Cecil v Director of Public Prosecutions (Nauru); Kepae; Jeremiah [2017] HCATrans 207 (20 October 2017)

Last Updated: 25 October 2017

[2017] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S117 of 2017

B e t w e e n -

JOB CECIL

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (NAURU)

Respondent

Office of the Registry
Sydney No S118 of 2017

B e t w e e n -

JOSH KEPAE

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (NAURU)

Respondent

Office of the Registry
Sydney No S119 of 2017

B e t w e e n -

JOHN JEREMIAH

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (NAURU)

Respondent

Applications for special leave to appeal

KIEFEL CJ
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 OCTOBER 2017, AT 10.11 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR M.G. HIGGINS, MR S.G. LAWRENCE, MS F.K. GRAHAM and MR N. FUNNELL, for the applicants in each matter. (instructed by Hearn Legal)

MR M.J. COPLEY, QC: If the Court pleases, I appear with my learned friend, MR G.J.D. DEL VILLAR, for the respondent in relation to each of the applications. (instructed by Ashurst Australia)

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: As your Honours have seen from correspondence which we hope has been drawn to your attention, the question of an ultimate outcome were leave granted and appeals allowed has been narrowed to an acceptance on our part that there would need to be remitter. In our submission that follows in any event from the nature of the error that we contemplate as the principal ground or grounds upon which leave should be granted.

Could I take your Honours by way of illustration to page 79 of the application book where the Supreme Court is in the course of considering arguments about the nature of the appeal under 14(4) of the Nauru statute. It culminates, having noted arguments which were clearly and completely put on behalf of our clients about the need for there to be error - it concludes on page 80 in paragraph 69 with what could be, at best, only an interim step in reasoning. There was no question of competence - that was not the point. The question was whether there needs to be error. There is no ensuing consideration of error whatsoever.

KIEFEL CJ: Do I take it from your submissions that there were two strands which led the Supreme Court of Nauru into error? One was to assume that if the DPP’s appeal was as of right and combined with the provision which allows the Court to substitute, that that was sufficient.

MR WALKER: Yes.

KIEFEL CJ: That the Court could then proceed simply to determine the matter for itself without error.

MR WALKER: Without error, yes. That is the first strand and the second strand, of course, is there was no consideration of our appeal at all.

KIEFEL CJ: Yes. There is a concession to that effect, rightly made.

MR WALKER: Yes. I was about to draw to attention, with great respect, the entirely correct and properly expressed concession to be found at pages 208 and 209 of the book. It is what follows that concession, which, as your Honours have seen from yesterday’s correspondence, is really all that stands between us.

KIEFEL CJ: Which is really whether or not this Court should infer that the Supreme Court considered that the sentences imposed by the District Court were manifestly inadequate.

MR WALKER: Yes and we submit that one cannot read the reasons in any fashion other than this - that error did not need to be found, that the Supreme Court had a different view from the sentencing court, that is the first court, and that it followed without further that that view should be substituted and it also therefore followed that our appeals should be dismissed, notwithstanding, as it was put, that they did not need to be considered.

So there was dislogic at every point and it started and is fed throughout by the error of not perceiving the need for there to be error. It means that we have been deprived of the proper hearing and determination of the appeal, both against us and for us. It is for those reasons, in our submission, that this is a fundamental miscarriage that this Court can correct and as your Honours have seen, were leave to be granted, that the parties accept that it would be appropriate - - -

KIEFEL CJ: We can proceed to hear the matter instanter, treat the leave effectively as the appeal.

MR WALKER: That if leave were proper to be granted, the parties have accepted that the appeals are such as to justify the exceptional course of being heard instanter, indeed allowed reversal of the outcomes and remitter to the Supreme Court to proceed according to law.

KIEFEL CJ: And that is remitter to a differently constituted Court?

MR WALKER: To a differently constituted Supreme Court.

KIEFEL CJ: You are also seeking the costs of the appeal?

