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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Immigration and Aliens - conviction for supplying Indian hemp - deportation order - role of the Administrative Appeals Tribunal - whether the Tribunal's decision had the effect of going behind the conviction or setting it at nought - error of law on this ground - Migration Act 1958, s.12 and s.66E; Administrative Appeals Tribunal Act s.44, Part XXII of Schedule, Clauses 22(3) and (4); Poisons Act 1966 (N.S.W.) s.21 and s.45A; Crimes Act 1900 (N.S.W.) s.351.Constitutional Law - judicial power - deportation order - Administrative Appeals Tribunal conferred with power to remit matter to Minister for reconsideration in accordance with Tribunal's recommendation - appeal to Court on question of law - whether Court conferred with part of judicial power of Commonwealth - Administrative Appeals Tribunal Act ss. 25, 26, 43 and 44, Part XXII of Schedule Clauses 22(3) and (4); Migration Act ss.12 and 66E.
Crown - Administrative Appeals Tribunal - Immigration - Ministerial deportation order reviewed by Tribunal - Matter remitted to Minister for reconsideration - Appeal by Minister to Federal Court - Whether Tribunal version of facts accorded with conclusions of jury - Whether Federal Court had jurisdiction - Whether Federal Court was exercising judicial power under Ch. III of Constitution - Whether Tribunal made error of law - Migration Act 1958 (Cth), ss. 12, 13, 66E - Administrative Appeals Tribunal Act 1975 (Cth), ss. 25, 26, 43, 44, Schedule Pt XXII, cl. 22(3), (4), (5) - Federal Court of Australia Act 1976 (Cth), ss. 19, 24 - Poisons Act, 1966 (N.S.W.), ss. 4, 21(1)(a), 45A - Crimes Act, 1900 (N.S.W.), ss. 351, 405, 407. Constitutional Law - Tribunal recommendation that deportation order be worked - Appeal - Whether Federal Court exercising judicial power under Ch. III of Constitution - Whether "matter" under s. 76 of Constitution arose - Judiciary Act 1903 (Cth), s. 78B - The Constitution (63 & 64 Vict. c. 12), ss. 76, 77, Ch. III - Federal Court of Australia Act 1976 (Cth), ss. 19, 24. The respondent was an alien who had been convicted of an offence under the Poisons Act, 1966 for which he had been sentenced to imprisonment for a term of one year. The Minister for Immigration and Ethnic Affairs made an order for his deportation pursuant to the provisions of s. 12 of the Migration Act 1958.
The Administrative Appeals Tribunal reviewed the Minister's decision and recommended to the Minister that the deportation order be revoked. The matter was remitted to the Minister for reconsideration, whereupon the Minister appealed on a question of law to the Federal Court of Australia pursuant to the provisions of s. 44 of the Administrative Appeals Tribunal Act 1975.
The question of law was whether the Tribunal had adopted a version of the facts concerning the respondent's offence which was necessarily contrary to the conclusion which was reached by the jury in convicting the respondent.
The hearing of the Minister's appeal originally concluded on 18th June, 1981, and on 29th July, 1981, the High Court of Australia commenced to hear an appeal by the Minister from a decision of the Federal Court, namely Minister for Immigration and Ethnic Affairs v. Pochi [1981] HCA 58; (1981) 55 ALJR 706. In Pochi's case, the High Court withdrew its previous grant to the Minister of special leave to appeal on the grounds that any decision would not be conclusive of the dispute between the parties. Counsel for the respondent raised the constitutional question of whether the Federal Court had jurisdiction to consider the instant case and submitted that the power given by the Administrative Appeals Tribunal Act 1975 to the Federal Court to hear an appeal on a question of law did not involve an exercise of the judicial power of the Commonwealth within Ch III of the Constitution.
Held: (1) There was a "matter" arising under a law made by the Parliament within s. 76 of the Constitution and the Federal Court was exercising the judicial power of the Commonwealth under Ch. III of the Constitution.
Minister for Immigration and Ethnic Affairs v. Pochi [1981] HCA 58; (1981) 55 ALJR 706, referred to.
(2) The Tribunal departed from the view of the facts necessarily adopted by the jury in reaching its verdict at the trial of the respondent, although the Tribunal accepted the respondent's conviction.
Per Sheppard J. - The Tribunal's conclusion, albeit that the respondent was rightly convicted, had the effect of going behind the conviction and setting it at nought.
(3) The Tribunal made an error in law by not accepting the view necessarily adopted by the jury in reaching its verdict of guilty.
Minister for Immigration and Ethnic Affairs v. Daniele (1981) 61 FLR 354; Hunter v. Chief Constable of West Midlands (1981) 3 WLR 906, approved.
(4) Accordingly the appeal would be allowed.
(5) The decision of the Administrative Appeals Tribunal would be set aside.
(6) The matter would be remitted to the Tribunal to be heard and decided again.
HEARING
Sydney, 1981, June 16-18; December 22; 1982, June 9.The Minister for Immigration and Ethnic Affairs appealed to the Federal Court of Australia from a decision of the Administrative Appeals Tribunal (constituted by Smithers J. as Deputy President) remitting for reconsideration by the Minister an order made by him for the deportation of the respondent.
The facts appear in the judgment.
P. Roberts, for the appellant.
J.S. Coombs Q.C. and T.J. Clarke, for the respondent.
Cur. adv. vult.Solicitor for the appellant: B.J. O'Donovan, Commonwealth Crown Solicitor.
Solicitors for the respondent: Ivan S. Judd & Associates.
J.D. WHITEHEAD
ORDER
1. The appeal be allowed.2. The decision of the Administrative Appeals Tribunal be set aside and the matter remitted to the Tribunal to be heard and decided again.
3. Leave be reserved to the parties to apply within 14 days in relation to costs. Appeal allowed.
Orders accordingly
DECISION
This is an appeal by the Minister for Immigration and Ethnic Affairs from a decision of the Administrative Appeals Tribunal (constituted by Smithers J, as Deputy President) remitting for reconsideration by the Minister an order made by him for the deportation of the respondent, Nizam Gungor. The deportation order was made pursuant to s.12 of the Migration Act, 1958, on the footing that the respondent was an alien who had been convicted of an offence for which he was sentenced to imprisonment for one year or longer (in fact one year in his case).Two principal questions have been raised. One constitutes the basis of the appeal and concerns the extent to which the Tribunal was entitled to form conclusions of fact on material placed before it which ran counter to what it was submitted must be taken as conclusions reached by the jury on the trial of the respondent. The other question arose after we had heard argument on the appeal, and while we were considering our decision. It arose out of the withdrawal by the High Court of special leave to appeal granted by it to the Minister in the case Minister for Immigration and Ethnic Affairs v Pochi [1981] HCA 58; (1981) 36 ALR 561. The constitutional question was then raised and argued by counsel for the respondent whether this Court had jurisdiction to consider the case at all. Notices were given under s.78B of the Judiciary Act, 1903 to the Attorney-General of the Commonwealth and the Attorney-General of New South Wales. Both appeared, and argument was presented on behalf of the former.
I shall deal first with this constitutional question. It was submitted on behalf of the respondent that the power which the Administrative Appeals Tribunal Act, 1975 gave to the Court to hear an appeal on a question of law did not involve an exercise of the judicial power of the Commonwealth within Chapter III of the Constitution. The basis of the submission was that in a case where the Tribunal refers a matter to the Minister for reconsideration, the Minister is not bound by a conclusion reached by the Tribunal and can notwithstanding the Tribunal's recommendation maintain the order for deportation. Moreover, his decision, after the referral back, was and is expressly made free from any further appeal to the Tribunal (cl. 22(5) of the Schedule, now repealed, to the Administrative Appeals Act; s.66E(1) of the Migration Act, 1958 replaces this clause). The High Court, in Pochi's case, referred to this aspect, as follows (564):
"The effect of a decision of the Tribunal remitting a matter for reconsideration in accordance with its recommendations is only that the Minister is bound to reconsider the matter in the light of the recommendations. There are obvious reasons why the Parliament may have considered that the Tribunal, in making a review of decisions under the Migration Act, should have less extensive powers than are granted in the case of other administrative decisions."
