HBZ v The Queen [2020] HCATrans 187 (11 November 2020)

Last Updated: 16 November 2020

[2020] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B28 of 2020

B e t w e e n -

HBZ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 NOVEMBER 2020, AT 2.00 PM

Copyright in the High Court of Australia

MR S.C. HOLT, QC: May it please the Court, I appear with my learned friend, MR M.J. JACKSON, for the applicant. (instructed by Resolute Legal)

MR C.W. HEATON, QC: May it please the Court, I appear with my learned friend, MS D. BALIC, for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

BELL J: Yes, Mr Holt.

MR HOLT: Yes, may it please the Court. We need leave to proceed out of time, which I understand is not opposed by the Crown.

BELL J: Is that so, Mr Heaton?

MR HEATON: Yes, your Honour.

BELL J: Yes, you have that leave, Mr Holt.

MR HOLT: May it please the Court. As the Court knows, this application concerns a question of construction, in truth, in our submission of section 14A of the Acts Interpretation Act (Qld), and in particular the statutory.....of the penal rule in subsection (2) of that section and it arises, as the Court knows, in the context of the question of the meaning of the word “choke”, which is the actus reus of the offence in section 315A of the Criminal Code.

Can I take the Court, if I may very briefly, to page 77 of the record book to the offence provision – to the construction provision itself, before turning quickly to the error that we allege occurred below. The Court will see there at the bottom of that page section 14A and again, in terms, this provision introduced, as the Court will know, in 1994, effectively in subsection (1) has a statutory formulation of the purposive rule and statutory construction of a particular formulation, but then critically in (2), in our submission, makes clear that subsection (1), that is the purposive rule, does not “create or extend . . . liability”. The remainder of that subsection appears to be something of a non sequitur. The key words, in our submission, are those before the comma.

We have not made reference in the outline explicitly to subsection (3) but might I draw the Court’s attention to it because it, in our respectful submission, does provide some useful context to the application of the provision and what it was intended to do in 1994. It notes, of course:

To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.

Then the example is a useful one because it makes clear that the historical presumption effectively from a statutory construction basis in favour of a taxpayer was specifically intended to have been overruled by the existence of subsection (1) and thus one can see, in our respectful submission, that the purpose of subsection (2) was, in essence, to preserve the penal rules that existed at the time and to ensure to use the language which we accept of her Honour Justice Mullins below that it was intended to be a safeguard in that respect from the extension of the purposive rule in subsection (1).

Can I take the Court then immediately to walk briefly through three paragraphs of the decision below to identify what we say was the error which is not something.....warrant a grant of special leave to this Court. Starting, if I may, at paragraph [33] of the decision below which is found at application book 52, and this is a precursor point to the primary error which we identify in paragraph [54] but importantly identifies – that her Honour identifies at 14A(1) applies to the construction of the word “chokes” in section 315A, that is, it is clear what her Honour was doing, that is, she was applying that provision of section 14A.

Then, at paragraph [34], her Honour again makes clear, having chosen appropriately to deal with the matter under subsection (1), that her Honour is then seeking because, in our respectful submission, it is clear and accepted by both the Court of Appeal and it appears by the Crown that there are at least competing constructions of the word “choke” in.....goes to the extrinsic materials and, in particular, the Not Now, Not Ever report in order to attempt to discern the purpose – the policy imperative that underlies the enactment of section 315A and her Honour does so by reference to 14B again, perfectly appropriately, identifying that the court was operating under that statutory regime.

As I have noted, it does not appear to be disputed by the Crown, in our respectful submission, properly so, that there are or were, depending on how one approaches it, two available constructions of the word “choke”. One, what we would say was, in fact, the more obvious traditional, if I can use a clumsy phrase, meaning of “stop the breath” and the other which the Court of Appeal found to be the meaning, that is effectively “hinder the breathing” or “hinder the breath”.

Then, as the Court knows by paragraph [57] of the judgment below, the court has determined that the purpose of the provision by reference to that report favours that broader construction. There is, in our submission, no doubt that by that process ‑ ‑ ‑

BELL J: Mr Holt, I am sorry to interrupt you, but you speak of two possible constructions. Another way of looking at it is that the word in ordinary usage may refer to hindering or stopping the breath, as in an attempt to, or the application of pressure to an individual’s neck, or may extend to stopping the breath altogether. The two are not exclusive of one another.

MR HOLT: I do not think I could contend, your Honour, that the construction that was favoured by the Court of Appeal was not, if I can put it this way, an available construction. We do not seek to contend for that, and in terms of the ‑ ‑ ‑

BELL J: What you have to establish to succeed on your argument is that it was a legal error for the trial judge to direct the jury that the element of proof of choking would be satisfied if they found, beyond reasonable doubt, that the conduct of your client had restricted the complainant’s breathing, and that was by applying pressure to the neck. Is that so?

