court no doubt came to that conclusion as to what effect in a particular case. As her Honour Justice Simpson - - -
KIEFEL J: I am just not sure that that is terribly helpful in terms of statutory construction. That is not really what the Parliament is saying to the courts in relation to the appeal.
MS ABRAHAM: Parliament is saying that you are not to take into account double jeopardy, in effect, in a shorthand way. The issue then becomes, what has been interpreted as double jeopardy in the context of a Crown appeal against sentence?
KIEFEL J: Probably what you said before is the closest – appears most clearly in subsection (3) of section 290. An effect might be not to give the higher sentence which would otherwise be appropriate.
MS ABRAHAM: Yes. As a reality, the practical effect was that one got a lower sentence than would ordinarily have been appropriate. So one, in effect, received a reduction.
KIEFEL J: So, understanding that, does not that look somewhat inconsistent with the direction in section 16A(1) of the Crimes Act which is a statutory requirement to make an order that is of severity appropriate in all the circumstances or do you say that it is perfectly consistent with that because the discount does not operate?
MS ABRAHAM: Yes. In our submission, to discount it would in fact be inconsistent because you are not then imposing a sentence of a severity appropriate in all the circumstances of the offence. To, in effect, reduce a sentence arbitrarily based on whether it be a presumption of anxiety or some other phrase, in my submission, is the exact opposite of what one should be doing and, in my submission, if one considers – I know in a different context, but this Court’s comment in Hili and Jones when there was the suggestion there of a norm and this Court commented that 16 - - -
KIEFEL J: What you are seeing the State Act doing there is operating to prevent an overlay being given to section 16A(1) by an appeal court on re-sentence, that is, an addition of some other factor which is not otherwise identified in sentencing principles in section 16A.
MS ABRAHAM: Yes. We say it is not relevant to sentencing principles, it is not in 16A. It had been applied to date, one assumes, because of section 80 of the Judiciary Act. It had been applied to Commonwealth appeals and, in my submission, it no longer does apply and there is nothing in 16A that would prevent the provisions being picked up and applied. Those are my submissions.
FRENCH CJ: Thank you, Ms Abraham. Yes, Mr Solicitor.
MR McLEISH: If the Court pleases, there is very little left for me to address your Honours on, but I wanted to confine my submissions to the application of section 80 of the Judiciary Act which it is submitted is the appropriate section through which the Court ought to determine whether or not principles of double jeopardy remain applicable in federal jurisdiction.
The starting point, leaving aside the question of jurisdiction which my learned friend, Ms Abraham, has taken your Honours through this afternoon, is that section 16A accommodates judicially developed
sentencing principles, as your Honours have heard and as the Court held in Hili [2010] HCA 45; 242 CLR 520 at paragraph [25] and in accommodating judicially developed sentencing principles through language such as “severity appropriate in all the circumstances of the offence”, the provision 16A is accommodating the common law it is submitted.
In other words, section 16A does not stand in the way of common law principles of double jeopardy, including those as articulated in Tait and developed since and in that regard, it is submitted that the common law principles have developed as part of a single common law both in Tait and Everett and subsequent cases. So apart from not standing in the way of those principles, we would also submit that section 16A does not incorporate them or mandate the application of those principles, nor does it constitute a code, it is submitted, and that is consistent with Hili and with the cases that precede it in which principles other than those set out in section 16A have informed the exercise of a sentencing discretion.
The principles, themselves, of the common law are left to section 80, it is submitted, to apply or not and that is the traditional way in which Commonwealth statutes, of course, interact with the common law. It is submitted that section 16A does not purport to treat the common law in any different way to that which section 80 provides for. Section 80, of course, picks up the common law as modified by State statutes and it is that mechanism by which sections 289 and 290, in particular, of the Criminal Procedure Act are applied in relation to federal offences.
In respect of inconsistency, again that ground has been amply covered but we make two general points. The first is that section 16A is general in its application to sentences and at whatever stage of the appellate or judicial process makes no reference specific to Crown appeals. So it is not apt to provide any inconsistency with the specific provisions of the Criminal Procedure Act which address that particular subject. Secondly, that nothing in the State provisions precludes the sentencing court from doing anything required to be done in section 16A and that is demonstrated by the reasons of the Court of Appeal, in this case, and, in particular, by the consideration which was given to the actual mental condition of the person which is, of course, required to be examined under paragraph (m). Those are the submissions on behalf of the Attorney. If the Court pleases.
FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Tehan.
MR TEHAN: Your Honours, in our submission, it is not correct to say that double jeopardy sentencing is a mere discount. It is a matter of principle. The principle is encapsulated in the statement of Justice Isaacs in Whittaker. It has been repeated in many cases. Reference has been made to Tait v Bartley. In that case, the Full Federal Court said:
a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across “time-honoured concepts of criminal administration” . . . A Crown appeal puts in jeopardy “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal” . . . The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court.
Now, that is the matter of principle which has – in other words, you do not put a person up again. That is consistent with what the courts say earlier when they state that Crown appeals have no part traditionally in the administration of criminal justice.
That is the principle, and it is wrong to describe it simply as a discount. It has various consequences. One consequence is that it leads generally, where different sentence is imposed and re-sentencing is set upon, to a sentence towards the lower end of the range applicable. If, accepting that Tait and Bartley applied to the Federal Court, then either when section 16A came in, in 1990, either section 16A absorbed those common law principles as they applied to Federal Courts, or they repealed it.
Now, it may be that if the view is taken that section 16A does not matter, that Tait stands for the proposition that Federal Courts do apply common law principles of double jeopardy upon Crown appeals, then that is the end of the matter, and one does not have to have resort to issues concerning section 68 and section 79.
In our submission, in either event the appellant in this case should succeed. We have put our argument on the basis that section 16A absorbed those common law principles and we seek comfort from what this Court has said concerning the absorption of common law principles within section 16A from statements in this Court in Johnson and Hili, to which we have referred in our argument this morning. If the Court pleases.
FRENCH CJ: Yes, thank you, Mr Tehan. The Court will reserve its decision. The Court adjourns until 10 o’clock tomorrow morning.
AT 2.46 PM THE MATTER WAS ADJOURNED
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