Hall v The Queen [2013] HCATrans 316 (13 December 2013)

Last Updated: 20 December 2013

[2013] HCATrans 316

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S121 of 2013

B e t w e e n -

GARRY MICHAEL HALL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2013, AT 12.04 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court please, I appear for the applicant with MS R.W. BURGESS and MS J.L. ROY. (instructed by Legal Aid Commission of NSW)

MR J.H. PICKERING, SC: Thank you, your Honour, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Game.

MR GAME: If the Court pleases. I will come to the statute and the judgment in a minute but if one goes first to page 112 of the application book, at lines 30 and following there is a discussion about how far the case is actually going to go. The court makes it clear that all it is considering is whether or not there was a refusal, so that discretionary questions under section 92 were not to be addressed and if there was a discretion under section 29 and the nature of any benefit was all put to one side. That is how the case was argued but it is not how the judgment is delivered.

Now, if I could take your Honours to section 92 first. Sorry, there was an affidavit. If hardship was relevant there was an affidavit on the appeal that was never read that went to hardship. That is an affidavit of the respondent, Mr Hall. Now, if I go to section 92 first, section 92(4) is an unusual provision. Looking above it - - -

FRENCH CJ: Sorry, what page are you taking us to?

MR GAME: I am taking you to the bundle of authorities and the bundle of legislation you should have, your Honour.

FRENCH CJ: Yes, and what tab number?

MR GAME: Tab 10. Section 92 is the provision under which the appeal was brought and at subsection (4) – it is an unusual provision because if you look at the ones above it, those provisions for an appeal by an individual are brought under the Criminal Appeal Act. Subsection (4) seems to be a purely freestanding provision and it seems to contain a discretion and it relates to different kinds of orders.

It also does not seem to manifestly have any power of remittal, although that may be implied. But looking at subsection (4) against a refusal, so it is a limited appeal as well, so it is not an appeal that extends to, shall I say, a quantum assessment but only to a refusal. The question – the only question which was addressed in argument was whether or not there had been a refusal, and I will come to that in a moment, but that is where the appeal stood.

For example, the so-called reliability of the admissions was not addressed in oral submissions for the reason that the Chief Judge said it was going to one side and they were not on any account going to undertake that task. We see that at the bottom of page 112 of the application book. Nor would you get to, for example, issues such as Briginshaw v Briginshaw in this exercise. Now, if one goes back to the judgment at - - -

GAGELER J: Precisely what was the issue you say was before the Court of Criminal Appeal? How do you define it?

MR GAME: The only issue that the court was deciding was whether for the purposes of section 92 there had been a refusal by the judge to make an order.

GAGELER J: This was a preliminary hearing, was it? The answer to that was one way then - - -

MR GAME: Yes, potentially it goes back, but nobody addressed whether or not it could go back, by the way. That raises a separate problem. Incidentally, there do not seem to be any cases about section 92(4) but it was assumed that it would go back. But if it did not go back, then the question of what the discretion was – this might seem factually about a small case, your Honour, but this case decides a whole series of principles that have not been decided in any other cases, so it is quite an important case. It was brought as a test case by the DPP and it was expressed as such, but the court said, well, we are just going to determine this question.

GAGELER J: Where do they say that, that we are just determining this question? Where is it said most clearly?

MR GAME: Well, there is that proposition that I just took you to at lines 40 to 50 on page 112, but if you go to the judgment itself, back at page 25 in paragraph 18 about line 25, that “erred in the construction”. That sentence itself suggests that the court understood that it was a limited exercise that was being conducted. Now, when one goes - - -

FRENCH CJ: The substantive question was whether the obligation under section 29(1) had been enlivened.

MR GAME: That is the question.

FRENCH CJ: By reference to the finding in relation to the $4,100.

MR GAME: That is right. The question was whether or not the finding about the 4,000 meant that the discretion was engaged. That is how the Crown put their submissions which you see at paragraph 16 on page 24. Our point was, and is, that the tainted property was dealt with completely separately under a separate application on page 15. That was dealt with quite separately and the legislation – sections 13, 18, 24 and 29 taken together make it clear that section 18 can be parked. You do not have to bring in the tainted property at all. In fact, there is a discretion in 29(3) that you may.

