Kentwell v. The Queen; O'Grady v. The Queen [2014] HCATrans 113 (16 May 2014)

Last Updated: 20 May 2014

[2014] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S13 of 2014

B e t w e e n -

PHILLIP CHARLES KENTWELL

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Sydney No S14 of 2014

B e t w e e n -

ANDREW O’GRADY

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2014, AT 12.02 PM

Copyright in the High Court of Australia

____________________

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant, Kentwell, with MS J.L. ROY, and I appear for the applicant, O’Grady, with MS G.A. BASHIR. (instructed by Legal Aid Commission of NSW)

MR J.H. PICKERING, SC: I appear for the respondent in both matters. (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J: Counsel, I have had both cases called together. Mr Game, do you have a view or submission about whether we should deal with them together, deal with them sequentially? How do you say they should be dealt with?

MR GAME: Your Honours, the point is a common point, and the only thing is that I might just need a few minutes extra to pick up some specific aspects of the O’Grady case, but if your Honours were possibly a little indulgent with the 20 minutes I expect I would finish them easily within 30.

HAYNE J: Mr Pickering, do you have any contrary view?

MR PICKERING: No.

HAYNE J: Yes. Yes, Mr Game, whether it is indulgence or not, you may have 30.

MR GAME: Thank you. I might not need it, but anyway. Until Abdul, which was decided on 6 November 2013, section 10 of the Criminal Appeal Act, which is a common provision, was held to have a discretion which is unfettered, and of course it dealt with cases of very short delay and it would deal with cases of very long and the discretion could actually be exercised by the Registry. In a short delay case, for example, the merits of the case would be irrelevant. In a long delay case they may assume much more significance – and those provisions have worked effectively for a very long time on the basis that the discretion is an unfettered one.

Now, these decisions, particularly starting with Abdul, have placed a substantial fetter on the exercise of the discretion and not only that but they are now applied in respect of conviction appeals – we have put on a case called Miles – and not only that, in respect of conviction appeals, just as here they said to, as it were, drag in section 6(3), which is the exercise of original jurisdiction in conviction appeals, they said to drag in the proviso. So, it is actually a sea change in terms of procedure and we say it gets in the way of substance, and I will endeavour to show why that is the case shortly.

HAYNE J: Well, the proposition that the discretion was unfettered is itself a proposition, I would have thought, of some doubt.

MR GAME: But, whether or not that is the case, your Honour, it is an important question and although this comes as a procedural question, what you end up with is quite important because if you do, shall I say, a virtual section 6(3) exercise you are at the, shall I say, the preliminary stage, what is called a “summary glance”, you are having to show that a lesser sentence should be given, and I will actually show shortly how it falls apart, first in Kentwell because of the – when one looks at the natures of the errors and what would be involved in the exercise, so whether or not that proposition that it is an unfettered discretion is correct is.

I accept it is a large question, but the nature of that discretion has emerged as a matter of some importance and it emerged as a matter of some importance in the context of 30 or so cases where people have, in most of those cases, have been refused legal aid originally, and then the Legal Aid Commissioner had to go back and revisit the cases because they were given adverse merit advices, and all three of these cases are such cases and the applicants had nothing to do with the fact that their cases did not get heard, they were refused aid to have them heard. Now, so if I could just take your Honours to Abdul briefly to show how this is – if you go to paragraph 40 Justice Basten said in Arja:

The power of the Court to extent time is discretionary, but is unfettered.

Then his Honour made some critical remarks about that which had been said in Lawrence. Now, a case was decided called Montero, and that is at paragraph 42, and that was the first of these but not the actual group of cases in which these cases – and Justice Leeming, he was the only judge who said it, but he said that one had to establish circumstances, and that is at paragraph 42. Then there is a consideration of the English cases, and we say that one has to look more deeply at what those cases actually decide, and I will come back to that if I have time in a minute. But, then we get to paragraph - - -

HAYNE J: I would have thought the English cases are relevant only to the extent to which the statutory foundation of those cases is identical.

MR GAME: Yes, your Honour. No, I understood. But, they say things like, it is our invariable practice to look at the justice of the case, and they do not have a section 6(3) exercise, so one has to kind of be careful about how one transports those ideas to here.

