Garth v R

BATHURST CJ: By an indictment presented at the District Court at Parramatta on 15 October 2015, the applicant, Hugh Baccalla Garth (the applicant), was charged with the following offences:

The applicant was not arraigned on the indictment and the copy of the indictment provided to the Court has not been signed by a Crown Prosecutor. No point was taken as to these matters.

By notice of motion filed on 9 November 2015, the applicant sought an order that the indictment be quashed on the ground that Count 1 did not disclose an offence known to law. In the alternative, an order was sought that the indictment be permanently stayed as an abuse of process of the court. The application for a permanent stay was ultimately abandoned.

The basis of the application was that the offence created by s 25A(2) and s 25B of the Crimes Act 1900 (NSW) (Crimes Act) was unknown to law. The argument, broadly speaking, was that s 25B was repugnant to the judicial process in a fundamental degree and that it distorted the institutional integrity of the court by requiring the court to proceed in a manner that does not ensure equality before the law and in a manner that involves arbitrary and non-judicial punishment.

The primary judge dismissed the motion. I have dealt with her Honour’s reasons in more detail below but her conclusion was that s 25A of the Crimes Act could be severed from s 25B and that, in those circumstances, the indictment disclosed an offence known to law irrespective of the constitutional validity of s 25B.

Section 25A of the Crimes Act provides as follows:

Section 25B provides as follows:

These sections were inserted into the Crimes Act with effect from 31 January 2014. In the Second Reading Speech that introduced the legislation, the following remarks were made:

The primary judge referred to the generally settled practice of declining to answer constitutional questions where it was unnecessary to do so. She stated that, in her view, it was difficult to see how the applicant would suffer significant prejudice if it was determined that s 25B could be severed from s 25A and that, if s 25A standing alone disclosed an offence known to law, the trial could proceed.

The primary judge concluded, relying on s 31(2) of the Interpretation Act 1937 (NSW) (Interpretation Act), that s 25A(2), which her Honour described as the offence creating provision, was capable of standing alone irrespective of any separate section providing for a mandatory minimum penalty. In those circumstances, the primary judge dismissed the notice of motion without finding it necessary to consider the constitutional question.

The applicant contended the primary judge was in error in adopting this approach.

The applicant submitted that the question of whether it is necessary to determine a constitutional issue depends on whether there exists a state of facts which makes it necessary to decide the question in order to do justice and determine the rights of the parties. He submitted that “necessary” means material to the determination of the controversy and that it was not unnecessary simply because the issue could be determined at a later point in time.

In that context, the applicant submitted that it was necessary to identify the justiciable controversy. He submitted that, in the criminal jurisdiction, the particular controversy is not split into the trial and sentencing hearing. He submitted that the punishment of offences encompasses both the trial and the imposition of sentence in a single judicial controversy.

The applicant submitted that, in the present case, the Crown alleged that he was guilty of an offence against s 25A(2) of the Crimes Act and liable to punishment in accordance with s 25B of that Act. He submitted that the justiciable controversy therefore encompasses the assertion by the Crown that the applicant is guilty and liable to punishment under s 25B. He submitted that that assertion is implicit in the indictment. The applicant submitted that the primary judge proceeded on an erroneous basis, namely that the accused must be convicted before there is a justiciable controversy about his liability to punishment.

Senior counsel for the applicant submitted, in effect, that an indictment which only relied on s 25A to the exclusion of s 25B would be a different indictment although “it may look the same”. She submitted that an indictment not relying on s 25B would mean that the substance and character of the offence changed completely because the accused would be going to trial for an offence that did not contain a mandatory minimum sentence and was thus in a different position in terms of appreciating and determining what his or her plea might be. She submitted that s 25B was inextricably entwined with s 25A and with the creation of the offence.

Senior counsel for the applicant placed some reliance on that passage of the Second Reading Speech to which I have referred above at [8]. She submitted that, in the present case, it was not the intention of the legislature that s 25A(2) would stand alone. She submitted that the minimum penalty was inseverable from the offence.

Senior counsel for the applicant also submitted that the primary judge was in error in relying on s 31(2) of the Interpretation Act, submitting that it would only arise if s 25B of the Crimes Act was held to be constitutionally invalid.

Senior counsel for the applicant also submitted that the constitutional question should be determined as a matter of procedural fairness and, more broadly, that it was in the interests of justice and the administration of the criminal law for offenders to understand their liability to punishment.

The practice of declining to deal with a constitutional issue unless it is necessary to do so is well established. In Lambert v Weichelt (1954) 28 ALJR 282, Dixon CJ stated that “[i]t is not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties”: at 283. Although his Honour was referring to the High Court, that practice is common to all courts in the judicial hierarchy.

