R v Ali Asgha Donyadideh and Others [1993] ACTSC 56; (1993) 115 ACTR 1 (7 June 1993)

SUPREME COURT OF THE ACT

THE QUEEN v. ALI ASGHA DONYADIDEH and OTHERS
Nos. SCC93-103 of 1992
Number of pages - 7
Constitutional Law
[1993] ACTSC 56; (1993) 115 ACTR 1

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles CJ(1)

CATCHWORDS

Constitutional Law - Australian Capital Territory - Supreme Court of the Australian Capital Territory - Jurisdiction to hear charge of offences against Commonwealth Statutes applying indifferently throughout Australia.

Constitutional Law - The Constitution, s.75 - whether offences against the Crimes (Internationally Protected Persons) Act 1976 are matters arising under any treaty - whether offences are matters affecting consuls or other representatives of other countries - whether Commonwealth is a party to prosecutions.

Constitutional Law - The Constitution, s.75 - exclusiveness of High Court's original jurisdiction - whether ACT Supreme Court has jurisdiction to hear matters within High Court's original jurisdiction - The Constitution, sub-ss.75(i)-(iii) - whether ACT Supreme Court has "belonging" jurisdiction.

The Constitution, ss.75, 76 and 77.

Crimes (Internationally Protected Persons) Act 1976, ss.7, 8 and Schedule.

Public Order (Protection of Persons and Property) Act 1971, s.16.

The Judiciary Act 1903, ss.39 and 78B.

Bluett v. Fadden (1956) 56 SR (N.S.W.) 254.

Felton v. Mulligan and Another [1971] HCA 39; (1971) 124 CLR 367.

The United States v. Ortega (1826) 11 Wheat 469.

Osborn v. Bank of US 9 Wheat 854.

The King v. Kidman and Others [1915] HCA 58; (1915) 20 CLR 425.

Spratt v. Hermes and Another [1965] HCA 66; (1965) 114 CLR 226.

Lorenzo v. Carey (1921) 29 CLR 255.

HEARING

CANBERRA, 6 and 7 May 1993
7:6:1993

Counsel for Prosecution: Mr. J.I. Fajgenbaum, QC

Mr. P. Coghlan

Counsel for the accused: Mr. G. Wendler

Counsel for the ACT Attorney-General: Mr. K. Crispin, QC Mr. P. Walker

Solicitors for Prosecution: Commonwealth Director of
Public Prosecutions

Solicitors for the accused: Maliganis Edwards Johnson

ORDER

THE COURT DECLARES THAT:
It has jurisdiction to try the charges on the indictment presented against the accused.

DECISION

MILES CJ The eleven accused persons were committed for trial by a Magistrate and an indictment was presented in this Court. By that indictment all eleven were charged with offences against sub-s.8(2) of the Crimes (Internationally Protected Persons) Act 1976 (two counts) and against sub-s.8(3) of the same Act (four counts). They were all charged with further offences against s.16(a) of the Public Order (Protection of Persons and Property) Act 1971 (two counts) and one offence against s.16(b) of the same Act. Seven of them were charged with a further offence against sub-s.8(3B) of the Crimes (Internationally Protected Persons) Act 1976 (the IPP Act).

2. At a callover in this Court in the absence of all accused, counsel on their behalf indicated that the jurisdiction of the Court to try the charges under the IPP Act would be challenged. Subsequently, all accused were arraigned without a jury panel in attendance. Each pleaded not guilty. A date was fixed for hearing legal argument on the question of jurisdiction. Pursuant to s.78B of the Judiciary Act 1903, notice was given to the Attorneys-General of the States and of the Northern Territory and of the Australian Capital Territory. Save for the latter, none sought to be heard on the question of the Court's jurisdiction. Counsel for all accused appeared to argue that the Court lacked jurisdiction. Counsel for the Commonwealth Director of Public Prosecutions and counsel for the Attorney-General of the Australian Capital Territory appeared to argue that the Court possessed jurisdiction.

3. Put simply, the argument that the Court lacked jurisdiction was as follows:

1. The charges fall into one or more of the categories of matters
enumerated in s.75 of the Constitution and in which the High Court has
original jurisdiction.
2. Parliament may confer jurisdiction in the matters enumerated in
s.75 on those additional courts specified in s.77 of the Constitution,
but only on those courts so specified, namely federal courts and State
courts invested with federal jurisdiction.
3. The Supreme Court of the Australian Capital Territory is neither a
federal court nor a State court vested with federal jurisdiction and
therefore has no jurisdiction in such matters.