MR WALKER: Yes. Your Honours have seen that these appeals, which are governed by the combination of the Nauru statute and the Australian statute, include section 43.

KIEFEL CJ: That is an unusual provision.

MR WALKER: It is, with great respect, but it is precisely the kind of provision that this Court was referring to in Latoudis v Casey. I do not say verbatim precisely but the word “just” appears in both and it is unusual, as what I might call social organisation of criminal justice, to have such a provision, but it exists and it is for those reasons and precisely in accordance with the principle – I might even say the policy – to be seen in Latoudis v Casey, that costs should follow the event.

Your Honours have seen that that is the only thing upon which the parties do not agree in the event that this Court thought leave were

appropriate and if this Court did not regard the hearing of the appeal instanter as to justify in this busy list attending to costs, then that is something that can and should be done by an extremely brief exchange of written submissions. May it please the Court.

KIEFEL CJ: Yes, thank you. Yes, Mr Copley.

MR COPLEY: Your Honours, the concession has been made that grounds 1 and 2 in the notice of appeal have been made out.

KIEFEL CJ: Yes.

MR COPLEY: The only contention that was advanced in the written submission was that the marked disparity between the sentences imposed of three, three and six months respectively for the applicants, which were increased to 18, 18 and 22 months, indicated or drove one to conclude that the Supreme Court must have regarded the sentences as manifestly inadequate because of that marked uplift.

KIEFEL CJ: Except that there is a fair bit of freight in the word “inadequate”, is there not? It involves questions of consideration of the law and sentencing practice. That is not what is exposed here.

MR COPLEY: Yes, but more disturbingly perhaps, at page 85 of the application book – perhaps I can take you first to page 84 of the application book in paragraph 90, his Honour said that he regarded 18 months as the appropriate sentence for riot but to reflect pleas of guilty, he reduced it to 14 months. But then in relation to the first respondent, Jeremiah, over on page 85 in paragraph 92.5) his Honour said he was going to:

add on to the sentence of 14 months a term of 2 months for a flight diversion and 2 months for your previous conviction -

to explain that a plane had to be diverted from Honiara - from the airport in Nauru back to the Solomon Islands.

KIEFEL CJ: Yes, I recall the facts.

MR COPLEY: Yes, and that was the subject of a separate charge which had been stood over and it is possible that his Honour was simply saying there no more than that, “I take into account as part of the circumstance of your riot that coincidentally an aeroplane that was meant to land could not land”, but the difficulty then becomes the next part of the sentence in paragraph 5) where his Honour is adding on:

2 months for your previous conviction -

which is not at all orthodox.

KIEFEL CJ: No.

MR COPLEY: So that is the position.

KEANE J: But in any event, just looking at paragraph 90, it does seem tolerably clear that his Honour has simply proceeded to say, “I consider that this is the sentence that is appropriate”.

MR COPLEY: Yes. He has just decided that if he had been sentencing he would have imposed a different sentence.

KEANE J: Yes.

KIEFEL CJ: Yes.

MR COPLEY: That is not right, obviously.

KIEFEL CJ: No.

MR COPLEY: The Court said so many, many times. Hence the position is this, that if the Court is disposed to grant leave in each matter then it would be appropriate to hear the appeals instanter and allow the appeals and then remit them in the way that has been suggested in the letter.

KIEFEL CJ: What do you say to the application for costs?

MR COPLEY: Simply this, that costs are not usually awarded against the Crown in a criminal proceeding.

KIEFEL CJ: But there is that statutory provision for it.

MR COPLEY: The argument there, your Honours, is that that statutory provision is in a statute of Nauru and that provision is not, it is submitted, picked up by the Nauru (High Court Appeals) Act.

KIEFEL CJ: Yes, I see.