In Universal Film Manufacturing Company (Australasia) Limited v State of New South Wales (1927) 40 CLR 333; [1927] HCA 50, Isaacs ACJ stated that “[a] Court will not proceed to declare a statute invalid unless that be necessary as a step in determining the rights of parties”: at 342.

More recently, in Wurridjal v The Commonwealth (2009) 237 CLR 309; [2009] HCA 2, Crennan J referred to the settled practice to which I have referred: at [355].

In that context, it must be remembered that the issue between the parties in the present case is whether Count 1 on the indictment discloses an offence known to law. If this can be determined without having to consider the constitutional challenge to s 25B of the Crimes Act, then the latter issue should not be considered.

As the applicant pointed out, an indictment must identify the nature of the offence and the manner in which it has been committed and the indictment must disclose an offence punishable by law: R v Mai (1992) 26 NSWLR 371 at 377; Doja v The Queen (2009) 198 A Crim R 349; [2009] NSWCCA 303 at [5].

The essence of the applicant’s argument was that, as s 25B was constitutionally invalid, the offence charged was not one punishable by law. The difficulty with this argument is that the offence is punishable by s 25A(2) itself, which provides for a maximum penalty of 25 years. Section 25B does not impose a punishment. Rather, it operates to impose a constraint on the sentence which can be imposed. Even if the constraint is constitutionally invalid, an offence under s 25A(2) remains an offence punishable by law.

A somewhat similar situation was considered by this Court in Ngo v The Queen (2013) 233 A Crim R 121; [2013] NSWCCA 142, an appeal by Mr Ngo against a life sentence imposed on him for the murder of Mr John Newman, an elected Member of the Legislative Assembly of NSW. At the time of the offence, s 19A of the Crimes Act provided as follows:

Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) came into force after the date of Mr Newman’s murder, but before Mr Ngo was sentenced for the offence. The section was in the following terms:

The appellant in that case sought to argue that the sentencing discretion miscarried on the basis that the sentence was imposed pursuant to s 61(1) of the Sentencing Procedure Act and that that provision did not have retrospective effect.

The argument was rejected. In the course of her judgment, Simpson J (as her Honour then was), with whom the other members of the bench agreed, made the following remarks concerning the interaction of s 19A of the Crimes Act and s 61(1) of the Sentencing Procedure Act (at [64]-[65]):

Section 25B of the Crimes Act, in my opinion, similarly does not operate as a penalty-creating provision. Any punishment is imposed by s 25A(2).

The applicant sought to overcome this difficulty by submitting that, as a matter of construction, s 25B was inextricably intertwined with s 25A(2) and with the creation of the offence. The difficulty with this argument is that it does not reflect the structure of the legislation. The legislature deliberately separated the offence creating provision from what I have described as the constraint. To read the section in the manner suggested by the applicant would be contrary to that express legislative intention.

Little assistance is to be gained from the Second Reading Speech. The passage to which I have referred above at [8] does no more than summarise the effect of the legislation. It says nothing as to whether the punishment is imposed by s 25A(2) or s 25B.

In those circumstances, the primary judge was correct in concluding that the indictment, so far as it related to Count 1, disclosed an offence known to law.

I should add two matters. First, although the primary judge placed some reliance on s 31(2) of the Interpretation Act, that section and the principles relating to it would only fall for consideration if it was concluded that any part of the legislation was invalid: Tajjour v State of New South Wales (2014) 254 CLR 508; [2014] HCA 35 per Gageler J at [168]-[178]. Having regard to the view I have taken, no question of severance or of reading down the legislation arises in the present case.

The second matter is this: the applicant complained that, absent determination of the constitutional validity of s 25B, he has been unable to properly assess whether he should plead to the offence or otherwise. Whether or not this is the case, it does not provide a justification for dealing with an issue that does not arise in the proceedings, even if the Court had power under s 5F of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) to do so. Further, this decision does not preclude the applicant from seeking relief other than an order quashing the indictment. It may be that the applicant would have standing to seek declaratory relief as to the constitutional validity of s 25B: see CGU Insurance Ltd v Blakeley (2016) 90 ALJR 272; [2016] HCA 2 at [102] and the cases there cited. However, this Court, constituted as a Court of Criminal Appeal under the Criminal Appeal Act, has no jurisdiction to hear proceedings for such relief. Its only jurisdiction is to hear the appeal under s 5F of the Criminal Appeal Act seeking an order that the indictment be quashed.

In these circumstances, leave to appeal should be refused.

BEAZLEY P: I agree with Bathurst CJ.

SIMPSON JA: I agree with Bathurst CJ.