PAZ v The Queen [2018] HCATrans 148 (17 August 2018)

Last Updated: 21 August 2018

[2018] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B3 of 2018

B e t w e e n -

PAZ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 17 AUGUST 2018, AT 9.31 AM

Copyright in the High Court of Australia

MR K.S. MACKENZIE: If it please the Court, my name is Mackenzie, I appear for the applicant, PAZ. (instructed by Mackenzie Mitchell Solicitors)

MR M.R. BYRNE, QC: If it please the Court, my name is Byrne, I appear for the respondent in the proceedings. (Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Mackenzie.

MR MACKENZIE: Your Honours, the main point the applicant makes in this application is that he was tried for offences for which he says he could not be punished. Principally, in support of that submission, he relies upon section 11 of the Criminal Code 1899 (Qld), and in particular upon paragraph (2).

BELL J: In that respect, the argument has somewhat been recrafted between the Court of Appeal and this application.

MR MACKENZIE: Yes. The thrust of the argument is the same, that a miscarriage of justice was afforded or a result of the trial of offences - - -

KIEFEL CJ: Mr Mackenzie, can I just interrupt you for a moment? Do you need an extension of time?

MR MACKENZIE: I do.

KIEFEL CJ: Is that opposed, Mr Byrne?

MR BYRNE: No, it is not, your Honour.

KIEFEL CJ: Yes, you have that extension.

MR MACKENZIE: Thank you. Although the applicant principally relies upon section 11(2), the submission is that that paragraph has to be read in the context of section 11 as a whole, the first paragraph of which provides that:

A person can not be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when the person is charged with the offence.

The relevance of that to the second paragraph is the second paragraph simply talks about the law in force “at the time of the conviction”. It does not repeat the words “doing or omitting to do the act under the same circumstances” which appear in the first paragraph. But it is submitted that when that section is read as a whole, the law in force at the time of the conviction in the second paragraph is intended to refer to the law that would apply to an act or omission done under the same circumstances at the relevant time.

KIEFEL CJ: But the words of subsections (1) and (2) are quite different. They speak to different points in time.

MR MACKENZIE: They are two different points in time. The first paragraph is in relation to the time charged, that is so, and the second paragraph is in relation to the time of conviction but the unifying concept is the law in force at those relevant times. One might have thought it inelegant or unnecessary to repeat in the second paragraph those words about the “doing or omitting to do the act under the same circumstances” in paragraph (2).

BELL J: Sub (2) presupposes that one has exposure to punishment unauthorised by the former law in a stated amount and exposure to punishment under the latter law. Surely what it is concerned with is where there is a change in the penalty in respect of an offence.

MR MACKENZIE: That is the submission which is made against me.

BELL J: What is wrong with it?

MR MACKENZIE: That is not actually the words of the section. The section provides that the offender cannot be punished to any greater extent than is authorised by the latter law. If the latter law does not authorise any punishment because the offence has been repealed, in my submission, the offender cannot be punished at all.

BELL J: That is the difficulty, Mr Mackenzie, both with this argument and your Penalties and Sentences Act argument. You take provisions which are dealing with the concept that a penalty is available upon conviction for an offence but that what has happened is there has been an alteration in the quantum of the penalty. Your argument says for the act of sodomy post the repeal of the offence, the penalty has been reduced to nil. There is, for the purposes of the Penalties and Sentences Act and, for that matter, for the purposes of section 11(2), there is no offence and no penalty for the act of sodomy after the repeal, but that is not to say that for an act that occurred before the repeal or before the person was charged with the offence, there is not available a penalty.

MR MACKENZIE: With respect, that construction is much more apt to the Penalties and Sentences provision in section 180. I would submit that it is not apt or appropriate to the provision in the Criminal Code because the Criminal Code does not refer specifically to an offence but focuses upon the act or omission. If the act or omission which, in this case, is the act of sodomy or its variants, is no longer punishable then - - -

BELL J: Mr Mackenzie, the difficulty with that is you are reading “act or omission” from sub (1) into sub (2). Sub (2) looks at the time of conviction.

MR MACKENZIE: It does but it also, your Honour, says:

If the law in force when the act or omission occurred –

not when the offence was committed, but “when the act or omission occurred”. The submission is made that the act or omission is no longer punishable. Therefore, no punishment can be imposed which would be greater than the nil punishment that can be imposed - - -

BELL J: Yes, you have to then get over the Acts Interpretation Act provision.