Are the charges matters within s.75 of the Constitution?
4. Section 75 of the Constitution provides as follows:

"Original jurisdiction of High Court
75. In all matters -
(i) Arising under any treaty:
(ii) Affecting consuls or other representatives of other countries:
(iii) In which the Commonwealth, or a person suing or being sued on
behalf of the Commonwealth, is a party:
(iv) Between States, or between residents of different States, or
between a State and a resident of another State:
(v) In which a writ of mandamus or prohibition or an injunction is
sought against an officer of the Commonwealth:
the High Court shall have original jurisdiction."

5. It was submitted on behalf of the accused that the charges are within one or more of the first three enumerated matters.

(i) Matters arising under a treaty
6. The offences in respect of which the charges are laid are created by s.8 of the IPP Act. Sub-section 8(2) provides that a person who commits an attack (other than murder or kidnapping) upon the person or liberty of an internationally protected person is guilty of an offence against the Act punishable on conviction to imprisonment according to the effect of the attack. Sub-section 8(3) provides inter alia that a person who intentionally destroys or damages (otherwise than by means of fire or explosive) any official premises or means of transport of an internationally protected person is likewise guilty of an offence against the Act punishable upon conviction by imprisonment not exceeding ten years. Sub-section 8(3B) provides that a person who intentionally destroys or damages by means of fire or explosive the official premises of an internationally protected person is guilty of an offence under the Act punishable upon conviction by imprisonment not exceeding 15 years.

7. By s.7 the IPP Act gives approval to the ratification by Australia of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, that was opened for signature at New York on 14 December 1973, a copy of the English text of which is set out in the schedule to the IPP Act. Australia is a signatory to the Convention.

8. Sub-section 3(3) provides inter alia that, except so far as the contrary intention appears, an expression used in the Act and in the Convention has, in the Act, the same meaning as in the Convention, whether or not a particular meaning is expressly assigned to it by the Convention and whether or not the Convention has entered into force in pursuance of paragraph 1 of article 17 of the Convention.

9. Article 2 of the Convention, as set out in the schedule to the IPP Act, is as follows:

"Article 2
1. The intentional commission of:
(a) a murder, kidnapping or other attack upon the person or liberty of
an internationally protected person;
(b) a violent attack upon the official premises, the private
accommodation or the means of transport of an internationally
protected person likely to endanger his person or liberty;
(c) a threat to commit any such attack;
(d) an attempt to commit any such attack; and
(e) an act constituting participation as an accomplice in any such
attack shall be made by each State Party a crime under its internal
law.
2. Each State Party shall make these crimes punishable by appropriate
penalties which take into account their grave nature.
3. Paragraphs 1 and 2 of this article in no way derogate from the
obligations of States Parties under international law to take all
appropriate measures to prevent other attacks on the person, freedom
or dignity of an internationally protected person."

10. Article 1 of the Schedule to the IPP Act defines the term "internationally protected person". It is not necessary to set out the definition here. There is no definition of the term in the body of the IPP Act.

11. It is conceded on behalf of the Director of Public Prosecutions and the Attorney-General that the Convention is a treaty within the meaning of sub-s.75(i) of the Constitution. It is not conceded that the charges laid under the IPP Act are matters arising under that treaty.

12. For some purposes it may be important to distinguish between matters arising directly under a treaty and matters arising indirectly under a treaty. For the purposes of the present case, I do not think that it is of any benefit to draw the distinction. It is possible to embark upon a lengthy discussion on the meaning of the words "arising under", but, again for the purposes of the present case, I do not think that lengthy discussion is necessary.

13. The only direct authority on the precise question is Bluett v. Fadden (1956) 56 SR (N.S.W.) 254. In that case McLelland J said at 261:

"So far as treaties are concerned, the position in the United
States is that treaties are part of the supreme law of the land
binding the judges in every State, whereas in Australia, a treaty does
not of itself have legislative effect and cannot be the subject of
judicial cognizance until it has received legal sanction and has been
carried into operation by appropriate legislative action.
It is the legislation which creates the rights which are justiciable
and I am of opinion that, having regard to this fact, the rights can
only be said to arise under the legislation and cannot be said to
arise under the treaty.
Section 75 must, I think, be taken to refer to cases where the
decision of the case depends upon the interpretation of the treaty.
In such cases, the matter in question arises under the treaty.
It is, of course, primarily the legislation which has to be
interpreted but, where the terms of the treaty have by legislation
been made part of the law of the land, it is in a very real sense the
treaty which is being interpreted. I may add that I find it difficult
to ascertain any subject-matter falling within s.75, if s.75 does not
refer to the type of case I have mentioned."