HAYNE J: Also where in sentencing appeals, I think it is still the position in the United Kingdom that the Crown is not represented.

MR GAME: Yes.

HAYNE J: Just because it is written in England does not mean that it is right.

MR GAME: Now, we get to paragraph 52 and we see that Justice Hoeben rejects the exceptional circumstances test, and then he says:

The analysis in Young and Arja concerning the unfettered discretion . . . is persuasive.

Then he says, “A better test”, coming from Etchell, but Etchell just says you have to show something more, and then that lands us in paragraph 53 to the substantial injustice test. But, Justice Campbell did not propose the substantial injustice test, and the substantial injustice test is actually very close to the exceptional circumstances test. So, you get to paragraph 53 and, we say, it really does not follow, and there is no justification for why you have to show substantial injustice. We would say the test is, is it in the interests of justice that the extension of time being granted – full stop, that is the test.

There are going to be so many varieties of different situations that you would not want to describe the test in any more detail. As I said, some cases you would not look at the merits at all. If you look at section 6(3) for a glance it would only be to see if there was a possibility of a lesser sentence, not, as it were, a virtual exercise of the section 6(3) function. Now, when we get to paragraph – still in paragraph 53, your Honours, then we see this substantial injustice would result – I think I am talking too fast. The fourth last line in 53:

This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear . . . in a “more summary fashion” –

But, if one goes back to what Justice Campbell said, he was talking about a more summary fashion in respect of assessment of the grounds, not the ultimate disposition of the appeal, and we saw that is back at page 14 of this judgment. Then we see applying this test at 54, it is suggested that the “application is not particularly strong”, but, as I said, in that case the application was based on the fact that aid had been refused. Mr Abdul did not have much to say about it. Then we come to how section 6(3) comes into it. Now, I cannot emphasise strongly enough that section 6(3) is an exercise of original jurisdiction in which one has to consider all factors and articulate reasons, and this Court said that in Dinsdale, having regard to cases like Soulemezis v Dudley.

So, 59, when one talks about what the re-exercise of the discretion would be, you cannot do that on an application for extension of time because that is the exercise of original jurisdiction that one engages in the resentencing process, and if you are required to do that at a summary level then you are required to do more than you are required to do in the disposition of the appeal, which is satisfy the court on all of the material.

HAYNE J: Back up a stage, Mr Game, can you repeat the propositions that you have just made? I do not think I have quite followed them yet.

MR GAME: What I am saying is this: when you are looking - - -

HAYNE J: Sorry, can I interject to try to make plain where my difficulty is arising?

MR GAME: Yes, your Honour.

HAYNE J: I can understand that for the Court of Criminal Appeal to resentence is an exercise of original jurisdiction, that I understand. To determine that some other sentence more or less severe should not have been passed is determining the appeal, is it not?

MR GAME: That is right. But, you only get to that point once House v The King error has been established, you are engaged in the process of resentencing. One has to actually examine the significance of the errors, one has to examine the material. In the case of Kentwell, where we will see shortly, one has to actually go through the exercise of working out what the significance of the errors was and then assessing the material for oneselves and seeing if the sentence then would be the same or longer one dismisses the appeal, but otherwise one must proceed to resentence.

So, at a summary glance, looking at the proviso, puts an onus on the appellant that the appellant does not bear on the appeal itself, because the appellant satisfies the court on all of the material and then the court exercises the discretion. This notional exercise of discretion turns the process on its head, or if you were looking at the 6(3) question as, shall I say, at a glance, all you would say is, is there a prospect of a lesser sentence, and that is all you would do, you would go no - - -

BELL J: Well, now turning to Kentwell, application book 92, paragraph 69, the approach that the court took after having accepted that there were material errors in the approach adopted at first instance, the court then proceeded to consider it “necessary to assess the prospects of the application” were leave to be granted, and against that to turn to a consideration of those prospects in light of 6(3), nothing about substantial injustice there.