MR MACKENZIE: Yes. The Acts Interpretation provision, of course, arrived more than 50 years after the Code provision. So, when the Code provision was enacted it was intended to cover the field in this area. It is for that reason that it is submitted that paragraph (2) did not contemplate being read together or with another provision aimed to cover the field, that the law in force at the time of conviction in that paragraph cannot have been intended to include another law about continuing liability to punishment under a repealed Act because section 11 was the provision which dealt with continuing liability under repealed Acts. The title of the section is “Effect of changes in law”.

It is submitted that the finding of the Court of Appeal and the submission that is made for the respondent that those two provisions can be read harmoniously together is circular and some reliance upon the principles in the Project Blue Sky judgment, but what was said there at paragraph 71 was that the interpretation of provisions to give them a harmonious reading must, in effect, provide for both provisions to have some work to do. If the submission of the respondent were accepted here, section 11(2) would have no work to do at all, it would be effectively repealed by the Acts Interpretation Act, completely overridden.

BELL J: It would have such operation as applies in the case of a former law authorising a particular penalty and either a greater or lesser penalty applying under a latter law for a given offence, surely.

MR MACKENZIE: Well, I think the respondent would say against me, no, that the provisions of section 20 of the Acts Interpretation Act are broad enough to evince that intention that the higher penalty should apply. This is really the great difficulty with the respondent’s position that the amendment to the Acts Interpretation Act in 1995 evinced an intention to override the express provisions of the Criminal Code because quite apart from the attempt to read the second paragraph harmoniously it is not possible, in my submission, and I do not believe that the respondent could contend that it is possible to read the first paragraph harmoniously. They are in direct conflict, the first paragraph of section 11 of the Code says that a person may not be punished if they are charged after the repeal. Section 20 of the Acts Interpretation Act is directly contrary to that.

Similarly, the provision in the Penalty and Sentences Act section 180 is directly contrary to what the Acts Interpretation Act says in section 20. So, upon the removal of the exception expressly saying that section 20 had no application to those provisions, the legislature created a position where there were directly competing contradictory statutory provisions.

Now, it might be thought that the legislature would have had regard to the usual principles of statutory interpretation in doing that and, in particular, to section 4 of the Acts Interpretation Act which provides the well-known and uncontroversial principle that an Interpretation Act is to be read subject to a contrary intention in another Act. You know, it is quite clear and I would submit, unarguable, that the first paragraph of section 11 of the Code expresses a contrary intention.

BELL J: Mr Mackenzie, do I understand your argument depends upon a view that correctly understood section 11 did not permit the lawful conviction of the applicant for any offence or attempted offence under 208 of the Code? Is that the argument?

MR MACKENZIE: No, I cannot go that far because section 11 is a bar to punishment, it is not a bar to conviction. What I say is that the applicant was prejudiced at his trial because of the failure of anybody involved in the trial to advert to the repeal of the legislation and that the effect of section 11 is that he could not be punished and as a result of that he was deprived of certain forensic advantages at the trial, principally an application for a stay on those counts and the part of count 1 which related to conduct after the complainant’s 16th birthday.

BELL J: The Code defines “offence”, does it not, in terms of liability to punishment?

MR MACKENZIE: The Code defines “offence” in terms of an act or omission which renders the person doing the act or omission liable to punishment.

BELL J: Yes, so one needs to understand the language of section 11 against that concept of what constitutes an offence.

MR MACKENZIE: Well, to an extent but, as I submitted earlier, section 11 does not use the word “offence”, it refers directly to the act or omission.

KIEFEL CJ: Which “constitutes an offence”, they are the words it uses.

MR MACKENZIE: In paragraph (1), that is true.

BELL J: An offence is an act or omission that exposes one to liability for punishment. So that when ones come to sub (2) one sees that it is posited upon a person having been convicted for an offence and it gives a rule in relation to what is to happen respecting the exposure to penalties for a person convicted of an offence and one might think that a reasonable construction assumes that the person has been convicted for an offence known to law, correctly convicted.

MR MACKENZIE: Yes. Section (2) then goes on to provide that the person “can not be punished to any greater extent” than is permittable under the law in force at the time of the conviction.

BELL J: What I am raising with you, Mr Mackenzie, is the harmonious reading then with the provisions of the Interpretation Act.

