Director of Public Prosecutions Reference No 1 of 2019 [2020] HCATrans 221 (11 December 2020)

Last Updated: 14 December 2020

[2020] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M70 of 2020

In the matter of ‑

DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 2019

Applicant

Application for special leave to appeal

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 DECEMBER 2020, AT 11.40 AM

Copyright in the High Court of Australia
KIEFEL CJ: MR B.F. KISSANE, QC appears with MR J.C.J. McWILLIAMS for the Director. (instructed by Office of Public Prosecutions)

MR D.A DANN, QC appears with MR C.T. CARR, SC for the acquitted person. (instructed by C. Marshall & Associates)

KIEFEL CJ: Mr Dann, given the questions that have been raised and the fact that this is a reference we might be assisted to hear from you first.

MR DANN: If the Court pleases. We have submitted, your Honours, that there a number of impediments, and very significant impediments, standing in the way of grant of special leave in this matter. The first and most fundamental impediment is that the case that the Director now seeks to advance in the High Court as to the correct definition of “recklessness” for every offence in Victoria involving recklessness is the same case that the Director was not prepared to continue to advance in the Victorian Court of Appeal. So, in that Court of Appeal we had a situation where a bench of five judges was convened to deal with what we submit is a uniquely Victorian issue. The Director started out with the same case that announced ‑ ‑ ‑

KIEFEL CJ: Well, of course, the fact that five judges were convened to sit on this matter does tend to point to the prospect that it was regarded by the court as a matter of some importance.

MR DANN: Yes, well, it had – and that is one of the points we seek to make, your Honour, that it has far‑reaching implications in terms of the operation of the criminal law in Victoria, and that is one of the points that we say counts against special leave, but I will come to that shortly.

So, our submission, your Honours, is that in circumstances where a deliberate choice was made to retreat from or abandon that original case in the Court of Appeal there is something incongruous about the Director now urging this Court to see this same case as a case worthy of a grant of special leave.

That retreat or abandonment occurred in a certain context because what was being put against the Director that in terms of the operation of Victorian criminal law and the way that is developed in terms of new offences being enacted on an understanding of Campbell recklessness, if I can use that term, maximum penalties being imposed and enacted against Campbell recklessness, mandatory sentencing, another consequence is being put in place on the back of an understanding of Campbell recklessness, foresight of probability.

It got to a point in that Court of Appeal hearing where, as Justice Priest recognised at paragraph 125 of that decision, the Director recognised the injustice of such a test by postulating and introducing a control involving the absence of social utility. So it is submitted not only did the Director retreat or abandon the case that is now sought to be put but there are consequences and there were consequences in the way that supported the appeal hearing ‑ ‑ ‑

KIEFEL CJ: Mr Dann, I think what you are referring to is the Director’s amendment of the reference to add the words “having regard to the social utility” of the act before the Court of Appeal, but that is not pursued in this Court.

MR DANN: Yes, your Honour, that is the point we are trying to make. This is a difference case – a different case is being put or attempting to be put in this case.

KIEFEL CJ: Is it a different case or is it just that there was an additional element to be considered in the Court of Appeal which this Court will not need to consider?

MR DANN: Let us say it is a different case, your Honour, because in the Court of Appeal you are dealing with the amended formulation that the Court had to deal with. All five judges recognised that that formulation introduced an objective element for all offences involving recklessness in Victoria. All five judges indicated if that was to happen, that is what the change that is sought to be made, that that was a matter for the Parliament in circumstances where, in terms of the origins of this particular offence and its accompanying offences in 1985/86, the Parliament, having regard to the Criminal Law Revision report had deliberately eschewed such a definition involving an objective element.

KIEFEL CJ: I thought the majority of the judges in the Court of Appeal approached the question in the first place from the point of view of history in terms of legislation.

MR DANN: Yes, they were able to, in a sense, reject the invitation to reconsider Campbell on three bases. The first basis involves consideration of the legislative history in respect of this particular provision and, in that context, they dealt with what was referred to as the re‑enactment presumption or endorsement. It in fact went further than presumption. It was referred to as an endorsement.