14. McLelland J reached these conclusions after referring to American decisions which he considered were not completely consistent and after express reference to the judgment of Latham CJ in R v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 152, 153.

15. Ex parte Barrett was considered in Felton v. Mulligan and Another [1971] HCA 39; (1971) 124 CLR 367. It was not considered to be authority for the proposition that a matter arises under a law simply because a determination of the matter involves the interpretation of that law. The following passage from the judgment of Latham CJ in Ex parte Barrett at 154 was approved by Windeyer J in Felton v. Mulligan at 387, and by Walsh J at 408-409:

"The terms of par.(i) show that a matter may arise under the
Constitution without involving its interpretation, and that a case may
involve the interpretation of the Constitution without arising under
the Constitution. Paragraph (ii) is limited to matters arising under
Federal statutes, and does not extend to matters involving the
interpretation of such statutes if they do not arise thereunder. This
variation in language supports the view that, in order to bring a
matter within s.76(ii) - which is the relevant provision in the
present case - the inquiry to be made is not whether the determination
of the matter involves the interpretation of a Federal law. The
relevant inquiry is whether the matter arises under the law. Thus one
is compelled to the conclusion that a matter may properly be said to
arise under a Federal law if the right or duty in question in the
matter owes its existence to Federal law or depends upon Federal law
for its enforcement, whether or not the determination of the
controversy involves the interpretation (or validity) of the law. In
either of these cases, the matter arises under the Federal law. If a
right claimed is conferred by or under a Federal statute, the claim
arises under the statute."

Walsh J said at 408:

"The fact that the interpretation of a law is involved does not
necessarily mean that there is a matter arising under the law. But,
in my opinion, there is a matter arising under the law if the source
of the right claimed by the plaintiff or applicant or the source of a
defence which asserts that the defendant or respondent is immune from
the liability or obligation alleged against him is a law of the
Parliament."

16. Although Felton v. Mulligan was not concerned with the meaning of the phrase "arising under a treaty" within s.75(i), but with the phrase "arising under any laws made by the Parliament" under s.76(ii), the meaning ascribed by the High Court to the words "arising under" is made clear and it is, in my view, contrary to the meaning which was ascribed to those words in Bluett v. Fadden. It is not enough that recourse is to be had to the treaty in order to decide the matter in issue. What is necessary is that the right, duty or liability in question "owes its existence" to the treaty or depends upon the treaty for its enforcement, or has its source in the treaty.

17. If one looks to the source of the liability to be convicted of an offence under s.8 of the IPP Act, that source is, in my view, to be found in the Act itself and not in the treaty. The treaty creates no rights, duties, obligations or liabilities which are justiciable in Australian law. Whilst the terms of the IPP Act itself require that recourse is to be had to the treaty for the purposes of construction and interpretation (and in particular for the meaning of the term "internationally protected person"), that does not mean that a prosecution for an offence under the Act is a matter arising under the treaty.

18. I conclude, contrary to Bluett v. Fadden, that the charges under the IPP Act do not arise under a treaty and therefore fall outside sub-s.75(i).

(ii) Matters affecting Consuls and other representatives of other countries
19. As I understand it, it was assumed or agreed that the persons alleged by the indictment to be internationally protected persons under the IPP Act were representatives of another country, namely the Islamic Republic of Iran. To bring the case within sub-s.75(ii) it is necessary that one or more of the individual representatives of that country named in the indictment be affected by the proceedings.

20. There is direct authority to the contrary in the United States, where it was held long ago that an indictment for offering violence to the person of a public minister of a foreign country is not a case "affecting" the minister: The United States v. Ortega (1826) 11 Wheat 469:

"It is that of a public prosecution, instituted and conducted by
and in the name of the United States, for the purpose of vindicating
the law of nations, and that of the United States, offended, as the
indictment charges, in the person of a public minister, by an assault
committed on him by a private individual. It is a case, then, which
affects the United States and the individual whom they seek to punish;
but one in which the minister himself, although he was the person
injured by the assault, has no concern, either in the event of the
prosecution or in the costs attending it."