MR HOLT: That is precisely so, your Honour, yes.

BELL J: If one were to just take the Oxford English Dictionary definition of the transitive verb “to choke”, one meaning is:

To suffocate by external compression of the throat; to throttle, strangle; to produce a sensation of strangling.

Now, surely that definition encompasses the notion of hindering the breath as distinct from actually preventing breathing.

MR HOLT: On that definition, and certainly on that last portion that your Honour cites, I cannot claim to the contrary. Of course, as your Honour knows from the materials that we have cited in the submissions, there are other dictionary definitions, the Macquarie in particular, that make clear – that propose, without any qualification, that the meaning of “choke” is to stop the breath and, of course, that was the conclusion that - and this did not bind the Court of Appeal, of course, reached in the Australian Capital Territory case that we have referred to, and in addition, the meaning of the word “choke” that had at least been assumed, though I accept not authoritatively decided, in the two earlier Queensland Court of Appeal cases that we have cited as well.

So, in our respectful submission, the best that could be said for the broader definition – if I could put it that way – is that it is available and, in fact, the preponderance of the material.....what the meaning might be – both in terms of the dictionary definitions which we have referred to and those other decisions – tend very strongly to suggest that it is the more limited meaning. That is where we say that the only way to prefer, indeed the way that the Court of Appeal did it explicitly – to prefer the more restricted meaning was, as her Honour Justice Mullins did, by going to the extrinsic materials to discern the purpose and apply section 14A(1) of the provision.

BELL J: So, notwithstanding that, at least, the OED – and I believe the Macquarie Dictionary treat the words – the “choke” and “strangle” – as synonyms, you contend that it is legal error on an indictment, particularising choking, to direct the jury in terms other than that they must be satisfied beyond reasonable doubt that the conduct of the accused operated to, in fact, stop the breath of the person choked.

MR HOLT: Yes, your Honour, we do. The word “choke”, of course, was the word that was particularised by the Crown in the indictment and it was that word which determined the act – the conduct which the applicant was charged with and which he had to meet. The Macquarie definition, as we have noted – I am sorry, I know this sounds like I am engaging in duelling dictionaries – I apologise – the Macquarie definition, as we have noted, is clear, in our respectful submission.....stop the breath and we have the support from the other cases that we have identified to that extent for that meaning.

Thus, in our submission, what her Honour did below – what the Court of Appeal did below – which was, effectively, to say there are at least competing meanings and we are going to move to a discernment of.....by reference to extrinsic materials to determine which section 14A(1) commands us to prefer, was an error. But I cannot pretend, your Honour, and do not, that if the Court was of a view that one did not even need to go to that point, in other words, that if that process by the Court of Appeal was a superfluous one, that there would be an error in this that would warrant the grant of special leave in the sense that it really is the constructional error, in our submission, that would warrant ‑ ‑ ‑

BELL J: To come back to the earlier point in this, in your submission, would it have been an error for the trial judge to direct the jury – the next element of the offence is that you must be satisfied beyond reasonable doubt that the accused’s conduct amounted to choking the complainant. “Choke” is an ordinary English word – it is a matter for you whether you are satisfied that the Crown has proved that element. Would that have been legal error?

MR HOLT: Yes, your Honour, we would contend that that would be legal error, effectively for exactly the same reason – because it would leave open, in effect, a range of meanings which, on a proper application of the principles of construction, would not readily have been available to the jury. Essentially, I come back to the same point. The only ‑ ‑ ‑

KEANE J: But, Mr Holt, pausing there if you might, apropos of your answer to the presiding Judge, I notice that at page 46 in paragraph [5] at about line 57, it is recited that:

It was probably for 70 seconds for which she could not breathe.

If the evidence was that the complainant could not breathe for 70 seconds and the jury were told to consider whether that amounted to choking, as an ordinary English word, would that be an error?

MR HOLT: Yes, it would, and for this reason in the context of this case. Whilst it was the case ‑ and we have made reference to that at paragraph 34 of our outline at page 73 – there was also a serious factual contest about that in the sense that the complainant made a video diary which was essentially consistent not with that but with, “I’m finding it hard to breathe. It’s just a panic attack because he didn’t have his hand around my neck and throat that much.”

That is why there was the argument below about how the jury would be directed because the Crown had, completely understandably, particularised its case by reference to both of those plain forms of choking, if I can put it that way, because there was a genuine factual issue about what the jury might conclude from the complainant’s evidence in light of that significant prior inconsistent statement.

So, in our respectful submission, the direction became important. Indeed, the direction may ultimately have been critical, which is why we say that this is an appropriate vehicle for the construction issue that we have identified to be resolved.