MR COPLEY: So, if that be correct, then the general position is that costs are not awarded against the Crown in a criminal matter and I would suggest to your Honours that, although there is no Crown here as such, that the Crown is just a - - -

KIEFEL CJ: It is headed “Part 5 Appeals from the Supreme Court” and they can only be to the High Court, though. The High Court may order the payment of such costs as it thinks just.

MR COPLEY: Yes, but the argument to your Honours is that unless that legislation has been picked up by a Commonwealth statute, then it is not effective to give this Court jurisdiction, but that is not to say that the Court would not have jurisdiction to order costs.

KIEFEL CJ: In any event it simply would not - it may or may not apply the policy in relation to criminal cases.

MR COPLEY: Yes. Thank you, your Honours.

KIEFEL CJ: Mr Walker, could you assist us in relation to the jurisdictional question in relation to costs?

MR WALKER: The first thing is that not two days ago this Court’s description of the jurisdiction from Nauru was that it was governed by the Nauru statute and the Australian statute. They are linked, of course, by the treaty to which the Australian statute gives effect. As your Honours have already observed, section 43 of the Nauru statute – it is conveniently found at page 112, for example, of the application book – is specific to two things which show an undeniable choice by the legislature of Nauru, namely, that there are costs jurisdiction in crime because section 43 is only about criminal appeals and, second, that it is exercisable only by this Court, the High Court, because those are appeals from the Supreme Court.

So there cannot be any doubt about the policy of Nauruan law. There is, of course, the point to be made that what this Court exercises is original jurisdiction, not appellate jurisdiction. So there is, in our submission, recourse to section 32 of the Judiciary Act. In our submission, the combination is irresistible, particularly when one sees the link of the treaty, whereby everything my learned friend says about the general policy of the law with respect to costs in crime is true but ceases to apply by reason of the focused, unmistakable omission in section 43 for this Court to order costs in a criminal appeal to it from the Supreme Court of Nauru.

It is for those reasons, in our submission, that there is nothing in the jurisdictional point. It becomes simply a question of discretion. These proceedings have, in our submission, been conducted in an appropriate fashion. The error has not been committed because of a failure for points to have been taken below, as has again been properly conceded by the Crown here. For those reasons, in our submission, there should simply be orders for costs following the event as this Court indicated was appropriate where there were such statutes, in Latoudis v Casey. May it please the Court.

KIEFEL CJ: The Court will adjourn briefly to consider the course it will take.

AT 10.25 AM SHORT AJDOURNMENT

UPON RESUMING AT 10.33 AM:

KIEFEL CJ: The Court considers that it should give some reasons in these matters.

Each of the applicants for leave to appeal was charged with offences which arose out of an incident of civil disorder that occurred in the vicinity of the Parliament of Nauru on 16 June 2015.

On 25 November 2016, following pleas of guilty in the District Court of Nauru to various offences by the applicants, they were each sentenced to terms of imprisonment. Mr Cecil and Mr Jeremiah were ordered to serve a total of three months’ imprisonment and Mr Kepae was ordered to serve a total of six months’ imprisonment.

The Director of Public Prosecutions of Nauru brought an appeal under section 3(3) of the Appeals Act (1972) Nauru, in which it was alleged that the sentences were manifestly lenient and that there was a disparity between the sentences and the penalty imposed for another related offence. The applicants cross-appealed on a number of grounds, including the ground that their sentences were manifestly excessive.

On 2 May 2017, the Supreme Court of Nauru (Khan ACJ) upheld the appeals brought by the Director of Public Prosecutions, dismissed the applicants’ appeals and substituted its own sentences for the sentences passed by the District Court. The total period of imprisonment for Mr Jeremiah and Mr Kepae was 22 months and for Mr Cecil, 14 months.

An appeal to this Court under the Nauru (High Court Appeals) Act 1976 (Cth) from the exercise or purported exercise by the Supreme Court of Nauru of its appellate jurisdiction requires the leave of this Court.