21. However, as Quick and Garran point out (Annotated Constitution (1901) at 771), in another early case in the US Supreme Court, Marshall CJ held that a provision similar to s.75(ii) was intended to give jurisdiction "over all cases by which they (the foreign representatives) were in any manner affected", whereas in the case of States it was intended to give jurisdiction in those cases to which the States were actual parties: Osborn v. Bank of US 9 Wheat 854, and see Constitution s.75(iv).

22. Furthermore it is difficult, in my view, to see that, in the contemporary scene, the alleged victim of a crime is not "affected" by the prosecution of the offender, as the conviction may provide the basis for a discretionary order for compensation under s.19B of the Crimes Act 1914 and does provide conclusive evidence of criminal conduct for the purpose of an application for compensation under the Criminal Injuries Compensation Act 1983.

23. I conclude that the prosecution for offences under s.8 of the IPP Act is a matter affecting representatives of another country, and is within sub-s.75(ii) of the Constitution.

(iii) Matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.
24. For the accused it was submitted that the present prosecution was a matter in which either the Commonwealth is a party or the Director of Public Prosecutions, suing on behalf of the Commonwealth, is a party.

25. On the face of it the Commonwealth is not a party. The indictment bears the conventional title "The Queen against Ali Asgha Donyadideh" (and names the ten other accused). The indictment commences as follows:

"The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this
behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES
THAT ...."

26. There is no explicit reference in the indictment to the Commonwealth at all. However, it is the function of the Director of Public Prosecutions to institute prosecutions on indictment for indictable offences against the law of the Commonwealth: Director of Public Prosecutions Act 1983 para.6(1)(a). It is not necessary to discuss such questions as whether an indictment (or information alleging an indictable offence) must be laid in the name of the Queen. The King v. Kidman and Others [1915] HCA 58; (1915) 20 CLR 425 is sufficient authority for the proposition that s.75(iii) of the Constitution gives the High Court original jurisdiction in trials on indictment for offences against the laws of the Commonwealth. At 438 Griffith CJ said:

"It is of the essence of judicial proceedings of a controversial
character that there should be a party who seeks to put the tribunal
in motion and a party against whom action is sought to be taken. The
former is spoken of as the person "at whose suit" the proceeding is
taken, and both are spoken of as parties to the proceeding. Bearing
this elementary proposition in mind, I turn to sec.75(III) of the
Constitution, which enacts that in all matters in which the
Commonwealth or a person suing or being sued on behalf of the
Commonwealth is a party the High Court shall have original
jurisdiction. In my opinion it is a function of the Executive
Government of every sovereign State, and therefore of the Government
of the Commonwealth, to invoke the aid of the judicial power of the
State for any purposes for which it may properly be invoked, which
purposes include the punishment of offences committed against its
laws. The mode of invoking that aid is by a litigious proceeding
which is commonly and properly described in such a context by the word
"matter".
It follows in my opinion (1) that the Commonwealth is entitled to
invoke the aid of the judicial power for such a purpose, (2) that the
proceeding in which it is invoked is a matter to which the
Commonwealth is a party, and (3) that the High Court has jurisdiction
to entertain it."

27. The present prosecution is, in my view, a matter in which the Commonwealth or a person suing on behalf of the Commonwealth is a party, and is therefore within sub-s.75(iii).

Does this Court have jurisdiction in matters falling within s.75 of the Constitution?
28. Counsel for the accused submitted that ss.75, 76 and 77 form a code of principles relating to the identification of courts which may exercise original jurisdiction in the matters enumerated in s.75. Several reasons were advanced. One was that the matters enumerated in ss.75 and 76 are of particular national and international importance. That is undoubtedly true, but they are not of unique or paramount importance. It has been acknowledged that the matters enumerated in s.75 were modelled very closely on a section of the Constitution of the United States: Quick and Garran, p 764. Otherwise those matters do not seem to have any common characteristic or feature which gives them a peculiar importance.

29. It was also submitted that this self-contained scheme or code was intended by the framers of the Constitution to guarantee that the High Court's appellate jurisdiction under s.73 of the Constitution would always be available to be invoked in order to supervise the exercise of original jurisdiction in those important matters enumerated in ss.75 and 76. Conversely, there is no constitutional provision for direct supervision by the High Court of any courts other than the federal courts and State courts exercising federal jurisdiction.

30. The response to this last submission provides a comprehensive answer to the question whether this Court may exercise jurisdiction in a matter falling within those matters enumerated in s.75.

