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Tuesday, 1 November 1983
Page: 2124


Mr SPENDER(6.03) —The Bill before the House, which deals with the transfer of prisoners for the purpose of trial or for welfare purposes, springs, I suppose one could say, out of a fundamental principle of English and Australian law; that is, that crime is generally local in nature and is primarily the concern of the authorities of the place where it is committed. This proposition, which grew up in English law and which was accepted in our Federal system, is intelligible enough when applied to countries. For example, it is obvious that a murder by an Australian citizen of another citizen or of a foreigner whilst overseas should be tried in the country where the murder takes place. If an Australian citizen commits an offence of drug trafficking in Thailand, he must take his chances under Thai law, harsh though he may think it is and harsh though it may be by comparison with the law in Australia. But the principle becomes very much less intelligible in a Federal system. There is no Australian criminal code. Penal offences may be created by the Commonwealth only as an incident to the exercise of power given to the Commonwealth under the Constitution, such as Commonwealth powers over Federal Teritories or over Customs. The great majority of criminal actions are caught by State laws or State codes, which themselves are complemented or supported by the criminal law as it has been developed in the courts. I give the example of the principles in relation to what have been called common law misdemeanours.

Let us look at some of the fundamental disadvantages of the Federal system. First of all, the Federal criminal laws, whilst they apply throughout the Commonwealth, have only the most limited operation. Next, State criminal laws as a general rule apply only within the boundaries of the State which made the law. Thirdly, an act which is a criminal offence in one State may be quite legal in another. For example, there are large numbers of regulations of conduct on which different views may be taken by different States, ranging from driving offences to offences relating to the possession of marihuana, to give but two instances. Fourthly, maximum penalties for the same criminal act may vary depending on the State in which the act is carried out. Fifthly, there may be different defences to the same crime. For example, in one State there may be no defence of diminished responsibility to murder. In an adjoining State that defence may exist, with the possibility, of course, of major differences in the outcome of a trial on the same set of facts. Lastly, and this is the main purpose of the Bill before the House, the present law prevents a prisoner being moved from one jurisdiction to another to stand trial until he has served his prison term in the first jurisdiction.

It is worth one or two minutes to illustrate the bizarre results that can flow from a system which allows each State to provide separately for its own criminal code. That is what we have in the absence of a Commonwealth code or a common criminal code-a code that operates in precisely the same form throughout the Commonwealth. The bizarre consequences that can flow from the various State systems are illustrated by a case which went to the High Court in 1980. That was the case of Ward v. the Queen. The question that the Court had to determine was where the boundary of Victoria lay. Under an Act of the old imperial Parliament it was declared for the purposes of clarifying matters-although in the light of the exceedingly long judgment by His Honour Mr Justice Stephen it did not go a great distance to clarifying matters-that 'the whole Watercourse of the said River Murray, from its Source to the Eastern Boundary of the Colony of South Australia, is and shall be within the Territory of New South Wales'.

One may ask: What does that matter in a criminal case? In this case it was all- important because the appellant, a man called Ward, shot and killed another man on the banks of the River Murray. The shooting took place on the Victorian side of the river. That is, there was no doubt that Ward fired his gun from the Victorian side. When he fired his gun he was at the top of a steep bank of the river, Reed was about 30 feet below, and he was fishing. Ward was tried before a judge and jury of the Supreme Court of Victoria. The jury found that when Reed was shot, both the dead man and the accused were in Victoria. Mr Ward appealed. The point of the appeal was that the dead man was not in Victoria; he was in New South Wales. If he was in New South Wales Ward's conviction for a crime committed in Victoria had to be overturned, although there was no doubt at all, and no appeal was raised, about the fact that Ward had fired the shot and killed Reed.

I will not trouble the House with the very long and learned judgment of Mr Justice Stephen with whom the other members of the Court generally agreed, but for the purposes of determining this case, seven justices sat. The two reasons for the importance of the decision were, first of all, that if the act had not taken place in Victoria, Ward should have been acquitted and could be tried only in New South Wales and, secondly, the defences available in New South Wales were different from the defences available in Victoria. Let me refer briefly to what was said by Mr Justice Stephen when he pointed out:

The applicant-

that was Ward-

now seeks special leave to appeal to this Court on the sole ground of misdirection as to the location of the boundary between Victoria and New South Wales.

One might think that that is a rather bizarre ground on which to rest an appeal on a conviction of murder. Nevertheless, as I have said, it was the only ground. Mr Justice Stephen stated:

Its location has especial relevance since the Solicitor-General for Victoria accepts that, for the purposes of this case, it is, to use the terminology adopted by Glanville Williams . . . the terminatory, as distinct from the initiatory, theory that will determine venue.

Put differently, it is a matter of where one is shot, not where one is shot at from which will determine where the accused should be tried and what law should be applied. His Honour said:

That is to say, it is not where the physical act of Ward was done but where that act took effect upon its victim.

That is to say, where the victim got the bullet. His Honour, in a distinguished, lengthy, thoughtful and learned judgment traced the law.


Mr Jacobi —Is this Stephen?


Mr SPENDER —Mr Justice Stephen, 142 Commonwealth Law Reports at 308, in answer to the interjection from the honourable member for Hawker. The judge came to the conclusion that at the time the killing took place the man who was killed was in New South Wales. Therefore the appeal had to be allowed, in his view, and the judgment set aside and quashed so that Ward could then be dealt with only by a New South Wales judge and jury. Mr Justice Murphy pointed out in his judgment that a very practical consequence would follow from the success of the appeal. He said:

If the appellant is correct, he would be liable to trial for murder in New South Wales. However the appeal is not a mere academic exercise; if he were tried in New South Wales it would be open to him to raise a defence of diminished responsibility which reduces the crime from murder to manslaughter. This defence is not available in Victoria.