Even an affirmation of his decision is not made binding on the Minister; he is free to change his mind and revoke an order already made (cf. s.43(6) of the Act). The function of the Tribunal is to review a decision, to affirm or remit, and, in the latter case, to make a recommendation or recommendations if and as it sees fit.
The High Court in Pochi's case did not hold that it was not competent for it to grant special leave to appeal or to hear an appeal, but it exercised a discretion not to, or, to be more precise, to withdraw the special leave already given. Although their Honours mentioned the Federal Court, no suggestion was made that it may be without jurisdiction.
I do not understand it to be disputed that disposition of the present appeal involves an exercise of judicial power. In any event, for reasons which appear in the course of the discussion which follows, I am of the view that the function is judicial. The question is whether it was competent for the Parliament to vest jurisdiction in the Federal Court to decide the appeal. The particular feature relied upon is the inconclusive nature of the Tribunal's decision, at least in a case where it remits a case for reconsideration. The issue of law raised is whether what is involved is a "matter" arising under a law made by the Parliament within s.76 of the Constitution, such that power to deal with it can be vested in the Federal Court under s.77. There is no doubt that the relevant law is Commonwealth law, and its validity is not challenged, except in the present respect. In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, the High Court held that an advisory opinion "at large" was not such a matter. It is not necessary to cite the well known passages in the joint judgment in that case, which dealt with whether there was power to give the High Court a function of giving purely advisory opinions. As has been pointed out on a number of occasions, the effect of the decision has been somewhat modified by the width of the power since exercised to make declaratory orders.
It is I believe an error to treat the powers of the Minister upon receipt of the Tribunal's decision as determinative of the function of the Court under the legislation here in question. In R v Macfarlane; ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518, in which the powers of a Migration Board which advised the Minister were in question, the decision was that the Board was not a judicial tribunal, or acting judicially, and prerogative writs should not issue against it. The decision does not assist in the present case. Here, it is sufficient to know that a review by the Tribunal is a statutory procedure and that it requires the decision of the Tribunal on a dispute between the parties, the resolution of which is of importance to both. The function of this Court, sitting as a Full Court, but in its original jurisdiction, is to decide questions of law, and questions of law only.
In the present "appeal", (to use the term of the Act) the principal question of law raised involves a close consideration of the facts, and what is sought is a reference back to the Tribunal (see s.44(4) of the Administrative Appeals Act). In other cases the question of law which is posed will be directly definitive of the rights of the individual, or the powers of the Minister. There are real parties, and there is a real and existing dispute. The order of the Court is final, subject only to appeal, and has legal consequences. These consequences extend at least as far as the proceedings before the Tribunal, but may also finally determine a question, such as one whether a person ordered to be deported is liable to deportation.
I am of the opinion that there is a "matter" and that the Court is exercising the judicial power of the Commonwealth under Part III of the Constitution.
The next question relates to the subject of the appeal. Sheppard J has stated the facts in detail, and I shall not attempt to traverse the same ground. I respectfully agree with the conclusion he expresses in the following terms:
"In my opinion the analysis of the evidence before the Tribunal and its findings thereon which I have undertaken makes it abundantly clear that the Tribunal did, at the invitation of the respondent and quite consciously, depart from the view of the facts necessarily adopted by the jury in reaching its verdict."
At the same time, it is to be noted that the Tribunal accepted the conviction, and the guilt of the respondent. The Tribunal simply put the conviction on a different factual footing, different indeed from the way the trial judge found the facts for the purpose of sentencing.
In point of broad policy it can be suggested that one or other of two opposed approaches can be adopted. One is that, there having been a criminal trial in which the respondent was found guilty and sentenced, and that conviction still standing, and being the basis of the power to deport, it should not be open to the Tribunal to reconsider for itself the facts upon which the conviction was based (or question the soundness of the trial procedure), and thus, in effect, contravert the conviction. The other is that an order of deportation is or can be seriously prejudicial to the person concerned (and his family), and a Tribunal charged with considering whether or not to support it should be free to consider the conduct of that person, including conduct referable to the charge made against him, and should be free also to see that the conviction can be supported. Advocates of each approach would probably concede some validity in the other.
The conviction, including the sentence of a year or more, is of course a necessary basis for the Minister's order. If it can be shown that there is absent any of the necessary ingredients (more fully and precisely stated in s.12), any order made by the Minister or affirmation thereof by the Tribunal will be quashed or set aside. What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one functioning in a number of respects like a court, and comprising a judge) should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. If new or fresh evidence comes to hand, the criminal procedures can be availed of. There can in rare cases be an application for a pardon, perhaps preceded by a special judicial inquiry. While it stands, the conviction must be conclusive so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister's decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed. This is my understanding of the statutory intention. Quite obviously, serious practical questions arise if the position is otherwise. The Tribunal could presumably arrive at its own decision as to whether the person concerned did what he was charged with doing, and for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial, when some witnesses for the prosecution were unavailable and memories were in any event dimmed. Accepted trial procedures would be absent. The Crown, as repository of the function of criminal prosecutions, would not be a party. The Tribunal might in the end find itself substituting its own view for that of the jury.
The matter may be tested in another way and from a different direction by asking what the position would be if a prosecution witness obviously important to the conviction were to tell the Tribunal on oath that he had in his evidence at the trial committed perjury on vital matters. I do not see why the Tribunal should not receive his later account as part of the material before it, and I would not suggest that its proceedings could or should be arrested by a curial order simply because it did so, or threatened to do so. If the view I have expressed is correct, it would then be confronted by a conclusive finding of guilt, and evidence strongly suggestive that the conviction could not stand or would, in the fact of the later evidence and its reflection on the credibility of the witness, be quashed as unsatisfactory. These matters are however for the criminal law and its procedures. The review might of course take place many years after the conviction, but the convicted person would have the same rights and remedies as an Australian citizen not liable to deportation. In the circumstances suggested, the Tribunal would not, despite the later evidence, be obliged (if the facts otherwise warranted it) to affirm the decision. In accordance with the terms of cl.22(3) of the Schedule to the Administrative Appeals Act (now s.66E(3) of the Migration Act) the matter could be remitted for re-consideration by the Minister with or without a recommendation arising from or related to the evidence of the self-confessed perjurer. There could be a recommendation that the order for deportation be revoked until the position was clarified, on the basis that, if appropriate, the Minister could issue another. There is considerable flexibility. What would be wrong, in my view, would be to recommend revocation influenced by a conclusion that the person concerned should not have been convicted.
My view as to the construction of the legislation finds support in dicta of members of the House of Lords in General Medical Council v Spackman (1943) AC 627, and of Singleton J in the Divisional Court in the same case (R v General Medical Council (1942) 2 KB 261, 271). In that case, the question was whether the General Medical Council had made "due inquiry" as to professional misconduct of a medical practitioner as required by s.29 of the Medical Act, 1858. An alternative limb under the same section related to a doctor having been convicted of a felony or misdemeanour. I believe it to have been on the construction of s.29 that Viscount Simon L.C. based his observation (634-5) that, on the second ground just mentioned, "the decision of the council is properly based on the fact of conviction, and the practitioner cannot go behind it and endeavour to show that he was innocent of the charge and should have been acquitted". Lord MacMillan and Lord Romer agreed with the Lord Chancellor's opinion. Lord Wright said of the same limb (639):
"The condition is defined precisely and nothing more than the conviction is required to found the discretion, though how the discretion is to be exercised is left to the council."