Then, in rejecting the invitation to reconsider Campbell the Court of Appeal, we say appropriately, dealt with this position they were asked to entertain of a Court of Appeal overturning its own decision and pointed to the fact that with this meaning and definition of “recklessness” foresight of probability had been acted upon so widely and largely in Victoria. Thirdly, the objective element that was sought to be introduced would be tantamount to judicial legislation. That is how the majority, in fact, disposed of the invitation to reconsider Campbell. They did not ‑ ‑ ‑

KIEFEL CJ: Just turning to that approach which had regard to whether or not the legislature had acted upon the approach taken in Campbell, I think it was because in 2013 new offences of intentionally and recklessly causing injury in circumstance of gross violence were addressed in terms of sentencing, was it not?

MR DANN: No, there was a whole range of aspects to it, your Honour. Firstly, there was the alteration of maximum penalty which had occurred on three separate occasions in respect to, and we say on an understanding of, Campbell recklessness because in the first – well, in 1997, for example, in introducing the ultimate maximum penalties, the Minister indicated that there had been consultation with over 100 judges, magistrates and major stakeholders in terms of the way these offences were being administered, the maximum penalties - and a point was made in the Court of Appeal in that exercise, that far‑reaching exercise, that Parliament must have been aware of the way, day in, day out in courts in Victoria, this offence and recklessness were being explained to juries, the settled understanding and meaning of that term.

KIEFEL CJ: The Sentencing Advisory Council described recklessness in terms of the probability of injury, which was consistent with Campbell. But how would that – are you saying that that would have actually informed the legislative choice or policy around sentencing? I am not quite sure of the connection there.

MR DANN: No, what we are saying is that it should be accepted that Parliament was aware of the way these offences were being explained to juries - should be taken to be aware of the settled meaning in Victoria of “recklessness” for all offences.

KIEFEL CJ: Parliament might be aware of it, but unless one could actually say it could be seen that Parliament has acted upon it, what is the problem with this Court having a look to see whether or not there is an available – a possibility of consistency available?

MR DANN: Yes, your Honour. That was the first area, the alteration of maximum penalties. The second area was the factors your Honour has pointed out to me, the Sentencing Advisory Council, which was the 2013 aggravated offences in terms of dealing with recklessly causing serious injury in circumstances of gross violence. But in enacting that offence and that particular maximum penalty, and alongside it, as the law developed, mandatory sentencing and mandatory requirements, that again the Parliament, as this Court has set out previously, should be taken to have been aware of that meaning and interpretation of “recklessness” and there are further examples.

We have pointed to one in the field of occupational health and safety where Parliament specifically referred to, in enacting and invoking a defence in an occupational health and safety context, the fact that the same tests and standards and maximum penalties would apply for the offence considered in Nuri? In Nuri the Court will understand that is the expression that was there set out. There is no difficulty in terms of recklessness in Victoria. It is the foresight of probability.

KIEFEL CJ: But, Mr Dann, even if one could say that the – even if it were suggested that Parliament was aware of the approach in Campbell towards recklessness, and may have even acted upon it, that is just one of the matters that this Court would consider in determining whether or not consistency is possible.

MR DANN: Yes. Yes, I accept that, your Honour.

KIEFEL CJ: What do you say about the, I think it was Justices Priest and Kaye who said there were material differences between the New South Wales and Victorian statutory provisions.

MR DANN: Yes. Your Honour, it got to that point after a consideration of the - respectively got to that point after a consideration of the history of this offence and the accompanying offences and the different history and different pedigree between these offences and, for example, the offence that the High Court and the New South Wales offence that the High Court was considering in Aubrey. So that offence, in terms of its pedigree and background, was rooted in the concept of malice.

This offence that we are dealing with, and all offences the subject, really, of this reference, come from a different pedigree and a different background. They do not owe their origins to malice and the concept of malice. They owe their origins to a different source, and that was set out for the Court of Appeal’s consideration and this Court’s consideration on this leave that that origin was the Criminal Law Revision report, and it was not simply an exercise in replacing offences that had previously involved the concept of malice with these offences.

