The Queen v Garry Kenneth McKay and The Queen v Darren John West [1998] ACTSC 128 (2 December 1998)

Last Updated: 13 October 1999

THE QUEEN v GARRY KENNETH McKAY and THE QUEEN v DARREN JOHN WEST [1998] ACTSC 128 (2 December 1998)

CATCHWORDS

CONSTITUTIONAL LAW - whether s23C of the Crimes Act 1914 (Commonwealth) authorising detention during an investigation period after arrest contravenes an implied guarantee against detention arising from the separation of powers in ch III of the Constitution - if so whether provision nonetheless valid insofar as it applies to the territories - whether s23A of the Crimes Act validly extends the operation of s23C to offences against laws of the Australian Capital Territory.

CRIMINAL LAW - as above.

Crimes Act 1914 (Cth)

Judiciary Act 1903

Chu Kheng Lim v The Minister for Immigration Local Government and Ethnic Affairs and Anor [1992] HCA 64; (1993) 176 CLR 1

Williams v The Queen [1987] HCA 36; (1986) 161 CLR 278

Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 162

Porter v The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432

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

Capital TV and Appliances Pty Limited v Falconer [1971] HCA 10; (1971) 125 CLR 591

THE QUEEN v GARRY KENNETH McKAY

THE QUEEN v DARREN JOHN WEST

No. SCC 71 of 1998

No SCC 72 of 1998

Coram: Crispin J

Supreme Court of the ACT

Date: 2 December 1998

IN THE SUPREME COURT OF THE )

) No. SCC 71, SCC 72 of 1998

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

GARRY KENNETH McKAY

and

DARREN JOHN WEST

REASONS FOR RULING

Judge Making Ruling: Crispin J

Date of Ruling: 2 December 1998

THE COURT RULES THAT:

1. The provision of sections 23A and 23C of the Crimes Act 1914 (Commonwealth) have been validly enacted.

2. Those provisions apply to the detention of the accused following their arrest in relation to the offences for which they now stand charged.

1. In this matter an objection to the admission of certain confessional material was foreshadowed and I agreed to deal with the matter upon the presentation of indictment but otherwise prior to the commencement of the trial.

2. The objections were based upon an argument that the provisions of Part 1C of the Crimes Act 1914 (Cth) authorising the detention of suspects for investigatory purposes were invalid because ch III of the Constitution precluded the enactment of any law authorising the detention of citizens other than in accordance with the exercise of the judicial power of the Commonwealth. It was conceded that there were certain well recognised exceptions to this principle but counsel for the accused contended that none had any relevance to these provisions.

3. Notices under s78B of the Judiciary Act 1903 were duly served upon the Attorneys-General for the Commonwealth, the states and the two self-governing territories. In response to those notices the Attorneys-General for the Commonwealth of Australia and the Australian Capital Territory appeared by counsel to support the validity of the legislation.

4. Section 23C of the Crimes Act 1914 provides that if a person is lawfully arrested for a Commonwealth offence, he or she may be detained during what is described as "the investigation period" for the purpose of investigating whether he or she committed the offence or any other Commonwealth offence. Sub-section (4) provides that the investigation period begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances. That period may not normally extend more than two hours after the arrest if the person is or appears to be a minor, an Aboriginal person or a Torres Strait Islander or four hours after the arrest in any other case. However subs (7) provides that certain times are to be disregarded in the calculation of any such period and s23D provides that a judicial officer may extend the investigation period for a further period not exceeding eight hours.

5. The submission that ch III of the Constitution gives rise to an implied limitation on the Commonwealth's power to pass laws authorising the detention of citizens was supported by reference to the following passage from the majority judgment in Chu Kheng Lim v The Minister for Immigration Local Government and Ethnic Affairs and Anor [1992] HCA 64; (1993) 176 CLR 1 per Brennan, Deane and Dawson JJ at 27:

"There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and "could not be excluded from" the judicial power of the Commonwealth. That being so, Ch. III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s.51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.

In exclusively entrusting to the courts designated by Ch. III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution's concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of judging and punishing criminal guilt."

6. The basis of this general rule is that under the doctrine of the separation of powers enshrined in the Constitution any power to order that a citizen be involuntarily confined in custody is part of the judicial power of the Commonwealth which is entrusted exclusively to courts.