MR GAME: No, that is for the purposes of ascertaining whether or not there is substantial injustice. That is an application of the test, that is a part of the test that they have set, and not only that, your Honour, the sentence for the reasons is fine, the next sentence is all wrong in terms of what you are doing on assessing prospects, and I will show why it actually falls apart in a minute. But, can I just go back a page, and that is on a summary view, because we see that back at 67. So, there is no such thing as a summary view of 6(3), but if you go back to page 90, what paragraphs 63 to 65 mean is that the sentence and the substance behind the sentences had gone because the mental health aspect had a substantial effect on all of the four sentences, and that is the effect of those findings.

So that the sentencing remarks – still on this leave point – the sentencing remarks really have gone, and not only that, we have now got four established errors. We have got a Muldrock error for the two long sentences, we have got an unlawful sentence for one of the sentences, we have got a special reasons error, and then for four of the sentences, and they are partly concurrent and partly cumulative, for four of the sentences – all sentences we have got the mental health aspect impinging in an important way. Then one comes to this exercise and we say this exercise that follows at paragraph 70 in no sense could be described as anything more than a summary look at section 6(3), and looking solely, really, at the objective circumstances of the offences, not assessing the significance of the errors, not resentencing, and you see at paragraph 90 it really all falls apart because:

Although material error has been established, none of the matters . . . support a conclusion that there has been a substantial injustice arising out of the sentence imposed, or that some other sentence is warranted in law.

How would you know? Section 6(3) refers to “sentence”, we have got four sentences, what sentence is being talked about?

BELL J: I would read that as a conclusion in relation to each of the matters the subject of the application for extension that none of the matters advanced supported a conclusion that some other sentences warranted in law. The omission of the plural in the concluding sentence does not seem to me to be your strongest point.

MR GAME: Well, your Honour, I would put to the Court that it is dramatic, and it is dramatic for this reason: that all it is saying is - we took a quick glance at this and the overall sentence was fine. They have not assessed the significance of the errors at all. There is not a word about it, not one word. And as I say, you can throw away the remarks on sentence once you get to those early – and you have got an unlawful sentence. So, what is happening in this section, this so-called section 6(3) exercise, is that at a glance you are not satisfying the Court that some lesser sentence would be imposed even though the Court is not doing the exercise, and that is no part, in our submission, of the discretion to extend time, and we say – and that is now the way in which all of these cases were dealt with, it is the way all cases are now dealt with in sentence, and this is now being carried over to conviction appeals requiring you - - -

BELL J: Well, we are not dealing with conviction appeals but - - -

MR GAME: No, but it is a matter of importance.

BELL J: - - - looking at this – well, I do not think one can – one has to look at the application of the principles in the context with which we are concerned which is leave to appeal against a sentence. But your point is, material errors having been established, the interests of justice required the extension, is that - - -

MR GAME: My point is that material errors – the court’s discretion is engaged, the court has never actually engaged its discretion because this is all virtual in the sense that we never got an extension of time. I am saying, you do not do the section 6(3) exercise at all at the point of extension of time, and if you do do it you have got to do it properly, and if you do do it properly you will come up with a very different outcome than the outcome that the court has come up with on a - - -

BELL J: Well, you may or may not is your point.

MR GAME: You may or may not, that is right. I am saying – I do not like to use the word – I am saying this is a fudge. This is actually not doing it properly. It means that this person has not had his sentence determined properly at any time because the Court has said the old sentencing remarks do not stand and they have given no reasons and no explanation as to what the sentences should be.

HAYNE J: Well, what is the purpose of paragraphs 76 to 89?

MR GAME: That is an exposition as to what the objective circumstances are, stripped of that which the court has already found at paragraphs 63 to 65. To do this exercise properly – can I add to this? There was also affidavit material on resentencing that you would have to have regard to, there is not a word about it. You would have to assess his culpability having regard to what you found in section 63 to 65 and you would have to do it differentially, you would have to work out what the significance of the Muldrock errors were, you would have to reassess the questions of concurrency and accumulation, you would have to put an additional term on the sentence that did not have - - -

BELL J: Why would you assess the effect of the Muldrock errors on the original sentence? What would be the purpose of that?