The appeal was upheld. I do not know what the result of the trial in New South Wales was but the defence of diminished responsibility would have been available to Ward in New South Wales. It was not available to him in Victoria. Is it not quite remarkable that in this country a case of murder and the question of whether or not a court was competent to try a case depended on an old imperial enactment about the location of the River Murray? Is it not astonishing that on the purely technical point that the dead man was a few yards inside New South Wales the result was that the decision was overturned and there was to be a new trial? The moral of that case is that the time is long overdue for a common criminal code throughout Australia, at the very least for important offences.

The Transfer of Prisoners Bill seeks to overcome some of the limitations of the Federal system which operate to prevent speedy and fair administration of justice-fair not only to the accused but also fair in the public interest. An accused person should be brought to trial speedily. Otherwise, of course, if the law were allowed to stand as it presently is, a person who is charged with an offence in, say, the State of New South Wales and who has been a prisoner of the Commonwealth for a period of, say, five years, cannot be tried until he is released from prison. A great deal can happen while he is in prison. Witnesses may die or disappear, their memories may deteriorate, and documents and police records may be lost. So at the end of the day, the defendant is in a happy position; a good, strong case will simply vanish through the attrition of time. The Bill therefore seeks to overcome that deficiency. The public has an interest in guilty people being convicted, just as the public has an interest in ensuring that a person who is charged has a fair trial, but never let us forget the public interest in the conviction of guilty people.

The Transfer of Prisoners Bill, as outlined in the explanatory memorandum, therefore seeks to state what is said is a general outline of the Bill. The purpose of the Bill is to permit the transfer within Australia for welfare purposes or trial of prisoners who have been sentenced to terms of imprisonment for offences against laws of the Commonwealth and the various Territories. There are two aspects to the Transfer of Prisoners Bill; first of all, there is the transfer of prisoners for trial. This is to be accomplished by a series of provisions that appear in clauses 8 to 13 of the Bill. The Deputy Prime Minister (Mr Lionel Bowen) in his second reading speech said that not only could such transfers be made in effect at the instance of the Attorney-General but also that these provisions will also be of benefit to prisoners who are anxious to have all outstanding charges in different jurisdictions dealt with rather than serve a sentence in one jurisdiction and thereafter be extradited to another jurisdiction. I think that is a possible view of the legislation, but speaking as a practitioner I have never known of an accused person, a person who is accused on a serious criminal charge, who was particularly interested to rush to justice when the case against him was strong. Generally speaking, if one is in gaol and one knows that some charges are hanging over one's head I think one would be inclined to seek to defer those charges and hope that in the meantime problems may work in one's favour, memories may deteriorate and perhaps even some assistance could be given to the deterioration of memories. As I say, evidence may disappear.

I do not think it is necessary to take the House in any detail through the provisions. It suffices to say that the Bill provides for applications for transfer to stand trial on a charge in respect of an offence against a law of a Commonwealth or a territory and also applications for transfer to stand trial on charges in respect of an offence against a law of a State. The application in each case is made in respect of Commonwealth prisoners. It is a curiosity of our Federal system that in order for this legislation to work and in order for it to have application to persons who are State prisoners-that is, persons who are in State gaols, having been convicted for violations of State laws-we have to have supporting legislation passed by all of the six States. Provision is made in the Bill for a hearing, the hearing of an application for transfer before a stipendiary magistrate and provision is made for grounds under which a stipendiary magistrate should refuse to grant the order. As well, an appeal provision permits an appeal to go to a superior court when either an order has been made by the magistrate that a prisoner should be transferred for trial or when an order has been refused. When the appeal is heard there is specific provision, it is an unusual provision but I believe a good one, that in reviewing the decision-it is called a review rather than an appeal but effectively it amounts to the same thing-the review shall be by way of a rehearing and evidence in addition to, or in substitution for, the evidence given in the proceeding resulting in that decision may be given with the review. So when the decision is being reviewed, the reviewing court has a fresh look at the whole of the evidence and can look at further evidence. That seems to me to be sensible and fair.

The only question that I would ask which the Deputy Prime Minister may be able to help me on is this: Specific provision is made in clause 13 for representation where an application has been made for a transfer order. I presume that if an application were made and it were dismissed by reason of one of the grounds on which an application can be dismissed, such as that the application has not been made in good faith, an order for costs would be made in favour of the person who had successfully resisted the application that he be transferred. Perhaps that is picked up by State legislation, perhaps it is assumed that State legislation would give that power, but recalling that we are dealing with a criminal matter and recalling that in criminal cases ordinarily costs are not awarded to the successful defendant, it is something that I think the Government should direct its attention to.

I pointed out that as well as applying to cases where it is thought to remove a prisoner from one jurisdiction to another, there is also provision for transfer on cases of welfare; for example, where it is in the welfare of the prisoner because he is in a part of the country which is quite a long distance away from the part of the country where his family may live. I think it is sensible and humane that those provisions should be enacted.

To sum up, the Opposition supports the proposals. I understand that these proposals go back to the time of the previous Government and are a continuation of work done or commenced under the previous Government. The Bill illustrates the ongoing nature of law reform. I commend the Government for bringing it forward. One can only contrast the way in which the Government is able to deal with this kind of Bill, which is an important Bill, with its incomprehensible failure thus far to present to us even an exposure draft of a Bill for a national crimes commission. Whatever view one might have of a National Crimes Commission, all of us in this House believe that organised and sophisticated crime is a matter of immense national importance. Perhaps now that the seminar the Attorney-General, (Senator Gareth Evans) called back in June has been had and now that he has had three months or so to digest the learned dissertations of that seminar, we could see some action in the field of a National Crimes Commission.