So the court then considers the question of construction and, as I say, even the question of whether or not there was a discretion in 29 itself was parked as an issue because they said we do not get to that. They said that in the exchange to the parties. So it was as if the only question was the judge had refused to exercise his discretion. Then when one goes into the substantive reasons, the points that we pull out of them, first of all, as I say, whether or not there is - the nature of the appellate power in section 92 whether or not it contains a freestanding discretion, given the limited nature of the appeal. Then when one goes to paragraph 38, whether or not Briginshaw v Briginshaw, and I should say section 140 - - -

FRENCH CJ: I am sorry, just let me try and tie down what is being said in relation in section 92 and I am going to the ground 2.1 in your draft notice of appeal. As I understood it, you say simply the fact that they went into the exercise of the power under 92(4), and that is how you frame it here, having indicated that they were not and you not having had an opportunity to put a submission to them about that - - -

MR GAME: That is correct.

FRENCH CJ: The response seems to be that you had said everything you wanted to say below.

MR GAME: We did not say anything. We only spoke - - -

FRENCH CJ: I am just looking at what the respondent is saying.

MR GAME: But we only spoke for a few pages and on a very confined issue.

FRENCH CJ: That is how you characterised what the respondent is describing at paragraph 10 of its submissions at 120. I just want to nail down precisely what the complaint is. The complaint is that they went into 92(4) at all, having regard to what had been indicated in the course of argument.

MR GAME: That is correct. Yes, but that is only one of the things we say they went into.

FRENCH CJ: I am looking at it in terms of your ground of appeal.

MR GAME: Yes. Your Honour, but what we say in the ground of appeal is that that ground goes on to say:

and, if there was sufficient information for an order to be made, whether this should be done by the Court –

that is to say, whether they should go on and make the assessment themselves when they said that they would not, and they made it perfectly clear that they would not engage in that exercise. So it is not just not getting to say things, it is getting to put the argument about what is to be extracted from this record of interview in which a man gives a whole series of - - -

FRENCH CJ: Well, the bottom line is you say they did not allow you to be heard on, first of all, the nature and extent of discretion under 92(4).

MR GAME: Yes.

FRENCH CJ: Secondly, whether they had enough information for any order to be made, and thirdly, whether that should be done by them or the matter be remitted to the District Court.

MR GAME: That is correct, and whether or not there was a discretion in section 29.

FRENCH CJ: Well - - -

GAGELER J: Did they not deal with that?

MR GAME: They did deal with it but they said that they would not. Sorry, I will put - - -

FRENCH CJ: You are operating within 2.1 at the moment.

MR GAME: That is correct, your Honour.

FRENCH CJ: Let us contain ourselves to what is there otherwise we will lose track of what you are saying.

MR GAME: Sorry. That is correct, what you have put to me is correct.

GAGELER J: Well, so far as you say you were not heard on questions of law, do you not have to convince us that you have a good point?

MR GAME: Yes, your Honour. The denial of procedural fairness relates to whether or not they should have engaged in the discretion under 92 in the making of the assessment and those are qualitative questions and those are the point - so they go beyond just questions of construction but I am about to go on to what I say are the substantive legal issues that emerge.

The denial of procedural fairness is just the first step from our perspective in terms of this application and, as I say, quite irrespective of the denial of procedural fairness, we say important issues arise in the application for resolution, starting with whether or not there is a discretion in section 92 and what the nature of it is.

Secondly, does Briginshaw v Briginshaw or its statutory formulation in section 140 of the Evidence Act which is mandatory apply to orders of the kind made under section 29? That is why I went back to paragraph 38 at page 32 of the application book. Detailed submissions were made in relation to that issue in the written submissions, even though the court said it would not go into it. There were detailed submissions.

But my point is that that question – there are civil penalty cases that say Briginshaw and section 140 applied to those kind of cases. Section 140 has mandatory terms that applies both to the consequences of the conduct and the consequences of the finding. Section 140 speaks to that.

It is said against us that this is only limiting it to the actual assessment. Nobody suggested it just went to the assessment. It is applying to section 29 in its totality, both whether or not there was a benefit and the making of the assessment. So that is a question of general importance. That question by this judgment has been determined adversely and it has been determined adversely on the basis that there are facilitative provisions in sections 30 and 30A, I think it is, of the Act.

Now, we say the facilitative provisions make no difference to the need for cogent evidence to establish these matters, and they involve critically conduct committed at any time during a person’s life and criminal drug trafficking conduct as a result of which there is a benefit.

FRENCH CJ: Now we are looking at 2.2, are we?

MR GAME: That is right.

FRENCH CJ: Thank you.