STEWARD J: Mr Dann, may I ask you a question?

MR DANN: Yes, your Honour.

STEWARD J: In light of what was said in Aubrey, what do you say about whether Campbell correctly or incorrectly applied the spirit of Crabbe?

MR DANN: What was said in Aubrey was that it is not - because in Crabbe we are dealing with the offence of murder and the Court there spoke of the moral equivalence, and so forth, it did not necessarily extend to other offences and it could not just be taken, well, Crabbe is dealing with foresight of probability, thereafter every other offence should be dealt with in the same way in terms of foresight of probability – we accept that.

On the other hand, Aubrey, as was conceded in the Court of Appeal by the Director, did not involve an overruling of Campbell. So it still remained this task to look at the origins of this offence, the recklessly causing serious injury and other life offences, and when that task was undertaken it can be seen that the origins were different. But we were not dealing with recklessness under the umbrella of malice, we are dealing with a different concept.

STEWARD J: Can I ask you this question, then. I understand that recklessness was being dealt with in the context of malice in New South Wales and not in Victoria.

MR DANN: Yes.

STEWARD J: But why, in your view, would the concept of recklessness as it is picked up in both jurisdictions, why should it bear a different meaning?

MR DANN: Because, in the first place, the legislature in Victoria – they can be taken not to have just been simply replacing these offences and replacing the concept of malice and just using a different expression. The origins were these – that in that report, it was acknowledged that there was no consensus as to the meaning of “recklessness” – that this should be the recommendation or the recommended definition which involves an objective element and involves something short of probability. However, the Parliament eschewed that – deliberately eschewed that. So, it was left for the courts in Victoria to settle on a meaning.

There was guidance to be had from Crabbe and the court in Campbell recognised that Crabbe was dealing with murder. However, in terms of the operation of the re‑sections in Victoria – and their origins – it was appropriate that probability be the test. As Justice Kaye points out in his judgment, if you chase through the workings of the Crimes Act, there are a number of offences where “intentionally” and “recklessly” are grouped together as one with the same maximum penalty which gives rise to this same moral equivalence – or new moral equivalence point, such as, I think, in his judgment he referred to “threat to kill” as one. He refers to the fact in the very enactment that “intentionally and recklessly causing injury” were grouped together as one.

STEWARD J: If the Victorian legislation is as unique and.....as you suggest, why was it relevant in Campbell for the court to be inspired by what was said in Crabbe, a case dealing with murder?

MR DANN: Because in the first place the prevailing practice – as was recognised by the Director, up until the point of Campbell – had been that juries in Victoria were directed day in, day out as to the foresight of probability. So there was that existing practice which had caused no difficulty in Victoria and which was consistent with Crabbe. It did not depend wholly on Crabbe. It was a fact that the existing practice mirrored, joined up, married up with Crabbe and that was - and because we are entitled to seek that guidance in respect of this legislation being different legislation with a different origin in respect of malice in those offences.

So the next point militating against the grant of special leave is the sheer breadth of what the Director seeks to achieve, and that involves every single offence involving recklessness, a fundamental change, without the Director attempting to identify any of those offences, without the Director attempting to trace the history, statutory text or purpose of any of those offences.

In our application book we have referred to two examples that, in our submission, demonstrate or highlight the flawed nature of that process when you can see that in respect of those two examples they are firmly rooted in foresight of probability or knowledge and the understanding that comes with proceeding on that basis.

The next impediment is that just too much has happened in 35 years in Victoria since the enactment of this legislation, since Campbell, and we have tried to chart that history from pages 167 to 171 in the application book in terms of the creation of new offences, mandatory sentencing, mandatory non‑parole periods and what can be seen in respect of this particular offence, there has been a hive of legislative activity in terms of changes to the definition of “serious injury”, changes to the maximum penalty, aggravated nature of intent.