The judgment of Singleton J in the Divisional Court was concurred in by members of the Court of Appeal, whose decision was upheld unanimously in the House of Lords, and also specifically by Lord Wright in that House. Singleton J said (271):
"The answer to the problem with which we are confronted can be expressed in a few words. The legislature has made proof of a conviction conclusive. It has not done so in the case of a decree or order of a judge sitting in divorce."
Their lordships obviously regarded the conviction as intended to be proof of guilt, and that seems to me to be the position under the Migration Act.
The application of Spackman's case in relation to proceedings under the Administrative Appeals Tribunal Act has been considered by Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, 38-9 and by Davies J in Re Habchi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 623. They arrived at different conclusions. With respect, I prefer the reasoning and conclusion of Brennan J.
It was inevitable in the present context that we should be referred to Hollington v Hewthorn and Co. Ltd. (1943) KB 587, which has long been accepted as authority for the proposition that a finding of guilt is not evidence in a civil proceeding involving the same factual issue. What principle of law was invoked to reach this result has been the subject of much debate. All I need say about the case is that it had relation to the rules of evidence in a civil proceeding before a court, and that recently, in Hunter v Chief Constable of West Midlands (1981) 3 All ER 727, the House of Lords was agreed (734) that "it is generally considered to have been wrongly decided . . . "
Hunter's case provides further guidance. It was held that convictions for murder could not be challenged in subsequent civil proceedings in which the persons convicted sued for assault police officers involved in their arrest and questioning. The question whether there had been the assaults alleged had been the subject of investigation by the trial judge on the voir dire, as related to the admissibility of confessions, and had also been a critical question for the jury to decide. The trial judge and the jury had found against the accused, now the plaintiffs. It was held that it was an abuse of the process of the court to entertain the action, which was struck out. At 733 Lord Diplock, in whose speech the other Law Lords concurred, said:
"The abuse of process which the instant case exemplifies is the initiation of
proceedings in a court of justice for the purpose of
mounting a collateral
attack on a final decision against the intending plaintiff which has been made
by another court of competent
jurisdiction in previous proceedings in which
the intending plaintiff had a full opportunity of contesting the decision in
the court
by which it was made.
The proper method of attacking the decision by Bridge J in the murder trial that Hunter was not assaulted by the police before his oral confession was obtained would have been to make the contention that the judge's ruling that the confession was admissible had been erroneous a ground of his appeal against his conviction to the Criminal Division of the Court of Appeal. This Hunter did not do. Had he or any of his fellow murderers done so, application could have been made on that appeal to tender to the court as 'fresh evidence' all material on which Hunter would now seek to rely in his civil action against the police for damages for assault, if it were allowed to continue."
Although the decision is not of direct application, it does suggest that if a conviction cannot be attacked collaterally in another court (in fact one of coordinate jurisdiction) it is unlikely to be open to challenge in an administrative inquiry such as that here in question. More, one gets from the decision a concept of collateral attack, as related not simply to the ultimate result of the trial, but of facts determined in the course of it, and of facts the jury must have accepted.
After the present appeal had been argued, two relevant deportation cases were decided by the Full Court of this Court: - Minister for Immigration and Ethnic Affairs v Daniele (17 December 1981) and Halil Degerli v Minister for Immigration and Ethnic Affairs (23 December 1981). Counsel were referred to these cases when argument on the constitutional matter took place, and invited to make submissions with regard thereto. Counsel for the applicant has sought to distinguish the cases, and to treat relevant passages as dicta only. I believe both cases support the conclusion I have expressed. I am respectfully in agreement with leading statements therein. For example, I respectfully agree with the following passages in the joint judgment of Fisher and Lockhart JJ in Daniele:
"The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that enquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial Judge and jury must determine.". . .
and of Keely, Fisher and Davies JJ in Degerli:
"The fact of the conviction stands conclusively as the source of the jurisdiction of the Minister to make a deportation order and as affecting the standing or credit in the community of the applicant as a convicted person. Moreover, the correctness of the conviction and the fairness of the trial procedures which resulted in the verdict of the jury are not the concern of the Tribunal. They are the concern of the Criminal Appeal Courts and of the prerogative of the Crown."
The present case goes further, or, at least, is somewhat different. As Hunter's case indicates, if there cannot be a direct challenge to a conviction, there cannot be an attack on the findings which support it. If a Deputy President of the Tribunal finds and recommends on facts inconsistent with facts upon which a jury must have based its verdict there is in my view a challenge to the conviction. On occasion the border line of proper inquiry or of legitimate consideration may be difficult to determine. If the problem arises in practice, it will have to be met. However, the case is probably a rare one where the line between what can be taken into account and what cannot becomes too refined without there having been a sustained attack on the conviction, or a determined presentation of evidence running counter to it. In either case the Tribunal is put on notice, and can control proceedings in such a way as seems appropriate to it.
It is in my view an error of law for the Tribunal to proceed to its conclusion on the basis of facts in-consistent with the conviction and that, as it seems to me, is what has happened in the present case. I believe it would be wrong for the present matter to be remitted to the Minister with the recommendation made by the Tribunal that the deportation order be revoked. It would also be wrong for us to interfere with the decision to the extent only of removing that recommendation.
What does concern me is the prolonged history of the matter. The offence was committed in 1977, the deportation order was made in May 1979, and the application for review was made in June 1979. The appeal to this Court was filed in June 1980. The long delays are regrettable. The respondent has been out of custody for over 3 years. If the matter is to proceed, further delay should be minimised.
The appeal should be allowed, and the decision of Smithers J set aside. Unfortunately, it is necessary to remit the matter to the Tribunal for hearing and decision.
I have had the advantage of reading the separate reasons for judgment of Fox and Sheppard J.J. I agree with the conclusion of each of them that this appeal should be allowed and the matter remitted to the Tribunal for hearing and decision. I also agree generally with their reasons.
This is an appeal by the Minister against a decision of the Administrative Appeals Tribunal given on 30 May, 1980. The appeal is brought pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act 1975, which provides for an appeal from the Tribunal upon questions of law.
By its decision the Tribunal reviewed the decision of the Minister dated 19 May, 1979, and recommended to the Minister that an order for deportation of the respondent made that day be revoked. The matter was remitted to the Minister for reconsideration in accordance with the Tribunal's recommendation. The Tribunal's orders were made pursuant to Part XXII of the Schedule to the Act - see particularly clause 22 (3) and (4). These have since been replaced by s.66E of the Migration Act 1958 (inserted by Act No.61 of 1981, s.60).
The Minister's decision had been made pursuant to s.12 of that Act. The section provides, inter alia, that where an alien has been convicted in Australia of an offence for which he has been sentenced to imprisonment for one year or longer, the Minister may, upon the expiration of or during any term of imprisonment served or being served by the alien in respect of the crime, order his deportation. There was no issue that the respondent was an alien for the purposes of the Act.
On 30 May, 1978, the respondent was convicted of an offence under the Poisons Act 1966 (N.S.W.) of supplying Indian hemp. On 1 June, 1978, the respondent was sentenced by his Honour Judge Robson of the New South Wales District Court to be imprisoned with hard labour for a period of 12 months. A non-parole period of six months was specified.
The offence in respect of which the respondent was convicted was committed on 12 May, 1977. The provision of the Poisons Act which was in question was s.21(1)(a). It provides that any person who, inter alia, supplies Indian hemp is guilty of an offence. Section 45A(1)(a) and (2) operate together to enable a prosecution for the offence of supplying Indian hemp to be by way of indictment. If a person is convicted upon indictment of such an offence he is liable to a fine not exceeding $200,000 or to imprisonment for a term not exceeding 10 years or to both such fine and imprisonment - see s.45A(3)(b). Section 4 of the Poisons Act defines the term "supply" as follows:
"'Supply' includes sell, or agreeing to supply, or offering to supply, or keeping or having in possession for supply or sending, forwarding delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of such acts or things."