7. Their Honours noted, however, that there are some qualifications which must be made to this general principle. A person may be arrested and detained in custody to ensure that he or she is available to be dealt with by the courts. Such a committal to custody is not seen by the law as punitive or appertaining exclusively to judicial power. Similarly, involuntary detention due to mental illness or infectious disease may be seen as non-punitive in character and not necessarily involving the exercise of judicial power. The traditional powers of the Parliament to punish for contempt and to the power of military tribunals to punish for breach of military discipline also fall outside the judicial power of the Commonwealth referred to in ch III.

8. It was submitted on behalf of the accused that the detention for the purpose of facilitating a police investigation could not be regarded as falling within any of the recognised exceptions and that the constitutional immunity applied. It was therefore beyond the legislative power of the Parliament to invest an official with the power to detain any citizen for such a purpose. It was also submitted that it did not matter whether the period of detention which the statute sought to authorise was four hours, four weeks or four months. The decisive question was whether or not detention could be authorised for the purpose of facilitating a criminal investigation.

9. As the Explanatory Memorandum makes clear, the provisions of Part 1C were enacted in response to the decision in Williams v The Queen [1987] HCA 36; (1986) 161 CLR 278. In that decision the High Court held that a person arrested must be brought before a court of competent jurisdiction as soon as possible and that it was unlawful to detain such a person for investigative purposes. The Court adverted to the power of the legislature to provide such a power (per Mason and Brennan JJ at 296 and Wilson and Dawson JJ at 313) but Williams was a case involving State rather than Commonwealth jurisdiction and no issue arose as to the application of ch III.

10. The Solicitor-General for the Commonwealth, whose submissions were adopted by the Crown and by counsel for the Australian Capital Territory, argued that the principle underlying the statements of Brennan, Deane and Dawson JJ in the passage in Chu Kheng Lim v Minister for Immigration to which I referred earlier was not that the legislation would be invalid if it purported to clothe someone other than a ch III court with authority to order detention, but rather that legislation would be invalid if it purported to oust the jurisdiction of the courts to determine the legality of such detention. In the present case the legislation did not have such effect and could not therefore be impugned. I am unable to accept this submission. In my view, the underlying principle is simply that some functions are essentially judicial in character and fall within the exclusive province of the courts. Those functions include the determination of guilt in relation to allegedly criminal behaviour and the imposition of penalties. The involuntary detention of a citizen is normally penal or punitive in character and the power to order such detention should normally be regarded as an incident of that exclusively judicial function. Consequently, legislation purporting to authorise police officers or other officials to detain citizens would normally be contrary to the constitutional immunity arising by implication from the terms of ch III. The fact that the legislation does not purport to exclude any judicial power to review or otherwise examine decisions to so detain citizens could not validate a purported conferral of power otherwise contrary to the implied immunity arising from ch III.

11. The Solicitor-General also pointed out that the immunity referred to in Chu Kheng Lim v Minister for Immigration related to the involuntary detention of citizens for purposes which were penal or punitive in character and hence incidental to the exclusively judicial function of judging and punishing criminal guilt. As Gummow J observed in Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 162, the question of whether a power to detain is to be characterised as punitive in nature depends upon whether the detention may be reasonably capable of being seen as necessary for a legitimate non-punitive objective. Furthermore, the categories of non-punitive involuntary detention are not closed. In determining whether the detention contemplated in s23C of the Crimes Act 1914 is reasonably capable of being seen as necessary for a legitimate non-punitive objective it is necessary to consider the substance and not the mere form of the authority which that section purports to grant.

12. Counsel for the accused submitted that s23B of the Crimes Act purports to authorise the arrest of people for purely investigative purposes and that a power to detain citizens for such purposes is not reasonably capable of being seen as necessary for a legitimate non-punitive objective. Section 23B(2) is in the following terms:

"Subject to sub-sections (3) and (4), a reference in this Part to a person who is arrested includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:

(a) the official believes that there is sufficient evidence to establish that the person has committed a Commonwealth offence that is to be the subject of the questioning; or

(b) the official would not allow the person to leave if the person wished to do so; or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so;

but a person is not treated as being arrested only because of this sub-section if:

(d) the official is performing functions in relation to persons or goods entering Australia and the official does not believe that the person has committed a Commonwealth offence; or

(e) the official is exercising a power under a law of the Commonwealth to:

(i) detain and search the person; or

(ii) to require the person to provide information or to answer questions."