The one thing that has stayed the same, the one thing that Parliament has been content to allow to stay the same in terms of the administration of this offence in the court criminal justice system in Victoria, the one constant has been the meaning of “recklessness”, as it has been explained to juries. All around has changed, in terms of those matters that I have taken the
Court to, and we have taken the Court to in the application book. The one thing that has stayed the same has been this concept of recklessness.

As Justice Priest set out, in terms - I think there were 28 offences there that had been enacted, and should be taken to be enacted with Campbell recklessness in mind, so when you are dealing with the expansion of liability in respect of 25 or 28 offences, not just the expansion of a liability, but the expansion of a liability against mandatory sentencing, we say that is just another reason why the Court would not grant special leave. I think my time is up, your Honours.

KIEFEL CJ: Yes, thank you, Mr Dann. Mr Kissane, a few questions from my point of view. What do you say, firstly, about the change in the reference between the Court of Appeal and this Court? The other matter I would like you to address - Justice Steward might have others - is whether there are material differences between the two provisions.

MR KISSANE: Yes, thank you, your Honour. In terms of what is said to be the change in the application in this Court as opposed to the Court of Appeal, what we say is this, that in Aubrey the Court referred at paragraph 49 to the concept of social utility and there was much discussion in the Court of Appeal, as I understand it, about that concept and it was conceded by way of change that such a utility as set out in Aubrey at paragraph 49 had a role to play and our submission is that was the only change.

We do not see that as anything of significance in the sense that we come to this Court to argue that Aubrey – the test in Aubrey relating to possibility of foresight of serious injury rather than probability ought be the test in Victoria as it is in New South Wales and we submit that the court below, in effect, elevated the discussion of social utility in paragraph – that is referred to in paragraph 49 of Aubrey and that is something we accept but it is not, in our submission, of any significance.

In other words, the original case was that Aubrey should apply in Victoria. We maintain that. We accept that paragraph 49 in relation to social utility would have application in Victoria as it does in New South Wales. So we say that any change in cases is of no moment – is of no significance and that our case, the DPP reference essentially has always been based as it is on Aubrey that foresight of the possibility should apply in Victoria as Aubrey says it does in New South Wales.

In terms of material differences, your Honour, we say there are no material differences either between malice as it was defined in Victoria prior to Crabbe and malice in New South Wales as it was defined. What happened was that, we submit, Victoria took a wrong turn. We reply in Crabbe to offences other than reckless murder and what we seek to do is to bring Victorian law back in line with New South Wales.

New South Wales of course has moved to a position where they now have offences of recklessness. So the position currently is that in relation to offences of recklessness in New South Wales, the test would be foresight – a common law test would be foresight of possibility of harm. In Victoria, the test as it stands following the Court of Appeal’s decision would be that foresight of probability of harm, or in this case serious injury, is what would be required.

So our submission is, despite the judgment in the Court of Appeal, that there really is no material difference between Victoria and New South Wales and that the common law definition of “recklessness” should apply across both jurisdictions.

STEWARD J: Mr Kissane, may I ask a question. The Director’s reference to the Court is expressed to pose a question for all offences other than murder. Even were it to be granted, would it be open to this Court to answer the question, but confine it to section 17 of the Crimes Act?

MR KISSANE: Yes, indeed, your Honour. The reference comes from the effect from paragraph 47 of this Court’s decision in Aubrey, where this Court refers to sections 18 and 35 of the Crimes Act (NSW), and then goes on to discuss Crabbe and finally says that Crabbe does not necessarily apply to statutory offences other than murder. So that is where that construction comes from and we would be – the instant offence that the person was acquitted of that is relevant was recklessly cause serious injury, which is section 17.

It said that, your Honour, there is a suite of offences.....Victoria in the same way as there is in New South Wales from about section 17 through to somewhere, and I cannot quite remember exactly, but somewhere in the 30s – 31, my learned junior tells me – that deals with offences against the person. It could certainly be confined along those lines to offences against the person in the Crimes Act, as opposed to the broad way which, as I have indicated, picks up the wording of Aubrey.