KEANE J: While I have interrupted you, you have mentioned that the Crown particularised the case as one of choking. I notice the form of words in the section is “chokes, suffocates or strangles”. Do I take it that your contention is that each of those is mutually exclusive, that “chokes”, “suffocates” and “strangles” are to be read as separate and distinct from each other?

MR HOLT: Can I answer that in two ways, your Honour. Firstly, no, I certainly would not contend that they were mutually exclusive, to use the language that your Honour first used, since there is no doubt that the conduct might sit across each and there is no doubt that.....on a Venn diagram and significantly overlap. Indeed, it would be an interesting question as to whether the Crown might be permitted to particularise a case
by reference to all three – and I have not considered that in detail, but I am not sure that would be improper in any way.

But here where – they certainly are different words and they certainly are not synonyms, formally so in the context of the section, and the Crown having chosen “choke” the focus must then be on what the meaning of “choke” is, and that is the way in which we have proceeded in terms of this application.

KEANE J: Thank you.

MR HOLT: Thank you. Your Honours, unless there are any particular matters I can raise, I would think in the context of the questions your Honours have asked, with respect we have gone to the heart of the issues and I would merely be repeating myself. So those are our submissions. May it please the Court.

BELL J: Thank you, Mr Holt. Yes, thank you, Mr Heaton. Mr Heaton, you may have your audio on mute.

KEANE J: We cannot hear you. You may be on mute. Perhaps you could get someone to assist you.

MR HEATON: Can you hear me now?

BELL J: Yes, that is better now. Thank you, Mr Heaton.

MR HEATON: Essentially, the Court of Appeal was faced with the contention that the narrower interpretation of the word “choked” that has been promoted in this application was the one which should have been applied in the circumstances of this case as it was put to the jury. So it is not, strictly speaking, a case where there is some inherent ambiguity in the words of the section themselves that creates the offence. This was more a question as to whether or not that narrow interpretation that was promoted on behalf of the applicant was the only interpretation that ought to have applied in the circumstances of this case.

We say that the application for special leave should be refused for two reasons. Firstly, the rules of statutory construction are well settled, including in regards to the application of section 14A(2) of the Acts Interpretation Act and, secondly, that this was, on the part of the Court of Appeal, a transparent process of reasoning applying those ordinary rules of statutory construction to the circumstances of the case that was presented in this case.

So, properly viewed, this is really just an unremarkable example of the application of the ordinary rules of statutory construction. What that meant in this case was that, when faced with the rival contentions as to the meaning of the word “choked” here, the court then looked at the extrinsic material, as they were entitled to do, to resolve what was said to be ambiguity in the meaning of the words used, and looked and applied the purposive test as section 14(1) advocates for, with the purpose of trying to identify what the true meaning of the words “as they were enacted” was intended to convey.

By that process, and by the process of applying what we would say were the ordinary rules of statutory construction, the court identified what the scope of the offence created by section 315A of the Criminal Code was. So in that sense, this was not a case of extending or creating criminal liability. Criminal liability was created by the legislature when they enacted section 315A. This process of applying the ordinary rules of statutory construction to the circumstances of this provision simply identified what the scope of that offence was, having regard to the purposive method for statutory construction.

BELL J: Another way of putting that would be to say it does not extend criminal liability because the ordinary meaning of the word “chokes” embraces constriction of the neck to hinder breathing, or words to that effect.

MR HEATON: I would respectfully agree. This, then, having been not a case in which criminal liability was created or extended by virtue of the operation of section 14(1) or the application of the purposive test of statutory construction, section 14A(2) had nothing to protect the applicant from, in the circumstances of this case.

I want to say something about the cases to which my learned friend has referred in support of this application. Firstly, the cases of Osborne and Lansbury were both cases that focused on the application of the offence created by section 315 of the Criminal Code. That is a section which is much more complex in its wording, but it also focuses on an act which is essentially intended to choke, suffocate, or strangle, which is done with a particular intention. So the gravamen of the offence is really the act done with an intention, with a particular intention.

It was never a concern or, indeed, a focus of the court, in either of those cases, to properly look at what the extent of the word “choked” meant in the context of that section, because it simply did not arise for consideration. In that sense, therefore, those cases do not assist to illuminate or, indeed, do not dictate that any particular interpretation or understanding of the word “choked” in this context ought to be applied.

Similarly, in the case in the Australian Capital Territory of Green (No 3) that does not, respectfully, assist to illuminate the proper meaning of the section as it appears in the Queensland legislation. The offence in the ACT, and the process of reasoning of the judge in uncovering the scope of the offence created by that provision, section 28(2) in the ACT – that offence appears in a different context.