The general circumstances under which the offence was committed are described in the Tribunal's decision and in remarks made by Judge Robson when passing sentence. They also appear from depositions taken at the committal proceedings, the respondent's statement at his trial and evidence given by the respondent before the Tribunal.
The Minister relied upon a number of grounds of appeal but many of these were withdrawn at the commencement of the hearing with the result that the appeal eventually involved only two questions. One of them was whether the Tribunal's findings of fact were against the evidence and the weight of the evidence. That is not a matter with which this Court can be concerned because it is not a question of law; see Clark v. Flanagan [1934] HCA 73; (1934) 52 C.L.R. 416 at p.428 and Neil v. Department of Transport (1980) 29 A.L.R. 350 at p.364.
The remaining question was formulated upon the assumption that the Tribunal
had adopted a version of the facts concerning the offence
which was
necessarily contrary to the version which, so it was submitted, must have been
accepted by the jury in convicting the respondent.
It was the Minister's
submission that it was not open to the Tribunal to take that course; it was
said to have been contrary to law
to have done so. In the respondent's
submission it was lawful for the Tribunal to take that course if it thought it
appropriate to
do so. But the respondent also submitted that the Tribunal had
not in fact departed from any version of the facts which must necessarily
have
been found by the jury. In his counsel's submission the question of law
propounded by the Minister did not therefore arise for
determination.
JUDICIAL POWER
Before proceeding to deal with the questions raised by these submissions, it should be mentioned that the hearing of this appeal originally concluded on 18 June, 1981. On 29 July, 1981, the High Court commenced the hearing of the appeal by the Minister against the decision of this Court in Minister for Immigration and Ethnic Affairs v. Pochi [1980] FCA 85; (1980) 31 A.L.R. 666. Special leave to appeal had previously been granted to the Minister on 10 October, 1980. After argument the High Court decided that it would rescind the grant of special leave. The Chief Justice said that the Court's reasons for taking that course would be published at a later time. A perusal of the transcript of the argument discloses that the broad reason why leave was refused was that the decision of the High Court, if the appeal were determined, might not be decisive of the outcome of the dispute. The power of the Tribunal, if it allowed an appeal, was to make a recommendation which the Minister was free to reject. The decision of the High Court on an appeal from the Federal Court, which had dismissed the Minister's appeal from the Tribunal, would, if it too were against the Minister, have force and effect only as a recommendation. However, in the course of the argument before the High Court a question was raised as to whether, because of this circumstance, the jurisdiction invested in the Federal Court of reviewing the Tribunal's decision to recommend against deportation was an exercise of judicial power. This led us to ask counsel in the present case whether it was desired to submit that this Court had no power to deal with such an appeal because no exercise of judicial power was involved. In the result counsel for the respondent said that it was desired to rely upon such an argument. Accordingly, the matter was relisted for further hearing on 22 December last. In the meantime the High Court delivered reasons for its decision to rescind special leave; Minister for Immigration and Ethnic Affairs v. Pochi [1981] HCA 58; (1981) 36 A.L.R. 561.
The judgment then published disclosed that the reasons for the withdrawal of leave were based upon discretionary grounds and not at all upon a view that no exercise of judicial power was involved. The joint judgment of Gibbs C.J. and Mason, Aickin and Wilson JJ. includes the following sentence (p.564):
"However, there were a number of reasons why this Court, which, unlike the Federal Court, is not bound to hear an appeal from the Tribunal, should not entertain an appeal in the present case".
A number of matters are then stated. It is not material to refer to the detail of these.
Although the matter had not been the subject of argument in the High Court, it was thus the tentative view of the judges to whom I have referred that this Court was validly invested with judicial power and was thus able to deal with an appeal such as this.
Nevertheless the submission that it was not validly empowered to do so was pressed. Notices pursuant to s.78B of the Judiciary Act 1903 were served upon the Attorneys-General for the Commonwealth and the State of New South Wales. The latter did not seek to intervene. The former did so by counsel who were retained by the Minister.
I have reached the conclusion that the respondent's submission should be rejected. I do so for the following reasons.
The essential feature of the contention put on behalf of the respondent was that the powers of this Court on appeal under s.44 of the Administrative Appeals Tribunal Act ("the A.A.T. Act") required or empowered it to go well beyond the exercise of judicial power. As s.44 can at first glance be said to raise some difficulty, it may be helpful to consider this contention at the outset and prior to reviewing the nature of the power exercised by this Court under the A.A.T. Act.
To this end it is appropriate to note certain matters that are self-evident, the first being that the jurisdiction of the Court is limited to appeals on questions of law arising in the Tribunal's decision and to the determining of such questions of law. Such jurisdiction contrasts sharply with the jurisdiction of the Supreme Courts under s.196(1) of the Income Tax Assessment Act 1936 where, provided the decision of the Board of Review involves a question of law, the Supreme Court "may make such order as it thinks fit, and may by such order confirm, reduce, increase or vary the assessment". It is also axiomatic that, although styled "an appeal" in the A.A.T. Act, this Court is acting in its original jurisdiction under s.19 of the Federal Court of Australia Act 1976 and not pursuant to its appellate jurisdiction conferred by s.24 of that Act. Such is the case notwithstanding the fact that this Court is, by virtue of s.44(3) of the A.A.T. Act, of necessity constituted in this matter as a Full Court because only a presidential member of the Tribunal can exercise its jurisdiction in matters of deportation.
The contention of counsel for the respondent can be fairly summarised as follows. This Court is not on this appeal exercising the judicial power of the Commonwealth. It is acting administratively or is giving merely an advisory opinion in circumstances where under the A.A.T. Act it is given wide powers to make such order as it sees fit which order is inconclusive and does not resolve the rights of the parties because the Tribunal can at most only recommend. For my part I cannot accept that any of the three circumstances correctly states the position in law.
Dealing with the powers of this Court on this appeal, it is not correct to see our powers as unlimited. The powers as stated are subject to restrictions, which restrictions are readily apparent if compared with the powers on review of the Tribunal, admittedly acting administratively, and the powers of this Court in other jurisdictions, both original and appellate. The relevant portions of s.44 of the A.A.T. Act are as follows:
"(1) A party to a proceeding before the Tribunal may appeal to the Federal
Court of Australia, on a question of law, from any decision
of the Tribunal in
that proceeding.
(2) . . .
(2A) . . .
(3) . . .
(4) The Federal Court of Australia shall hear and determine the appeal and
make such order as it thinks appropriate by reason of its
decision.
(5) Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence by the Tribunal in accordance with the directions of the Court."
The emphasis is mine.
It is in my opinion not correct to say that this Court is by these provisions given wide powers to make such order as it thinks fit. Implicit in its powers are a number of restrictions. The appeal is expressly limited to error of law, which alleged error is the sole matter before this Court and is the only subject matter of any order made consequent on the appeal. The order which this Court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this Court's view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this Court under this section. A power to make "such order as it thinks appropriate by reason of its decision" is much more restrictive than a power "to make such order as it sees fit" or a power "to make a decision in substitution for the decision" the subject of the appeal. Section 44(5) confirms, though it states that it does not purport to limit, this as an appropriate reading of the power in s.44(4) when it limits its statement of the express power of the Court when setting aside a decision to the making of an order remitting the case to be heard again. Having set aside a decision, it has no express power to substitute what it sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings.
The powers of this Court on appeal under s.44 of the A.A.T. Act are limited to consideration of alleged errors of law by the Tribunal and go no further. There is certainly no power to supervise the Tribunal in any other way and in particular to deal with the merits of the review. The error of law alleged has to be isolated out, a decision made on this question of law, and such order made and directions given as are appropriate only to the decision of this question of law, and not to the decision under review by the Tribunal. However, this former decision must be seen in context, and in this instance in the light of the fact that the question of law arises in proceedings which can only result in a recommendation by the Tribunal.