KIEFEL CJ: I see, Mr Kissane, in the proposed ground of appeal that the first ground refers to the meaning of “recklessly” in section 17 of the Crimes Act. So do I take it, in the answer that you gave to Justice Steward’s question, that the Director’s case before this Court, in relation to the reference, will be run on the basis of the definition of “recklessly” in section 17, and to the offences to which it applies?

MR KISSANE: Yes, your Honour, subject, of course, to – there is no definition of “recklessness” in the Crimes Act so it will, obviously, have broader application but that would be a matter to be determined, presumably on a case‑by‑case basis. We would certainly be content to confine it to the meaning of “recklessness” in those sections in the Crimes Act that relate to offences against the person. If that answers your Honour’s question.

KIEFEL CJ: Section 17 being one of them.

MR KISSANE: Section 17 being one of them, yes.

KIEFEL CJ: Section 17 being the provision that gave rise to this reference.

MR KISSANE: Section 17 is the provision that gave rise to this reference, your Honour.

KIEFEL CJ: Yes, I see. Mr Dann, do you have anything in reply? I realise we made you go first.

MR DANN: Yes, your Honours. Two matters, or areas, that I just wanted the opportunity to reply. One, the change of case submission from my learned friend. He says it is of no moment. That does not accord with what occurred in the Court of Appeal where, because of what this change would involve in terms of so many offences – mandatory sentencing or the consequences – the expansion of liability – as Justice Priest set out – because of what happened – there was, in that court before him, a recognition of the injustice of that occurring. So, it is not a minor change where that injustice has been recognised and an amendment made because of it. It is not a minor change to try and strip it back to what it was before.

Secondly, in respect to this – I am not quite sure where my learned friend ended up as to, is it just section 17 or is it how many offences is it when he started talking about a case-by-case-basis. The recipe for inconsistency and confusion and difficulty for juries is high here in terms of isolating, if we do, section 17 to have one meaning of recklessness and accompanying offences to have other meanings of recklessness. As a canon of statutory interpretation, the consistency of interpretation within one statute involving many, many offences is, of course. normally to be achieved - or the aim is to achieve such a consistency.

Confining this reference or this grant of leave to section 17 does not point to consistency. It points to inconsistencies, where juries would have to be given separate directions, potentially, for offences that they are - or before them by way of alternative offences. The question would then arise
in terms of the aggravated version of section 17, section 15B, what would the direction be there in terms of recklessness? Would there be different directions being given in respect of the aggravated offences as opposed to the section 17 offence.

KIEFEL CJ: Mr Dann, it would of course be open to this Court, regardless of how wide the reference is, to limit it to section 17.

MR DANN: Yes.

KIEFEL CJ: But you say that that would create a problem?

MR DANN: That creates a different set of problems, if I can use that expression, your Honour. The sort of “one fell swoop” approach that they started with today, that creates one set of problems. Confining it to section 17 creates another whole set of problems. in our respectful submission. If the Court pleases.

KIEFEL CJ: Yes, thank you, Mr Dann. There will be a grant of special leave in this matter. Mr Kissane, how long do you think would be needed for a hearing?

MR KISSANE: A half‑day matter, your Honour, I would have thought.

KIEFEL CJ: Would you agree with that, Mr Dann?

MR DANN: Yes, your Honour.

KIEFEL CJ: Yes, thank you. Would you ensure that your instructing solicitors obtain a copy of the directions by way of timetable for the matter.

MR DANN: Yes, your Honours, we will. If I could just raise one matter, your Honour. At 157 of the application book, the Director has agreed to indemnify the costs of the acquitted person. So we would seek an order in respect of those costs for the application for special leave and the appeal.

KIEFEL CJ: Yes, thank you for reminding me about that. Mr Kissane, the grant of special leave will be conditioned upon the indemnity offered by the Director.

MR KISSANE: That is understood, your Honour.

KIEFEL CJ: Yes, thank you. The Court will adjourn.

AT 12.14 PM THE MATTER WAS CONCLUDED