Perhaps importantly, when regard is had, as the judge did, to the extrinsic material, on two occasions, that is in the explanatory notes but also in the presentation speech there was reference to the loss of breath as indicating the purpose for which the offence was being introduced. That is an important distinction between the circumstances of that offence and the purpose of it and the context in which the words appear in that jurisdiction.

It would be, in my submission, wrong to conclude that the words, albeit the same words that appear in a different context in a different jurisdiction, designed to achieve a different purpose, should be ascribed precisely the same meaning in a different jurisdiction in which the words appear in a different context and with an unambiguously transparent different purpose.

The applicant’s primary contention is that the Court of Appeal erred in the conclusion, which is essentially expressed at paragraph [54] of the court’s reasoning – that is, that section 14A(2) does not either expressly or implicitly preclude the purposive interpretation of an offence provision. In our respectful submission, that demonstrates no error.

The flaw in the process of reasoning can, in our submission, be identified if we look at it in this way. If the applicant’s contention as to the interpretation and the proper process of statutory construction were true, were correct, that would then deny section 14(1) of any real purpose. So that would deny the section which was designed to promote the purposive method of interpretation from having any real purpose in the context in which it appears in the Acts Interpretation Act.

I say that for this reason. Were the applicant’s contention to be correct, there would be no reason or no need to go looking for the alternative purposes if, at the end of the day, the court was bound to apply the least restrictive or the least far-reaching version of the words that appear in the penal provision.

So the exercise in statutory construction would then be not looking at the extrinsic material to identify what the purpose was, but simply analysing the various possible alternative interpretations and the scope of the words in the section, identifying what the least restrictive version is and then applying that. When looked at in that way, in our respectful submission, that demonstrates the flaw in the process of statutory construction which is promoted by the applicant in this particular case.

BELL J: Mr Heaton, can I just inquire ‑ ‑ ‑

MR HEATON: Yes.

BELL J: The trial judge in his directions to the jury at application book 23 explained that the issue at the trial was proof of the first element, that is proof that the applicant choked the complainant. His Honour explained that the complainant’s evidence was that the applicant had:

placed his right hand around her throat and squeezed it such that it caused her breathing to be restricted –

and she then gave an account of the symptoms she experienced. Then his Honour went on to explain that in his record of interview the applicant disputed that that had occurred. That was the issue at the trial – is that so?

MR HEATON: Yes.

BELL J: Was any issue taken about the sufficiency of the judge’s directions of what constituted choking?

MR HEATON: There was argument beforehand - in fact there was a no case submission made precisely on that point.

BELL J: Yes.

MR HEATON: So the directions that were given were the result of legal argument and a ruling of the trial judge.

BELL J: Yes.

MR HEATON: In a sense then, if I can just conclude, what we say is this was a process of applying the ordinary rules of statutory construction and, indeed, the – in particular – the purposive approach to statutory construction promoted by section 14(1) of the Acts Interpretation Act. By that process, in the court’s view the unambiguous meaning of the words used in the penal provision were identified. This was not therefore a question of extending or creating criminal liability by that process, but simply identifying the extent of the criminal liability that had been created by that offence. Properly viewed in that way, in our respectful submission, this case reveals no error and no basis upon which the grant of special leave should be made. Those are our submissions.

BELL J: Yes, thank you, Mr Heaton. Yes, Mr Holt.

MR HOLT: May it please the Court. What I need to do, in my submission, is to effectively defend the first part of the Court of Appeal’s reasoning because the first part of the Court of Appeal’s reasoning was to identify competing constructions and then to deploy, in effect, section 14A in order to resolve that by finding out what the purpose of the provision is.

So, if the Court of Appeal was right in the first part of that which, in our respectful submission, it was, with respect, then the question becomes what was the approach that was taken to the application of section 14A. If we are wrong about the first part, then there is no basis for a grant of special leave. I accept that without reservation.

BELL J: Yes.

MR HOLT: But, in terms of the second, the difficulty, in our respectful submission, with the Crown’s submission and with the approach the Court of Appeal took, it is by its reference back to a notion of the ordinary rules of statutory construction because this, of course, is a statutory regime for statutory construction. What paragraph [54] of the judgment below reveals is that the court effectively said the only place for subsection (2) is when you have applied the purposive rule and there is some ambiguity left.

The problem, simply enough, is that that means that one is applying section 14A(1) in a way which extends or creates criminal liability which is then, in our submission, in breach of subsection (2). The essence of the mischief here is that the Court of Appeal, with respect, applied the penal rule – as it was applied by this Court in A2 v The Queen – when, of course, there was no such equivalent provision. Those are our submissions in reply. May it please the Court.

BELL J: In our view, there are insufficient prospects that the outcome of any appeal to this Court would be successful to warrant the grant of special leave. Special leave is refused.

The Court will now adjourn until 3.00 pm.

AT 2.32 PM THE MATTER WAS CONCLUDED