MR GAME: It is paragraph 38 and section 40 in Briginshaw. So that paragraph 38 applies to 2.4 and there is a reliance on one case called Fagher and there were actually dissenting comments of Justice Allen but in relation to it being a “rough and ready” exercise. But we say that it is manifestly clear that a stringent standard does apply. This is now the binding decision on that subject and we say it is wrong on that subject.

GAGELER J: Mr Game, what about paragraph 43 of the reasons for decision at page 34? That seems to be a fairly straightforward fact-finding exercise on the balance of probabilities that at least prima facie seems to emerge fairly clearly from the transcript.

MR GAME: Well, your Honour, actually if you examine around that it does not make sense because the $50 might have to come out of his pension for those things to work. I will not go through the pages but that $20 – if that $20 works, then he is only making $20 a day out of drug sales and the $50 would be different. I would have to go through the record of interview but time and time again he says he has a poor memory. He has been on an invalid pension for 15 years.

The record of interview is close to incoherent and nobody ever contemplated when this record of interview took place that it would be used for making an assessment of this kind. But, your Honour, the importance of it is not just this case. The importance of it is with respect to – what has happened is that section 29 is now being engaged by prosecutors as a matter of – I do not know whether as a matter of course, but all the time, so that the issues raised by this case have become real practical day-to-day issues for judges who sentence then being confronted with such an application.

If you make a record of interview and you say “I have been selling drugs for 30 years” then you might get an order against you for $20 million. I mean, really, one has to actually look at what is being contemplated by paragraph 38 of the judgment which is that the facilitative provisions actually make it easier to establish it and you do not need to have the cogent and clear proof of the kind contemplated by section 140(2), and we say that is wrong in principle.

Our next point of principle is this. That if you go to paragraph 40 in the judgment, then what is being said is that there was a refusal because the $4,110 necessitated that assessment, but as I showed you, that was dealt with separately and it can be dealt with separately under the legislation. Under section 13 you can ask for either or both. They asked for both, but you did not have to consider the $4,110 again and there was certainly not a refusal of jurisdiction by failing to carry a notional exercise out in respect of that. So that is itself, in our submission, a significant error of principle.

I showed you how the prosecutor put that back at page 24, paragraph 16. That was how they put their case. There must have been a failure to exercise jurisdiction because of the $4,110, but if one looks at section 29 which is the section – first of all, if one looks at section 13(2), one sees one can apply for either or both. If one looks at section 29(2) and (3), it is clear that it either does not have to be taken into account but it can be taken into account and if it is then it sets out how it is done.

Once the $4,110 went, you would be hard pressed to show that there was a refusal to exercise jurisdiction and the judge made his own assessment of the quality of the information and thought it was thoroughly unreliable.

GAGELER J: I am sorry, I am not really understanding this reference to refusal to exercise jurisdiction.

MR GAME: Well, I mean a refusal – I am using the language of section 92 and I will just qualify that language, your Honour:

refusal by a court to make a drug proceeds order - - -

GAGELER J: Well, that is a refusal to do so on the merits, is it not?

MR GAME: Yes.

GAGELER J: It has nothing to do with jurisdiction.

MR GAME: Sorry, I will withdraw that, your Honour. Yes, but what is being said is that because of the $4,110, that necessitated the making of an assessment. That triggered the necessity to ascertain the benefit. We are saying that there is no such wantonness in the judge’s reasons. He had already forfeited that, and I am sorry I introduced the language of jurisdiction but that is what I mean in this context was that there is nothing to say that the assessment in respect of the $4,110 triggered anything.

Then finally, we say that there is a question, and we accept it is our most difficult point, but we submit that there is a discretion in section 29 itself. That is one of the other substantive points that was decided against us.

GAGELER J: You say “must” does not mean must.

MR GAME: That is right. We say it does not mean must because that would override, in effect, the forfeiture provisions for tainted property if they could be described as proceeds and that section 29 brings into account tainted property, say under (3), which may or may not be taken into account which brings in its own discretionary factors. So, if I could just summarise the position, the denial of procedural fairness is just one step in this proposed application.

We say that the questions of general importance I have just outlined relating to section 92 itself, Briginshaw v Briginshaw, the idea that a finding of tainted property itself triggers the jurisdiction and the discretion, if there is a discretion, in section 29 are all raised by this case. Yes, it is about a tiny sum of money, but this is the case that has decided those issues and this is the only case.

Funnily enough, after all this time, this legislation was passed in 1989, the relevant provisions were only proclaimed in 2005 but there have been no cases and measures and practice of it are now being brought into operation. If the Court pleases.