MR GAME: Well, you would have to work out – well, if you were resentencing, you would not but if you are simply looking at the significant – if you are looking at whether 6(3) at a glance, shall I say, you would have to do that. But, as I say, you cannot use section 6(3) in this way on a test of substantial injustice to dispose of an appeal unless you actually engage in the discretionary exercise that is required by cases such as Dinsdale and Baxter, which we have referred to in our submissions.

So, what I say is this: we have a new test for extension of time and we have within that test a requirement on an applicant that goes beyond that which is required to show that the appeal is arguable, and we have a conclusion about an outcome which by no means follows from that which is said by the court, and this is the way in which these cases are all being dealt with now. Now, that is what I wanted to say about – I did say the reason why special leave should extend is because this has now been extended to conviction appeals. Could I just take your Honours very quickly to this case of Miles, which is the last in our bundle?

We see now that in paragraphs 55 to 62 the principles that are expounded in Abdul and now these cases are said to apply to conviction appeals involving a projection about the proviso. We see that at paragraph 61. At 180, how he would meet a negative proposition in respect of “no substantial miscarriage of justice”. Now, this is a whole level of jurisprudence that the criminal justice system has managed to do without for 100 years, and it has - - -

BELL J: Paragraph 56, it is said that:

there are a number of factors that the court must consider in deciding whether it is in the interests of justice to grant an extension of time to appeal.

Now, that is the test for which you contend, and you say from there on - - -

MR GAME: Yes, paragraph 61, the test of “substantial injustice”, and the test of substantial injustice requires you to address the proviso. What I am saying is why would you at the point of screening the case look at the ultimate disposition of the case, and the same applies to both kinds of cases, and then 180 makes it very plain that you have - - -

HAYNE J: Well, does your argument depend upon your making good that proposition? That is, does your argument depend upon asserting that in considering the grant of leave it is irrelevant to consider whether the court would conclude that no other sentence should be passed?

MR GAME: Well, subject to this, your Honour, which is we say that the words “substantial injustice” in themselves create a fetter, and that can be seen by those parts of the judgments where the court is not satisfied with the explanation that they were refused legal aid in the first place, which is an ancillary proposition. So, subject to that, those are the two kind of central ideas. One is what sits – the idea of substantial injustice putting up a real fetter like having to show exceptional circumstances, and then, yes, subject to that, I accept what your Honour put to me.

HAYNE J: Namely, that it is an essential part of your argument or that it is not? Sorry.

MR GAME: No, it is not essential.

HAYNE J: It is not, no. Thank you.

MR GAME: Not essential.

HAYNE J: I did not want there to be some misunderstanding between us, Mr Game.

MR GAME: The answer is no.

HAYNE J: Yes. Thank you.

MR GAME: Sorry. I have taken to talking too fast. I am sorry.

BELL J: Taken to?

HAYNE J: That is called “reading up your prize” in your jurisdiction, is it not, Mr Game? Go on.

MR GAME: There is a website that reports these exchanges, I have noticed.

HAYNE J: Yes, so I have. Go on.

MR GAME: I have come to be more careful in what I say anyway. Sorry. Anyway, yes, but if I could say something about the O’Grady Case, and if one turns to – it does not have the complexity of the multiple sentences and the multiple errors, but once again he was refused legal aid and that is his reason why it was not brought before. He was given aid for a sentence appeal – conviction appeal, not sentence. If you look at page 77 then the same approach is taken. Then we see that paragraph, which is the same that we saw in paragraph 69 of the other one at paragraph 32, and we say, the idea of examining it in a more summary fashion is dragged in from Abdul at paragraph 29.

HAYNE J: But, leaving aside the particular manners of expression that you can point to, when we go from paragraph 33 onwards, do we not there see sufficient consideration of whether some other sentence in law should have been passed?

MR GAME: Well, no, your Honour, we say that if you, for example, if one looks at paragraph 39 – sorry, incidentally, the court made an error about what the standard non-parole period was and it is said against us it is inconsequential but it is the difference between seven and eight, and if you go from five and a half to seven as opposed to five and a half to eight, that is a difference between going up 30 per cent and 45 per cent. It is a big number if you are looking at those figures, but if you look at, for example, paragraph 39, we see, for example, a reference to the person’s circumstances. They are not assessed as one does in a sentencing exercise, they are described as not – they are the types of matters regularly

considered by sentencing judges, but those are the factors, including the affidavit on resentencing that you would bring to account in that exercise.