31. Under chapter III of the Constitution the jurisdiction of the High Court, other federal courts and State courts invested with federal jurisdiction, is exercised as the federal judicial power. Territory courts are not federal courts, they do not exercise any part of federal judicial power and they may not be invested with federal jurisdiction: Spratt v. Hermes and Another [1965] HCA 66; (1965) 114 CLR 226.

32. The jurisdiction of Territory courts is like that exercised by State courts before State courts were invested with federal jurisdiction by sub-s.39(2) of the Judiciary Act 1903. The jurisdiction exercised by State courts prior to 1903 included jurisdiction in the matters enumerated in s.75 of the Constitution. Jurisdiction in those matters prior to 1903 was exercised by State courts as part of the judicial power of the State; in 1903 jurisdiction in those matters became exercisable by State courts as part of the judicial power of the Commonwealth. The process was explained in Felton v. Mulligan by Windeyer J at 124 CLR p 394:

"Courts in the Australian colonies were before federation linked
by the authority of the Privy Council. Subject to the Colonial Laws
Validity Act, they administered, as the law of the land in each
colony, statute law of the Imperial Parliament along with the
inherited law and the statutes of their own Parliaments. Upon
federation s.5 of the Constitution Act made all valid laws made by the
Commonwealth Parliament "binding on the courts, judges and people of
every State and of every part of the Commonwealth". This and s.109 of
the Constitution assured the paramountcy of federal law. As Higgins
J noticed in Lorenzo v. Carey (1921) 29 CLR at p 255, the effect
of s.39 of the Judiciary Act was really to withdraw from State courts
a jurisdiction to apply federal laws which they would have had by s.5
of the Constitution Act, and then to restore it sub modo as an
invested federal jurisdiction."

33. Walsh J said at 411:

"Section 39(1) of the Judiciary Act took away the jurisdiction of
the State courts in matters in which this Court had jurisdiction. It
did so by making the jurisdiction of this Court exclusive (except as
provided in the section) of that of the State courts. No provision of
the Act was expressed to take away the jurisdiction of the State
courts in those matters in which this Court did not have original
jurisdiction but in which original jurisdiction might be conferred
upon it. By s.39(2) the courts of the States were invested with
federal jurisdiction in both classes of matter."

34. The earlier case of Lorenzo v. Carey was not followed in Felton v. Mulligan, but certain passages in the earlier case do not appear to be affected by the later decision and assist in clarifying the nature of the "belonging" jurisdiction of State courts which was taken from those courts and replaced by the "invested" federal jurisdiction conferred by sub-s.39(2) of the Judiciary Act 1903. At 29 CLR 251 the majority of the Court said at 251:

"When that section (s.39) was enacted the Courts of the States
could deal with the matters mentioned in secs.75 and 76 of the
Constitution only by virtue of the jurisdiction which "belonged" to
them within the meaning of sec.77(II), because the Federal Parliament
had not at that time "invested" them with any jurisdiction for that
purpose. The intention of the Legislature was to take away the
jurisdiction which belonged to these Courts because it was not always
amenable to the control of the High Court, and to replace it by a new
jurisdiction which could be made subject to such conditions and
restrictions as Parliament wished to impose."

35. Territory courts have not been subject to the process of having their "belonging" jurisdiction stripped from them and replaced by "invested" jurisdiction by s.39 of the Judiciary Act or any other Act. The "belonging" jurisdiction which they continue to exercise includes jurisdiction in the matters enumerated in s.75 of the Constitution, or at least in those matters which are relevant for the present case, namely matters affecting representatives of other countries and matters in which the Commonwealth or a person suing on behalf of the Commonwealth is a party.

36. The IPP Act applies throughout Australia. It "extends to every Territory": s.4 "A Territorial court having the appropriate local jurisdiction may enforce in relation to acts occurring within the Territory in question a law made by the Parliament upon a subject matter falling within s.51 of the Constitution and intended to operate throughout the Commonwealth": Spratt v. Hermes at 239 per Kitto J The jurisdiction of this Court has been invoked by presentation of an indictment charging offences under the IPP Act and by arraignment. The Court has no alternative therefore but to exercise its jurisdiction and proceed to try the case.

37. With respect to the submissions of counsel, I should acknowledge that there were several other matters of law raised and argued but I do not think it necessary to decide or discuss them.

38. The indictment having been presented and the accused having pleaded not guilty, a jury must now be empanelled, and a date will be fixed for that purpose.