FRENCH CJ: Thank you, Mr Game. Yes, Mr Pickering.

MR PICKERING: Thank you, your Honours. Your Honours, can I just take a step back in relation to procedural fairness. The respondent appealed, pursuant to 92(4), and sought for the Court of Criminal Appeal to make the orders that they ultimately made. When it became time obviously there were full written submissions submitted by the respondent, who of course was the applicant in the Court of Criminal Appeal, seeking such an order. The applicant in this Court had the opportunity to do detailed written submissions which they did.

When the matter came before the Court of Criminal Appeal, it was in that context that the respondent was still seeking for the court to make the orders that they ultimately did. One then has to look at the development of how that happened before a Bench of three judges. If I could take your Honours to first page 110 of the book and around line 30 and you will see that there whilst I was appearing for the applicant, his Honour Justice Button raised squarely with me the question of whether there was also a discretion under 92(4) and that opened the question clearly for the applicant in this Court to seize on something specifically actually raised by one of the judges of three.

Then if you look at the top of 111 at line 1, it was one of the judges of three, being Justice McClellan, that raised with myself whether the court had the power to send it back and I accepted that there was an inherent power to send it back. But most importantly, if you look at line 20 of what I said, I accepted that there was “a possible option” but:

clearly I –

on behalf of the applicant –

have asked for this Court to make the order –

but I accepted that there was a “utility” that the court could take that option. But the applicant in the Court of Criminal Appeal had not in any way moved from its position that it was seeking the court to make an order. It accepted that there was a possibility for the court to move for remittal.

Now, if I can then take your Honours to page 113 of the application book at around about the – the first line in the application book. This was then an opportunity for counsel for the respondent in the Court of Criminal Appeal to argue their point. All his Honour Justice McClellan – who is only one judge of three at this point – has said that:

that’s not something that I am presently inclined to have this Court do.

That is in relation to actually going through the process of making the final determination of what the relevant amount was. Now, when one considers procedural fairness, it is not unusual when you are appearing before a judge, let alone a panel of three judges, that a judge may express a preliminary view, a judge may express a view that it is contrary to your case, a judge may express a discouraging view. It does not mean that you are prevented from making submissions in accordance with what was being sought in the Court of Criminal Appeal.

Indeed, Ms Burgess did make, over the next few pages, the heart of what her submissions were consistent with the written submissions, that being that ultimately, and it still really remains the applicant’s case in this Court, that the evidence was just completely insufficient to make such an order. Ms Burgess had the opportunity and did raise the points about Briginshaw. She spoke to the fact that she had raised the discretion in her written submissions and there was an opportunity to be heard.

The mere fact that the court had expressed a preliminary view, one – I should say, one judge of a court of three judges had expressed a preliminary view that he was inclined to send it back to the District Court rather than make the order itself, does not suggest or does not establish that there was actual procedural unfairness. No one prevented Ms Burgess from making submissions. There is no reference to a transcript of where she was actually cut off from making the submission.

Indeed, if I take your Honours back to page 110 and the part I referred to you of where Justice Button raised some of these issues, including flat out the discretion about the affidavit of the Housing Commission and the penniless nature of the applicant, there is no suggestion that counsel for the respondent at that stage in the Court of Criminal Appeal could not have taken that and run with it.

Ultimately, it was the decision by counsel, reading one judge of three, to seemingly take the view that the court was not going to ultimately in their judgment, despite the fact that the Crown had not removed its request for the court to make the order itself, to not make further submissions in relation to it. They are my essential submissions in relation to procedural unfairness.

Your Honours, can I take you to some submissions in relation to the question of discretion? The fundamental different nature between section 18, looking at the confiscation.....forfeiture as opposed to the drug proceeds order and why the word “may” is used in relation to the confiscation in section 18 and the word “must” is used in section 29, is that you are looking at very different concepts. Section 29 is all about benefit. Section 18 is about tainted property.

There is a very good reason why there is a discretion under section 18 for tainted property, and a classic example is someone who grows a few cannabis plants in their house and the house in theory becomes tainted property. It would be an anomaly if there was no discretion to simply seize the house as a confiscation. A benefit is in a completely different situation. That is, someone has actually been established to have made a benefit from the crime. The benefit obviously is defined in section 30 of what has to be done in relation to it.