This is, shall I say, avowedly a summary exercise, it is avowedly because what is said at paragraph 29. So, it can be carried out in a more summary fashion, they are not purporting to do more than do it in a summary fashion, and then we see the conclusion at paragraph 46 which is identical. So, we have an argument about the substance of the test for extension of time, whether it requires substantial injustice or, as we say, the test is just whether or not the interests of justice require.

Many times, as I say, one would not even look at the merits of the grounds. If it was a matter of weeks out of time one would not, so it is, as I say, the Registrar would do it in a certain – so, that is the first proposition. The second proposition, whatever that test is, is it appropriate for the court to look at the end result in determining that question rather than simply the prospects of success? In terms of general importance, we can show that it extends now through two conviction appeals as well. Although it is a matter of procedure it goes to substance and that is why we say it is important that – it is of sufficient importance for the Court to grant special leave. It is also a common provision in these Criminal Appeal Acts, but it is - - -

HAYNE J: I think there are some verbal differences, but the nub of it is the same I think. Yes, thank you, Mr Game.

MR GAME: If the Court pleases.

HAYNE J: Yes, Mr Pickering.

MR PICKERING: Thank you. Your Honours, can I make the point that overwhelmingly when these Muldrock error appeals run in the nature of, say, the matter of O’Grady, where the only error identified is a Muldrock error, that in the vast majority of them where the appeal is actually running, leave has been granted or leave was not required and it is actually running, essentially the only issue becomes a 6(3) issue because inevitably in those many cases that were sentenced according to Way, before the decision of Muldrock, of course the courts sentenced according to Way and there was a clear Muldrock error which you see in the matter of O’Grady.

So, the only question that ever becomes relevant on the appeal is the significance of 6(3), but equally even in that question is it is wrong to just simply assume that once you establish a Muldrock error that that much inevitably lead to a lesser sentence, so one always engages the question of 6(3). One then needs to look at that in the context of what the Court of Criminal Appeal was doing in Abdul, and in looking at that it is important to note that in how Abdul ran and in how O’Grady ran and in how in Kentwell ran there is still of course full submissions, affidavits outlining the applicant’s current position were put before the court and all of the relevant factors that a court would look at in 6(3) were before the court for their consideration of that 6(3) question.

HAYNE J: Well, can I point to what may be a point of difficulty? What is meant by saying that assessment, that is the assessment of strength, can be carried out “in a ‘more summary fashion’” than could be done? What is that saying? I think what, to put it tendentiously, as Mr Game would have it, what is that hiding?

MR PICKERING: Well, can I take your Honours to paragraphs 57, 58 and 59 of Abdul? What it is not hiding when one looks at paragraphs 57, 58 and 59 of Abdul is it is not hiding that the Court of Criminal Appeal must, in that consideration, take into account the additional material consisted with Baxter and Douar, the additional affidavit material, and equally, when one moves onto paragraph 59, an acknowledgement that it is re-exercising the sentencing discretion with all that material.

So it is, although making a comment about dealing with it in a summary way, and we make these points in our submission, it is not really when you actually examine it being done in a summary way. It is actually examining all the material that you would examine on the ultimate question of 6(3), that being obviously all the material that was admitted and relevant at sentence, but equally, the additional affidavit material, and considering ultimately the question that you would be re-exercising your own sentencing discretion.

So, the comment is made that it is being done in a summary fashion, but when looks at the mechanics that Abdul outlines that you should follow and then one looks at the process that actually took place in O’Grady and Kentwell where this material was before the court, where the court did consider the various factors that Abdul said that should be considered because, Justice Bell, makes clear that he was following the decision of Abdul, one wonders, to use your Honour Justice Hayne’s comment, what is being hidden in the summary fashion because in truth the court is actually following the process of what it would ultimately do on section 6(3).