The respondent also contended that the power of this Court does not conclude the matter and does not resolve the rights of the parties. This contention is based on the fact that the Tribunal, in reviewing the decision of the Minister under the relevant sections of the Migration Act, is empowered only to affirm the decision or recommend that the decision be reconsidered by the Minister. At the relevant time this situation, peculiar only to a review of a decision under the Migration Act, existed by reason of the combined effect of s.25(4) and s.26 of the Act and Part XXII of the Schedule thereto. Those provisions are in the following words,
"25(4), The Tribunal has power to review any decision in respect of which
application is made to it under any enactment."
"26(1) The provisions of the Schedule have effect according to their tenor
notwithstanding anything contained in any other provision
of this Act (other
than sub-section 25(2)) or in any provision of any other enactment in force at
the commencement of this Act.
(2) A reference in sub-section 25(4) to an enactment includes a reference to
the Schedule."
"Part XXII - Migration Act.
22(1) Applications may be made to the Tribunal for review of decisions made
under section 12, 13 or 48 of the Migration Act 1958-1973
other than a
decision made on a matter remitted by the Tribunal for reconsideration in
accordance with sub-clause (3).
(2) A person is not entitled to make an application under sub-clause (6) in
relation to a decision under section 12 or 13 of the Migration
Act 1958-1973,
unless ---
(a) the person is an Australian citizen; or (b) the continued presence in
Australia is not subject to any limitation as to time imposed
by law.
(3) After reviewing a decision referred to in sub-clause (1) the Tribunal
shall either affirm the decision or remit the matter for
reconsideration in
accordance with any recommendation of the Tribunal.
(4) For the purpose of reviewing a decision referred to in sub-clause (1), the
Tribunal shall be constituted by a Presidential member
alone.
(5) . . . "
At the time of the hearing before us this part of the Schedule, as I have mentioned, had been repealed and like provisions re-enacted in s.66E of the Migration Act. Nothing however turns on this.
Because the Minister is not obliged to accept any recommendation made by the Tribunal, and in particular a recommendation that his decision to deport be revoked, counsel contended that any order this Court might make on appeal would be inconclusive and would not resolve the respective rights of the parties. However such a contention is not in my opinion acceptable, because it misunderstands what are the rights and obligations at law of the parties. It seems to proceed on the assumption that the right of the deportee to review by the Tribunal and appeal to this Court are a brutum fulmen and confer no rights of substance because the Minister can ignore the recommendations of the Tribunal.
But, as a matter of law this is not the correct view. A person ordered to be deported has a number of enforceable rights and remedies. He has the right to have the decision of the Minister reviewed by an independent Tribunal in accordance with the procedures of the A.A.T. Act. Such a review follows upon the provision by the Minister of reasons for his decision which reasons are subject to the scrutiny of the Tribunal. Whereas the Minister is subject to no constraints other than bona fides in respect of the manner in which he makes his decision the Tribunal although an Administrative Tribunal, is required to proceed judicially, in accordance with law and the principles of natural justice; Minister for Immigration and Ethnic Affairs v. Pochi 36 A.L.R. at p.563. The deportee has the further right, if the Tribunal remits the matter to the Minister for reconsideration, to have the decision of the Minister re-considered in accordance with the recommendations of the Tribunal.
As has been stated, the parties to a review are entitled to have this administrative review conducted in accordance with law. Should a party desire to challenge the decision of the Tribunal on the ground that it made errors of law, that party can appeal pursuant to s.44 of the A.A.T. Act. A ruling of this Court may not necessarily have any conclusive effect on the question of deportation, but it is binding on the parties, and also on the Tribunal in the conduct of its further review, if any. It is conclusive on whether the parties (and the applicant in particular) have had a review by the Tribunal of the decision in accordance with law, and a finding on this point, either way, is binding on the parties. It is wrong to consider the conclusive nature or binding effect of an order under s.44(4) in the context of whether or not the deportation order should stand. Sometimes it may have that effect if it bears upon questions of jurisdiction. More often it will be conclusive and binding in relation to the rights of the parties to a review on the merits in accordance with the deportee's rights under the A.A.T. Act.
Thus the rights of the applicant for a review are that such a review must be conducted by the Tribunal in accordance with law. The Federal Court pursuant to an appeal under s.44 exercises a supervisory jurisdiction to ensure the enjoyment of such a right. Should the review produce recommendations favourable to the applicant, he has the further right that the Minister is required to reconsider his earlier decision and make a fresh decision in the light of the recommendation.
It follows that the powers which the Federal Court is exercising to
supervise the Administrative Appeals Tribunal and to correct
any errors of law
in its decisions are not non-judicial functions. In particular the orders
which, pursuant to s.44 of the A.A.T.
Act, this Court is empowered to make
does not involve this Court in performing a non-judicial function. The Court's
power to detect
and correct any error of law in the workings of the
Administrative Appeals Tribunal and to make appropriate orders consequent upon
such correction is a judicial function and an exercise of the judicial power
of the Commonwealth.
THE EVIDENCE BEFORE THE TRIBUNAL AND ITS FINDINGS THEREON
I can now return to the principal matters in question between the parties. I propose to proceed by considering first of all the question of whether the Tribunal did depart from a version of the facts different from that necessarily found by the jury. If I am against the Minister on this question, the appeal would, in my opinion, fail. If I am not, the necessary factual background will have been laid for the consideration of the question of law which in that event will need to be determined.
An initial difficulty in dealing with the factual question arises by reason of the nature of the material which was before the Tribunal. As earlier mentioned the depositions taken at the committal proceedings were before it. But the transcript of the evidence taken at the trial was not available. The respondent's statement was tendered. His Honour's remarks made on passing sentence were also available but not his summing up to the jury. The reason why the transcript and the summing up were not available was said to be because they had not been transcribed by the New South Wales Court Reporting service. I would have thought myself that it would have been possible in 1979 when the matter first came before the Tribunal to have obtained a complete copy of the transcript of evidence and summing up. It seems most undesirable that a proceeding of this kind should be heard without the benefit of those documents. However, the documents were not available and we must, like the Tribunal, do the best we can without them.
Counsel for the Minister said that we could safely assume that the essential evidence which consisted of alleged admissions made to police officers was the same at the trial as it was during the committal proceedings. Ordinarily I would have had substantial hesitation in making that assumption, particularly as the course proposed was opposed by counsel for the respondent. But the transcript of the evidence taken at the committal proceedings was tendered before the Tribunal by the respondent who was represented by counsel. At the time of the tender counsel said, in relation to the transcript of the committal proceedings, "If I could tender that also, as a separate exhibit because we do not have available to us the transcript, but the evidence would have been the same". Because of that statement I think, with some hesitation, that it is safe enough to rely upon the transcript of the committal proceedings as an indication of what evidence was given in relation to the essential matters at the trial. I propose to proceed on that basis.
It is clear, as counsel for the Minister submitted, that the evidence of the respondent's guilt upon which the Crown relied at his trial was evidence given by police officers of what he said during their interview with him. The evidence in question was that of Detective Senior Constable Lowe who said that on 12 May, 1977, he and other police officers took up a position in Consett Avenue, Bondi, about 50 yards from the intersection of that street with Lamrock Avenue. He saw a motor cycle leave the front of No.40 Lamrock Avenue, Bondi. Shortly afterwards it returned. The rider was a man named Raff. He dismounted from the cycle and stood on the north-western corner of the intersection. Shortly afterwards a small car arrived and stopped near the man Raff. Raff walked over to the vehicle and spoke to the occupants. All were then approached by the police. The occupants of the car included the respondent. All the men were taken to the Bondi police station. Detective Lowe, with other police officers, then went to the respondent's home in Ramsgate Avenue, Bondi. The premises were searched.