13. I do not accept that any expansion of the concept of arrest as a consequence of this section authorises arrest for the purposes of investigation. In my view the section is intended to do no more than make it clear that a person who is being interrogated by an investigating official should be regarded as being under arrest once any of the conditions referred to in paragraphs (a), (b) or (c) are fulfilled. It should be noted that s23R, which commences with the optimistic words "(t)o avoid doubt", declares, inter alia, that Part 1C does not confer any power to arrest a person. This provision confirms my view that s23B(2) was not intended to provide any new power of arrest. In any event, the construction suggested would involve not only a significant expansion of the traditional powers of arrest but a substantial incursion into the civil liberties of Australians. Such a construction should be adopted only if required by clear and unambiguous language.

14. On the other hand, the fact that the power of detention applies only to persons lawfully arrested in relation to criminal offences may be seen as tending to support an inference that the power of detention is penal in nature. In this context the length and circumstances of the detention contemplated are in my view significant. If the section had permitted detention for lengthy periods that may have suggested that the power conferred was penal in substance if not in form. For this reason I am unable to agree with the submission made on behalf of the accused that it does not matter whether the period of detention is for four hours, four weeks or four months. In fact, of course, the periods of detention authorised are quite short. Furthermore, the section authorises any such detention only for the purpose of facilitating further investigation in circumstances where an alleged offender has already been arrested and there is presumably sufficient evidence of his or her guilt to warrant that arrest.

15. Having examined the relevant provisions of the Crimes Act 1914 and considered the competing submissions, I have ultimately concluded that the detention authorised by Part 1C is reasonably capable of being seen as necessary for a legitimate non-punitive objective and is not contrary to the separation of powers reflected in ch III of the Constitution.

16. In deference to the submissions that have been made I should also mention the Solicitor-General's argument that even if s23C had involved an impermissible departure from the separation of powers envisaged in ch III it would nonetheless have been valid insofar as it applied to the territories because the scope of s122 of the Constitution is not confined by the restrictions contained in ch III. I accept that on the present state of the authorities the separation of powers required by ch III of the Constitution does not constrain the exercise of the legislative power of the Commonwealth in relation to the territories. See generally Porter v The King; Ex parte Yee (1926) [1926] HCA 9; 37 CLR 432; Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226; Capital TV and Appliances Pty Limited v Falconer [1971] HCA 10; (1971) 125 CLR 591; Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1.

17. Accordingly, as the Solicitor-General submitted, there is no legal impediment to the enactment of legislation conferring upon some person or body other than a court the power to order involuntary detention of citizens within a territory. Chapter III is not a bill of rights. Any implied immunity from detention arises as an incident of the separation of powers thereby guaranteed and the existing authorities establish that this does not limit the legislative power of the Commonwealth in relation to the territories. As Gummow J pointed out in Kruger v The Commonwealth, at 168 et seq, there may be much to be said for the proposition that territorial courts should be regarded as subject to the provision of ch III. However, I am presently bound by decisions of the High Court to the contrary: Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226; Capital TV & Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591 and Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1.

18. Nonetheless, it is by no means clear that Part 1C of the Crimes Act was enacted in reliance upon s122 of the Constitution. On the contrary, s23A(6) provides that in certain circumstances Part 1C applies to territory offences "as if" references to Commonwealth offences included references to that effect and references to laws of the Commonwealth included references to laws of the relevant territory. The extended application which this subsection is intended to achieve does not, in my view, justify the conclusion that the powers of detention conferred by s23C may be sustained by reference to s122 of the Constitution. Of course, even in the absence of s23A(6), those powers would apply to persons arrested in territories for Commonwealth offences but that does not mean that the section may be regarded as a law made for the government of a territory. Accordingly, had I concluded that the section infringed the limitations derived from ch III of the Constitution I would have been unable to accept that it was nonetheless valid insofar as it applied in the territories.

19. On the other hand, having found that the provisions of s23C do not offend ch III of the Constitution, I am satisfied that the extension of those provisions to territory offences by virtue of subs 23A(6) is also valid.

I certify that this and the eight (8) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 2 December 1998

Counsel for the Crown: Mr G Tilse

Instructing solicitors: ACT Director of Public Prosecutions

Counsel for first accused: Mr G C Corr with Mr G J Williams

Instructing solicitors: G J Piscioneri & Co

Counsel for second accused: Mr C Everson

Instructing solicitors: McGuinness Eley

Counsel for Attorney-General for the Mr D Bennett QC, Solicitor-General with

Commonwealth: Mr C Erskine

Instructing solicitors: Australian Government Solicitor

Counsel for Attorney-General for the ACT: Dr D Jarvis

Instructing solicitors: ACT Government Solicitor

Date of hearing: 21 September 1998

Date of judgment: 2 December 1998