HAYNE J: Well, that perhaps comes close to the heart of what may be a difficulty, I do not know whether it is. Judicial formulae like this take on a life of their own, witness what happened with the proviso, and I understood your most recent submission to be, well, there is a full examination of the matter. If that is right why the reference to “in a summary fashion”, and is leaving that on the record liable to misapplication in future cases? That is the area for immediate debate and concern. I cannot articulate it more clearly.

MR PICKERING: I understand what your Honour is saying, and it is perhaps no answer in our written submission and in my approach here to say that in effect and in reality it was not really being dealt with in a summary fashion at all, but that is, nevertheless, what our argument is when one looks at Abdul, O’Grady and Kentwell, that it is not really being dealt with in a summary fashion, there is still consideration of all the material, and then in the passages that your Honour has highlighted in Kentwell and O’Grady in dealing with Mr Game’s submissions you can see that the court has turned its mind to 6(3), has then made such an assessment, and so therefore even using the term “summary fashion” even in the judgments of Kentwell and O’Grady, the evidence does not really show that that is what they have done. But, even if leave was - - -

HAYNE J: Can I identify the contrast that I think Mr Game is seeking to have us grapple with? There would be a contrast between a Court of Criminal Appeal saying, having regard to all relevant matters that bear upon sentence and applying them according to principle no other sentence should be passed, one case.

MR PICKERING: Yes.

HAYNE J: The other case I think he conjures up is the spectre, he would say reality, is feels about right. Now, that is putting it very tendentiously, but that is the problem I think that I need your assistance about.

MR PICKERING: That is why I took the process of outlining from Abdul how the court does actually have all the material before it, and indeed in Kentwell and O’Grady it was exactly the same situation, and so then not simply doing that process of saying, it is about right, they are actually addressing specifically the aspect of 6(3), and you can see that when one looks even at the discussions that go, in Abdul from 57 through to 59, that that is fully engaging the ultimate question in the circumstances as they exist now at the time of dealing with it, of looking at the resentencing discretion with all the material about whether a lesser sentence in law is warranted.

So, it is not just a feeling of about right. It is looking at the very heart of the issue that will be in any Muldrock appeal, that being the question of 6(3). Perhaps the terminology of dealing with it in summary fashion has created a misleading impression because that is non-effectively what Abdul was saying should happen, and indeed, what was not happening in Kentwell and O’Grady when one actually examines what occurred. Thank you.

HAYNE J: Yes. Thank you very much, Mr Pickering. Yes, Mr Game.

MR GAME: It is not just the words “summary fashion” that have taken on a life of their own, it is the words “substantial injustice”, and that inappropriately puts the test too high, and we cited a case called Carlton where Justice Hulme said that poses “a not insignificant hurdle” for an applicant. That is to say, it is said to create something more than is required in the interests of justice.

HAYNE J: Well, I thought in vice we pointed out that there is a miscarriage of justice when there is any departure from trial according to law and that the proviso with its unusual contrasting language of “substantial miscarriage” of justice actually occurring is referring to a different concept.

MR GAME: Yes, that is the point - - -

HAYNE J: The injection of “substantial miscarriage” may, you would say does.

MR GAME: That is correct. That is the point we make, yes. Also in respect of looking at – one can see it in both of these cases, but what the court did was avowedly not actually do the section 6(3) but project about section 6(3) in what was a summary fashion and that is how they articulated their judgments. So, the analysis of what actually happened in this case bears our points out, we submit. So, if the Court pleases.

HAYNE J: Thank you. The Court will adjourn for a time to consider the course it will take in this matter.

AT 12.41 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.46 PM

HAYNE J: In each of these applications there will be a grant of special leave to appeal. They will be listed for hearing together. Do counsel have an estimate of how long together the cases would take? It would seem to us that they would be less than a day but is that so?

MR GAME: I would have thought that it could spill over lunch but that would be the most. Not a full day I would have thought.

HAYNE J: Yes.

MR PICKERING: I agree.

HAYNE J: Are you happy with that estimate, Mr Pickering?

MR PICKERING: Yes.

HAYNE J: The attention of the counsel and their instructors is drawn to the directions for the filing of submissions which will be handed and I utter the customarily minatory threats about the need to abide by the time limits that are fixed.

AT 12.47 PM THE MATTER WAS CONCLUDED