The Director of Public Prosecutions in the applications for leave to appeal in this Court has conceded that the Supreme Court of Nauru “did not state in its reasons that it found error” and “erroneously concluded that it was not required to find error affecting the sentence imposed by the District Court of Nauru”. These concessions are properly made.

The Supreme Court’s error, in assuming that it could proceed to substitute its own sentence without identifying any error on the part of the District Court, appears to have been based upon two factors. The first was the entitlement of the Director to bring an appeal against sentence under section 3(3) of the Appeals Act. The second was that section 14(4) of the Appeals Act gave the Supreme Court an unconstrained discretion on appeal to substitute a sentence for that imposed by the District Court.

It is to be inferred that the combination of these factors led the Supreme Court to believe that nothing more was required for it to be able to substitute sentences which it considered to be appropriate in the circumstances.

Section 3(3) of the Appeals Act permits the Director of Public Prosecution to bring an appeal to the Supreme Court. It says nothing about the powers of that court on appeal, or when its discretion to substitute a sentence is enlivened. Section 14(4) of the Appeals Act provides that, at the hearing of an appeal, the Supreme Court:

may, if it thinks that a different sentence should have been passed, quash the sentence passed by the District Court and pass in substitution therefor such other sentence, whether more or less severe, which the District Court could lawfully have passed as it thinks ought to have been passed -

There is nothing in the Appeals Act to suggest that the discretion given by this provision is to be exercised other than by reference to the well-established principles relating to appellate review of the exercise by a lower court of its sentencing discretion. The discretion to substitute a sentence under the Appeals Act only arises where the appellate court finds error in the decision of the court below. It is not enough that the appellate court considers that it would have taken a different course, had it been in the position of the sentencing judge. It must appear that some error was made by the sentencing judge in exercising the discretion.[1]

An appellate court must not intervene unless it identifies an error of law amounting to a failure of the sentencing judge properly to exercise their sentencing discretion. The Supreme Court did not in any way address this question.

Despite conceding that the Supreme Court wrongly concluded that it was not required to find error affecting the District Court’s exercise of its sentencing discretion, the Director of Public Prosecutions submits that it is nevertheless to be inferred that the Supreme Court considered that the sentences imposed by the District Court were manifestly inadequate and that it has not been shown that the Supreme Court’s conclusion in that regard was based on an error of principle.

The only inference that may be drawn from the reasons of the Supreme Court is that the Supreme Court considered that, if it were sentencing afresh, it would give much higher sentences, as it did.

The authority of the Supreme Court to substitute a sentence is not enlivened by such a view. Its power to do so is only engaged if it expressed its satisfaction that the discretion given to the District Court had miscarried.[2]

There will be a grant of leave in each of the matters.

In advance of the hearing of the applications for leave, the parties were asked by the Senior Registrar of the Court whether, if leave were granted, they would seek to put on further submissions on the appeal. The parties advised the Court that, in the event the Court allows the applications for leave, they would not seek to put on further submissions on appeal, other than on the question of costs. They are agreed that in those circumstances the appropriate orders in each matter would be:

1. Leave to appeal be granted.
   
2. The appeal be heard instanter.
   
3. The appeal be allowed and the judgment of the Supreme Court reversed.
   
4. The appeals to the Supreme Court by the applicants and the respondent be remitted to the Supreme Court of Nauru, differently constituted for hearing according to law.
   

There will be orders accordingly.

The applicants seek their costs of the appeal. Section 26 of the Judiciary Act 1903 (Cth) provides that this Court may order costs in all matters coming before it. The Court’s discretion in relation to costs is informed by section 43 of the Appeals Act, which provides that the High Court may award costs in criminal appeals. There will be a further order that the applicants have their costs of the appeals.

Thank you, gentlemen.

AT 10.41 AM THE MATTERS WERE CONCLUDED

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[1] House v The King (1936) 55 CLR 499; [1936] HCA 40.
[2] Bugmy v The Queen (2013) 249 CLR 571 at 588-589 [24]; [2013] HCA 37.