MR MACKENZIE: Yes. In my submission, if the Interpretation Act provision prevails there is still no work for that section (2) to do, the Acts Interpretation provision would take over completely. It is notable that at the same time as the 1995 amendment removed the reference to the Criminal Code from section 20 it also removed the reference to the Penalties and Sentences Act and the legislative history is influenced to some extent by the intention of that 1995 Act to replace the Criminal Code in its entirety but it moved in stages and the first stage was to amend the Acts Interpretation Act, clearly contemplating that the 1899 Code would be repealed in short order but ultimately that was not done.

What is perhaps interesting about those amendment provisions is that there was nothing in the 1995 Act which would have amended the Penalties and Sentences Act. So, that provision was left to stand, apparently intended to be left to stand, against the contrary provisions of the Acts Interpretation Act.

KIEFEL CJ: The section 180 argument was not raised below, was it?

MR MACKENZIE: No, your Honour. There is some reliance on the decision below and also in the respondent’s submissions on two decisions from the Northern Territory, R v Brancourt and Mansray v Rigby. It is a point not made in my outline that in both those decisions the equivalent provision of the Criminal Code (NT) was considered. So, in those decisions there was some consideration given to the interaction between the Northern Territory Interpretation Act and the Criminal Code (NT), section 14 of the Criminal Code (NT) being in almost identical terms to section 11 of the Queensland Code.

What is not immediately apparent and what requires a slightly closer reading of the judgments to derive is that the defendants in those cases were not advantaged by the amendments under the new law. What had, in fact, happened is that one mandatory sentencing regime had been replaced by another mandatory sentencing regime and it was not the defendant’s argument that they fell to be sentenced under the lesser punishment of the new regime because, in fact, in some ways it was harsher. It was a much more ambitious argument that the repeal of the earlier regime meant that there was no mandatory sentencing in place in relation to them.

That is discussed by Justice Barr in Mansray v Rigby at paragraphs [22] and [23] of the judgment. The effect of that is that the Northern Territory decisions did not fall to determine the conflict that can arise between the Interpretation Act provision and the Code provision because they found that the Code provision was not activated or applicable because there was not, in fact, a lesser penalty to be imposed under the new legislation and so, to that extent, the Northern Territory decisions are of less assistance than they might otherwise have been.

The point in relation to the Penalties and Sentences Act provision is a relatively short one. The applicant relies upon the interpretation of the Court of Appeal of Western Australia in the case of Melville which is cited in my outline.

KIEFEL CJ: Why would you be allowed to raise this argument if it was not raised below?

MR MACKENZIE: It is not a separate ground because the ground raised below was that the applicant could not be punished and if this provision affects that question, in my submission, it falls to be considered as part of

deriving the correct answer as to whether or not the applicant could not be punished. It is not a new issue in that sense but it may just be a relevant provision which was overlooked.

BELL J: Can you just explain the relevance given that section 180 contemplates a provision of an Act increasing the sentence or it may be reducing the maximum sentence for an offence? What scope is there for it to apply in the case of a repeal?

MR MACKENZIE: The argument falls back upon the interpretation adopted by the West Australian Court of Appeal in Melville’s Case to distinguish that case from the line of authority in Commissioner of Taxation v Price which considered the Commonwealth analogue of this provision. It was distinguished there because of this definition of “offence” in the Criminal Code (WA), which is the same as the definition for Queensland, to give the statutory provision a wider meaning focusing upon the punishment or the penalty imposed for the act or omission being the offence rather than the penalty or punishment imposed - - -

BELL J: But was Melville concerned with a circumstance such as we have here where there has been a repeal of the offence?

MR MACKENZIE: Not exactly, no. In Melville the relevant provision had been repealed and the conduct was now punishable under a new provision which was re-enacted elsewhere.

BELL J: That is a very different circumstance.

MR MACKENZIE: In that circumstance, it was sufficient for the Court of Appeal to distinguish the cases that had considered the Commonwealth provisions which limited it to the very same provision. If the penalty for the very same provision was reduced then the Commonwealth would apply.

KIEFEL CJ: I see the light is on, Mr Mackenzie.

MR MACKENZIE: Thank you, your Honour.

KIEFEL CJ: We need not trouble you, Mr Byrne.

In our view any appeal in this matter would have insufficient prospects of success to warrant the grant of special leave. Special leave is refused.

The Court will adjourn to reconstitute.

AT 9.54 AM THE MATTER WAS CONCLUDED