Detective Lowe returned to the police station and interviewed the respondent. He was then taken to the Drug Squad office at the Criminal Investigation Bureau in Sydney. A further interview took place in the presence of Detective Constable Jenkins. Detective Lowe's evidence was that he said to the respondent, "Earlier tonight you were arrested in Consett Avenue in a vehicle that contained a large quantity of hashish". The respondent was given the usual warning and Detective Lowe continued, "Can you tell me how the hashish came to be in the car that you were arrested in". The respondent said, "Must be other men, not me".
Detective Lowe then left the room and went to where another police officer was interviewing another of the occupants of the motor car. Detective Lowe was handed a brown paper bag which he said contained a large quantity of hashish wafers similar to ones of which he had taken possession earlier in the evening. Detective Lowe returned to Detective Jenkins and the respondent. He said, speaking to the respondent, "I have been informed that you and the man Huseyin intended to sell these wafers for the sum of $1,000 tonight". He showed him the wafers and continued, "What do you say about that". According to Detective Lowe the respondent paused for a while and then said, "Yes, you right". Detective Lowe said, "Who were you going to sell the wafers to". The respondent said, "Barry" and indicated the man Raff who was standing at the far end of the office with another police officer. Detective Lowe said to the respondent, "What arrangements had you made with the man Barry to sell these wafers". The respondent said, "Barry he come and ask for more, but this all we have". Detective Lowe said, "Who else other than the man Huseyin was involved in the sale of these wafers". The respondent said "You ask other men". Detective Lowe said, "How much money were you to receive for the sale of this hasish". The respondent said, "$1,000".
Detective Jenkin's evidence was to the same effect as that of Detective Lowe.
Although, because no copy of the summing up was available, it is not possible to see exactly how the learned trial judge left the case to the jury, it is possible to draw fairly firm conclusions about that matter by reason of what his Honour said in his remarks made on passing sentence. Amongst other things his Honour said:
"Each of these accused persons was convicted by a jury after a trial which
lasted for more than two days on a charge that each of
them on 12th May 1977
at Bondi did supply indian hemp.
In my view the verdict of the jury in each case was abundantly justified on
the evidence which was placed before them. The facts
in my view are quite
clear that on the night in question after a conversation with a man Raff who
had come to the home of one of
them, there was a plan whereby these two
persons would supply a quantity of hashish to Raff at a place chosen in the
street close
to Raff's home.
There is no doubt that the amount involved had certainly a street value of
about a thousand dollars. The fact they were in the car
with that quantity in
the circumstances in my view indicates a scheme on their part to supply in the
sense of dealing in this particular
drug.
I am quite convinced, in bringing in a verdict of guilty, that the members of the jury accepted the "evidence given by Detectives Lowe and Jenkins as to admissions made by the accused person Gungor and the evidence of Detective Hall as to the prisoner Huseyin. Without accepting that evidence it is difficult to see how a verdict of guilty could have been determined. Having accepted that evidence it is impossible to see how the verdict could not be one of guilty."
It is plain from what his Honour said that he was using the word "supply" as meaning supply in the sense of selling the drug. In other words, his Honour concluded that the jury had found that the respondent had been a party to the sale of the drug to Raff.
As mentioned earlier the respondent had made a statement after the close of the Crown case; Crimes Act 1900 (N.S.W.) ss.405, 407. The statement was in evidence before the Tribunal. In the statement the respondent said:
"I went to the living room. After two minutes or so Sedat (the man who drove the car) came inside and we were watching the television. When I ask him what happened Sedat Polat told me that - while we were all sitting together Barry Raff told him that he had some good hashish for resale and he asked us if we would like to buy some for smoking and I said to him, "Ask everybody." And in reply everybody said that, "How much?" and in reply he said that we could have bought this hashish at a reasonable price of $30 a piece because he is a friend of mine, and we all talked together and everybody accepted to go and buy some."
The respondent went on to describe how he and Huseyin left the house and were subsequently arrested by the police. The essential difference between what he said in his statement and what he was alleged to have said to the police officers was that in his statement he said that he and Huseyin were to be purchasers whereas in the alleged admissions he made to the police officers the two were to be vendors. In his statement the respondent made reference to the difficulty which he has in speaking English. His statement at the trial was apparently made without the aid of any interpreter. Nevertheless the transcript of it reveals that he spoke fluently and provided a cohesive account of what he then said had transpired on the evening in question. The transcript also reveals that he did not need prompting or assisting in any other way during the course of the statement. I have no hesitation in saying that the experienced trial judge who dealt with the matter would have seen to it that an interpreter was available to assist the respondent had this been at all necessary.
Notwithstanding the width of the definition of "supply" in the Poisons Act to which reference has been made, it is clear that the offence provided for in s.21(1)(a) of the Act of supplying Indian hemp is not committed unless the accused is shown to have participated in the sale, agreement to supply, offering to supply or keeping or having in possession for supply or sending, forwarding, delivering or receiving for supply. Thus, although the conduct described in the respondent's statement may have involved him in some other criminal liability, it could not involve him in the commission of the offence charged because his story was that the two men were asked if they would like to buy the drug for smoking. It is true that included amongst the acts which can constitute "supply" for the purposes of the Act is the act of receiving for supply. What the respondent said in his statement, however, would not involve him in acquiring the drug for the purposes of having it available for supply to other persons.
It was no doubt considerations of this kind which led the learned trial judge to say, in that part of his remarks made on passing sentence which I have already quoted, that he was convinced that the members of the jury accepted the police evidence of admissions made to them by the respondent. Unless the jury did accept those admissions it is not possible to perceive how a verdict of guilty could have been justified. That is in effect what his Honour said.
After the trial the respondent gave three further accounts of the events which transpired on the evening of 12 May, 1977. Each of these was in evidence before the Tribunal.
The first of these subsequent accounts was given in an interview conducted by Mr. Dickie who is a clerk in the Criminal Deportation Section of the Department of Immigration. The interview took place on 19 July, 1978. According to Mr. Dickie the respondent said that he was innocent. He claimed that he and Huseyin decided to go for a drive. They were stopped by police, who, upon searching their car, located the Indian hemp. Mr. Dickie continued:
"Gungor claims that the Indian Hemp must have been 'planted' in the car. He could however offer no explanation of who would want to implicate them or how the drugs were placed in the car without their knowledge".
The second account was given to a Mr. de Sousa of the New South Wales Probation and Parole Service whose undated report was in evidence before the Tribunal. Mr. de Sousa said that the respondent maintained his innocence of the offence. He claimed that he and Huseyin "happened to become associated with persons who had connections in the drug sub-culture and became fortuitously involved when the drugs were being passed."
It is to be observed that these two accounts are themselves different and that each differs from the competing accounts given in evidence at the trial, one to the police officers and the other in the respondent's statement.
What the respondent said to Mr. de Sousa is in line with his final version given in his evidence at the hearing before the Tribunal. A reading of that evidence makes it difficult, from what is contained in the transcript, to understand precisely what the respondent was endeavouring to say. That is the case, notwithstanding that he had available an interpreter to assist him in giving evidence and was represented by experienced counsel. However, the purport of his evidence was that he was not implicated in the supply but facilitated the supply of the drug by others, including Huseyin, to Raff.
The Tribunal analysed the evidence given by the respondent, the statement made by him at his trial and the evidence of the interview given by the police officers. It did not have the benefit of any oral evidence from the police officers nor was Mr. Dickie called. Mr. de Sousa was called but his evidence was mainly concerned with the behaviour of the respondent after his release from gaol on parole. In any event there is consistency, as I have mentioned, between the account given by the respondent in evidence before the Tribunal. The Tribunal concluded that the respondent's evidence should be accepted. It said that his admissions to the police officers were to be explained upon the basis that there was a misunderstanding.