That benefit is different in nature to tainted property because it is just purely benefit. It is true that sometimes there could be a slight overlap between section 18 and section 29, although it would be very unusual if, say, there was a clear just straight benefit as part of the tainted property in section 18 that the court would ever use a discretion in order not to call for that property, but they are two different concepts. Clearly, Parliament, in enacting a “must” in section 29, did not want there to be a discretion for people that actually obtained a benefit as opposed to tainted property.

FRENCH CJ: Yes, please go on.

MR PICKERING: Your Honours, could I also take your Honours to application book, page 34, which contains paragraph 43 of the judgment, and in many ways can I say that this deals with the ground of appeal in relation to the balance of probabilities and whether it was applied.

FRENCH CJ: Well, I do not think we need to hear you on the Briginshaw issue.

MR PICKERING: Thank you. I just wanted to point out that his Honour, of course, did indicate that he had made such a finding on the balance of probabilities.

FRENCH CJ: Yes.

MR PICKERING: Your Honours, dealing with the question of 2.5 of the appeal, that being on the sufficient information, your Honours, you can only inform yourself of this particular section by considering what the purpose and the evidence is in this section. It is always going to be a difficult matter to actually obtain significant evidence about the benefits to be obtained, but in this particular case, there was a record of interview that outlined a series of admissions in relation to the benefits that the applicant had obtained in relation to his drug dealing.

More significantly, the actual indictment that initially he had pleaded guilty to and been sentenced to was spread over nearly a 12-month period. Even in relation to that, it was an acceptance in the plea that he was sentenced for that this was someone involved in supplying on an ongoing basis. So when one considers whether the admissions were reliable, it has to be taken into account that, of course, he pleaded. He did not seek to dispute those admissions to being an ongoing dealer over a considerable period of time.

So there was a basis to make the findings that his Honour Justice McClellan did and ultimately that does just come down to a factual determination by the Court of Criminal Appeal and the material it had before it to consider it.

Looking to the aspect of the $4,110 that had been forfeited, it is the respondent’s submission that the applicant really miscast how the court did that. It was not simply just saying, well, because section 18 was engaged that suddenly that therefore 29 was established. It was because the very nature of that $4,110 that were forfeited in the facts of this case meant that his Honour had to have been satisfied as a matter of law that there was some benefit.

He did not consider that, his Honour Judge Conlon, but as a minimum if he actually engaged in the process of section 29 he would have had to have found as a minimum that there was that $4,110 as a pure factual finding. That was the significance of that finding in relation to the forfeiture, not the mere fact that section 18 had been established itself. They are the respondent’s submissions.

FRENCH CJ: Thank you, Mr Pickering. Yes, Mr Game.

MR GAME: If your Honours could look at the application book - - -

FRENCH CJ: At page?

MR GAME: Page 112, Mr Pickering is stopped by the court from making submissions about discretion. It is not just one judge. Then Ms Burgess at the very end says:

your Honours are not going to entertain the other argument –

That is at line 28, so it is not as though just one judge is saying it. It means that one did not get into the issue of discretion at all under section 92 and feeding into section 29. So that is a significant matter, in our submission.

GAGELER J: What would be said on discretion, Mr Game? What would be the essential point?

MR GAME: The essential point would be that section 92 – speaking of section 92 is that section 92 is a limited power of appeal and that it contains a discretion across the board to whatever kind of application it is, so that a submission as to hardship could actually work in the Court of Criminal Appeal.

GAGELER J: Are you saying that a submission as to hardship would have been made?

MR GAME: Yes, your Honour, and there was an affidavit on before the court as to that. As I said, whether there is a discretion in section 29 was not heard, but I accept that there were written submissions dealing with that. Now, it is said that there is no overlap between tainted property and section 29 but it is that very overlap which is relied upon to assert the refusal.

This is not strictly a matter of reply because you did not call on my friend in respect of it, but if your Honours look at 140(2), that informs the satisfaction under section 140(1), so that the finding on the balance of probabilities does not do away with the point (a) and (b). The decision stands for more than just this case. Those are our submissions in reply.

FRENCH CJ: Thank you, Mr Game.

In our opinion the approach taken by the Court of Criminal Appeal to the construction and application of section 29 of the Confiscation of Proceeds of Crime Act 1989 (NSW) is not attended with sufficient doubt to warrant the grant of special leave. Neither, in the circumstances, do the prospects of success of the ground relating to want of procedural fairness and the asserted failure to apply the Briginshaw standard warrant the grant of special leave. Special leave will be refused.

The Court will now adjourn to reconstitute.

AT 12.39 PM THE MATTER WAS CONCLUDED