It was the Tribunal's acceptance of the respondent's evidence which led to the attempt to rely on a ground of appeal that the findings of the Tribunal were against the evidence and the weight of the evidence. Such a ground does not, as I have earlier said, raise a question of law.
In the course of its reasons the Tribunal said:
"After giving the evidence much consideration I do not doubt that the drugs in question were Huseyin's drugs. He would have had to grow or pay for them. Accordingly he would not have shared the whole $1000 equally with anybody. In addition if Huseyin was to share with anybody Sedat had a claim for his part in the affair. This follows not only from the applicant's evidence as to that part but from the fact that it was Sedat who drove the car to the place where the sale was actually to take place, and had otherwise played a vital part in the proposed transaction. And there was the fourth man who could scarcely have been an innocent bystander. I think it unlikely that the applicant would have made the admission alleged save so far as it related to the price to be paid by Barry Raff being $1000. This does not affect the conviction at all because as an aider and abettor the applicant was necessarily guilty of the offence. But it is important as background."
It is to be observed that the Poisons Act itself does not provide for an offence by an aider and abettor, but the position is covered by s.351 of the Crimes Act 1900 (N.S.W.) which provides that any person who aids, abets, counsels, or procures the commission of any misdemeanour, whether the same is a misdemeanour at common law or by any statute, may be indicted, convicted, and punished as a principal offender. Accordingly, given the acceptance of the respondent's evidence by the Tribunal, its conclusion was open to it upon the material which it had before it.
The Tribunal went on to weigh the various considerations necessary to be taken into account in order to determine whether the decision that the respondent be deported should be affirmed. Amongst other things it said that the respondent was a person who had been a sporadic smoker of cannabis "and did on one occasion act as go-between to promote a sale of drugs by a person having the same for sale and that he did this in the hope of reward unspecified but not received". Later the Tribunal said that it attributed the crime to, amongst other things, "the fortuitous overhearing of Huseyin's words in the coffee lounge". Later still the Tribunal referred to the respondent as "a one time meddler in the sale by another of a relatively small parcel of Indian hemp". The emphasis is mine.
The passages cited from the Tribunal's decision make it clear that, by reason of its acceptance of the respondent's evidence, he was treated, not as a person who had actually participated in the supply of the drug, using that expression in its ordinary sense, but rather one who had been on the sidelines of the transaction and was guilty of the offence, not by reason of any alternative application of the definition of "supply" in the Poisons Act, but because he was an accessory before the fact within the meaning of s.351 of the Crimes Act. I conclude therefore that the Tribunal took a different view of the offence from that taken by the trial judge of what was necessarily involved in the jury's findings.
We were referred to the difficulty that often arises when a trial judge comes to sentence a person who has been convicted, whether as the result of a verdict after a plea of not guilty or as the result of a plea of guilty, of determining what facts should be adopted for the purpose of deciding upon an appropriate punishment. I would not wish to under-estimate that difficulty. At the same time I would not wish to be included amongst those who see the problem as so difficult that sentencing judges are rarely able to determine the particular facts relating to a charge of which an accused person has been convicted. In other words, I am sure that one can over-emphasise and give undue weight to the difficulty which is said to exist.
In the present case the evidence supports the view of the matter taken by the trial judge. He did not consider that there was anything ambiguous in what the respondent was claimed to have conceded to the police officers. There was a straight out issue of whether the respondent had agreed to supply the drug or was a person to whom the drug was to be supplied. That issue was determined adversely to the respondent with the necessary consequence that the jury must have accepted the police evidence. The respondent was represented by counsel at a trial the fairness of which has not been challenged. No appeal from the conviction or sentence was brought.
In those circumstances there can be no doubt that the respondent was convicted because he was implicated in the proposal actually to supply the drug to Raff, using the word "supply" in its ordinary sense.
In its decision the Tribunal has taken an entirely different view of the
offence. It should be clear that that view was based upon
evidence given by
the respondent to it. That evidence was not available to the jury or the trial
judge, any more than were the differing
versions of what had occurred given by
the respondent to Mr. Dickie and Mr. de Sousa after his conviction and
sentence. There is
nothing in the Tribunal's decision which would lead one to
the conclusion that the Tribunal differed from the conclusions of the
learned
trial judge which were based entirely on the evidence given at the trial. That
is subject to the Tribunal's construction
of what is to be taken from the
respondent's statement to the police officers, "Yes, you be right". But the
Tribunal was only able
to reach its conclusion about the effect of those words
because of the respondent's evidence given during the hearing before it.
It
follows that the different conclusion about the facts came as the result of
the new evidence led before the Tribunal. It is safe
enough to assume that
without that evidence the Tribunal would have reached the same view of the
facts as did the learned trial judge.
In my opinion the trial judge's view of
the facts, based as it was on the material before him, was the only one which
was reasonably
open to him to adopt.
DID THE TRIBUNAL DEPART FROM THE VIEW OF THE
FACTS NECESSARILY FOUND BY THE JURY?
I have now referred to sufficient of the evidence before the Tribunal and its findings thereon to come to the initial question of whether it is established that the Tribunal did depart from a view of the facts relating to the crime which must necessarily have been the view of them adopted by the jury in determining to find the respondent guilty of the crime with which he was charged.
In my opinion the analysis of the evidence before the Tribunal and its
findings thereon which I have undertaken makes it abundantly
clear that the
Tribunal did, at the invitation of the respondent and quite consciously,
depart from the view of the facts necessarily
adopted by the jury in reaching
its verdict. No doubt the Tribunal, in taking this course, thought it lawful
to do so. What was done
was in line with dicta of other presidential members
of the Tribunal to which I shall in due course refer. In the result, however,
the respondent's preliminary submission must be rejected. The assumption
underlying the question of law which the Minister wishes
determined is
established. The Tribunal did not accept the view of the facts of the matter
which must necessarily have been adopted
by the jury in reaching its verdict
of guilty. Was it an error of law for it not to do so?
ERROR OF LAW OR NOT?
Since the argument on the principal questions which took place last year, the matter of the effect of the conviction upon which the Minister has acted for the purposes of s.12 of the Act has been the subject of two decisions of other Full Courts of this Court. They are Minister for Immigration v. Daniele (17 December 1981) and Degerli v. Minister for Immigration (23 December 1981) both as yet unreported. Of the two cases the former is the more relevant. It was a case where the Tribunal had allowed an appeal principally because of a supposed misdirection by the learned trial judge and the view of the Tribunal that, in consequence, the applicant might not have been convicted of the crime of manslaughter had the proper direction been given. It seems clear from the judgments of the Court that the judges there thought it improper for the Tribunal to inquire into a matter of that kind. In any event they concluded that there had been no misdirection so that the applicant was properly convicted. The contrary conclusion of the Tribunal was erroneous in point of law. As well the Court thought that the Tribunal had allowed itself to become over concerned with the course of the trial, thereby taking an irrelevant consideration into account. It had also overlooked the need to consider a number of other significant matters. For those reasons the decision of the Tribunal was set aside.
In the course of their judgment Fisher and Lockhart JJ. said (pp.7-9):
"The conviction is the genesis of the Minister's power to deport. There are
powerful reasons of public policy why the Tribunal cannot
ignore the
conviction or seek to set it at nought. That is not to say that the
circumstances surrounding the commission of the offence
or matters relating to
"the trial itself cannot be examined by the Tribunal. However such examination
is for the purpose of enabling
the Tribunal to make its own assessment of the
nature and gravity of the applicant's criminal conduct and not for the purpose
of
assessing the propriety of the conviction or the fairness of the trial.
Whether these circumstances and matters are susceptible of
examination and the
extent of that enquiry will vary from case to case. The matters which the
Tribunal is called upon to determine
are wider than and different from the
questions which a trial judge and jury must determine.
The Tribunal's task includes assessing the deportee's character and
personality, his criminal behaviour, the risk of repetition
of criminal acts,
the likelihood of his rehabilitation, the future risk to the Australian
community if he remains here and the likelihood
of harm to him if he is
deported.
Counsel for the applicant contended that the Tribunal in performance of this task was bound to accept the conviction and the facts necessarily found by the jury in reaching its verdict. We agree that the Tribunal is bound to accept the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant's standing and credit in the community. However we cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. To conclude otherwise would be to attempt to introduce into proceedings of the Tribunal a doctrine equivalent to that of issue estoppel. Such a doctrine has not found a sure place in respect of issues arising out of criminal proceedings either in this country or the United Kingdom and is even less at home in the proceedings of a Tribunal composed in part of laymen and directed to follow informal procedures."
For present purposes the most significant statement in the judgment of Fisher and Lockhart JJ. is that in which they say that they cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. That statement may suggest to some that the Tribunal is entitled to examine facts necessarily found by the jury even where such examination will lead the Tribunal to the conclusion that such facts ought to be regarded as erroneously found and be put aside because other evidence - called before the Tribunal but not at the trial - would lead one to the conclusion that the jury or trial judge acted, albeit understandably, on a wrong or mistaken view of the evidence. But, in the light of what their Honours have elsewhere said, I do not take them to be going so far. The decision in Degerli and earlier cases relied upon by counsel for the applicant in the present proceedings are against such a view of the law.
The two recent judgments avoid the necessity for this Court to embark upon a detailed analysis of earlier decisions of the Tribunal and of a number of authorities discussed in argument before us. Nevertheless some mention of these decisions and authorities should be made. The earlier decisions of the Tribunal were In Re Kannan and Minister for Immigration (1978) 1 A.L.D. 489, In Re Frith and the Minister (1978) 1 A.L.D. 590, In Re Pochi and the Minister (1979) 2 A.L.D. 33 and In Re Habchi and the Minister (1980) 2 A.L.D. 623. The authorities to which I have referred were General Medical Council v. Spackman (1943) A.C. 627, Ong Bak Hin v. General Medical Council (1956) 1 W.L.R. 515 and Ziems v. The Prothonotary of the Supreme Court of New South Wales (1957) 97 C.L.R. 271. Of the three authorities I consider that Spackman's case and the case of Ong Bak Hin, which followed it, more relevant than Ziems' case. The High Court was there concerned with the inherent power which the Supreme Court of New South Wales has to deal with barristers who are alleged to have been guilty of misbehaviour warranting disbarment or suspension from practice. The Tribunal in the two General Medical Council cases, although a domestic one, was given by parliament statutory responsibility for the register of medical practitioners. The powers of the Tribunal were thus exhaustively provided for in the relevant statute as are the powers of the Administrative Appeals Tribunal in the Administrative Appeals Tribunal Act. No question exists of there being any inherent power. Statements in the two cases as to the significance of a finding of adultery or a conviction for a crime have, to my mind, more relevance in relation to a tribunal which owes its existence and powers entirely to the statute which constitutes it. Spackman's case was analysed and relied upon both by Brennan J. in Pochi (2 A.L.D. at pp.38-39) and Davies J. in Habchi (2 A.L.D. at p.625). The conclusions reached by the two Presidential members of the Tribunal as the result of this analysis were not, however, the same.
The relevant passage in Spackman's case is in the speech of Viscount Simon L.C. His Lordship said ((1943) A.C. at pp.634-635):
"It is not disputed that the General Medical Council, in exercising this jurisdiction, is not a judicial body in the ordinary sense. It is master of its own procedure and is not bound by strict rules of evidence. It is not subject to correction by the courts as long as it complies with s.29 of the Act of 1858. That section draws a significant distinction between a case in which the impeached practitioner has been convicted of felony or misdemeanour and a case in which the allegation of infamous conduct is not connected with a criminal conviction. In the former case, the decision of the council is properly based on the fact of the conviction, and the practitioner cannot go behind it and endeavour to show that he was innocent of the charge and should have been acquitted. In the latter case, the decision of the council, if adverse to the practitioner, must be arrived at 'after due inquiry' and this of course means after due inquiry by the council."
It is true that his Lordship was not there concerned to say anything about facts necessarily found by a jury or trial judge which facts formed the essential basis for the conviction which was recorded. But in substance there can, except perhaps in a very rare case, be no valid distinction between a course which has the effect of going behind a conviction and one which has the effect of setting that conviction at nought. To draw such a distinction could well lead to a situation where lip service only was paid to the conviction. It could be treated as no more than a formality, the applicant being permitted to demonstrate that he was not guilty of criminal conduct which must have been the basis of the trial court's decision to convict him.
I should mention at this point that Davies J. in Re Habchi (supra) seems to have regarded cases under the Migration Act as falling within Viscount Simon's second category. In my respectful opinion the terms of ss.12 and 13 of the Act are such as to make it clear that cases arising under those sections fall within Viscount Simon's first category. Once that is understood a great deal of the difficulty which surrounds this problem disappears.
I have earlier referred to the difficulty which often confronts a court or tribunal which has to determine whether a particular issue must necessarily have been resolved by a trial court before which an accused person has been convicted. Often it will not be possible to say whether such an issue was resolved or not. But I do think, as I previously said, that the difficulty can be over emphasised, careful though one must be in drawing a conclusion. And, with respect, I do not think that the fact that there can be no issue estoppel arising out of a criminal trial of itself prevents the exercise being embarked upon.
In the present case there can be no doubt, having regard to the earlier analysis of the evidence, that the respondent was convicted of actual supply of the drug by reason of the jury's acceptance of what the police officers claimed he had admitted to them. Otherwise, as the learned trial judge said, there could have been no conviction. The jury would have been bound to acquit. Nevertheless the Tribunal has concluded that, whilst the applicant was rightly convicted, that was the case only because the evidence led before it established that he was not himself a supplier but rather a person who had aided and abetted another person who had supplied the drug. He was a principal in the second degree - not in the first degree as the jury must have found.
The taking of such a course by the Tribunal has, in my respectful opinion, the effect both of going behind the conviction and setting it at nought. In my opinion it was not open to the respondent to lead evidence for the purpose of showing that he was a principal in the second degree rather than in the first. Certainly it was not open to the Tribunal to treat him as convicted on the basis of that conduct rather than upon the basis of conduct which made him a principal in the first degree. To proceed as it did involved it in an error of law.
I do not believe that such a conclusion is greatly restrictive of the Tribunal's difficult and important function in deportation cases. If the view I have proposed prevails, the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless, I concede that the view I favour may in some cases have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for it because it will need to determine whether particular evidence sheds light on the way conduct on the part of an applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction. It will be necessary for the Tribunal to be aware at all times of the purpose for which it receives (or has received) the evidence and for which it uses the evidence. If the evidence in question is in truth evidence which involves the applicant in seeking to go behind the conviction or to have the conviction set at nought, it ought to be put aside; otherwise it will need to be weighed along with all other evidence for the purpose of deciding whether to remit the matter the the Minister for reconsideration in accordance with the Tribunal's recommendation.
I would add that a compensating benefit which results from the adoption of the view which I have proposed is that apparent unevenness between the decisions of the criminal courts of this country and those of the Tribunal will be greatly reduced, if not eliminated. I am satisfied that that would be in accordance with the intention of the legislature.
For the reasons I have given I am of opinion that this appeal should be allowed. The matter should be sent back to the Tribunal for redetermination. I would leave it to the Tribunal to determine whether further evidence may be led by the parties.
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