Minister for Immigration & Multicultural Affairs v "SRT" [1999] FCA 389 (29 March 1999)

Last Updated: 28 April 1999

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v "SRT" [1999] FCA 389

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V "SRT"

NG 1003 OF 1998

THE HON JUSTICE MARCUS EINFELD AO

SYDNEY

29 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1003 OF 1998

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant
AND:	"SRT" Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	29 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is a particularly difficult case. As I imagine that whatever my judgment is there will be further appeals, and as I have formed a clear view of what the result should be, I do not propose to delay giving a decision. A Full Court and perhaps the High Court are likely to be asked to consider the legal principles in some detail and nothing a first instance judge can add in this connection is likely to be helpful.

2 The first thing I should like to say about the case is that the learned Deputy President of the Tribunal made a very bold and competent attempt at dealing with what must have been for him a very difficult case to resolve for the reasons which I shall briefly mention.

3 The decision as to deportation is not for me to make. To the extent only of revealing the direction from which I come to the matter, I respectfully disagree with the final conclusion of the Tribunal. For my part, people who come to Australia but do not take out citizenship, preferring the flexibility of permanent residence, and who commit or participate in committing serious offences, would require an overwhelming contribution to the Australian national wellbeing to avoid deportation. It is common ground in this case that this particular permanent resident has made virtually no contribution to the Australian community.

4 One thing he has done is to have formed an apparently affectionate and close relationship with the child of his wife, who is not his child. This is important because it appears that the child's mother is a drug abuser with little apparent indication that she is likely to reform. A matter which weighed heavily with the Tribunal in this regard was Article 3(1) of the United Nations Convention on the Rights of the Child, which provides that the best interests of the child should be a primary consideration in, amongst other places, matters relating to children coming before courts of law. But for obvious reasons the Tribunal did not inquire as to what other arrangements could be made for this child if the non-citizen was deported, and it was not bound or even enabled to find that this child's interests could only be protected by leaving this man in Australia. Moreover, leaving aside the legal status of the Convention in Australian courts, a matter of no little controversy, this application was not a matter relating to this child as envisaged by the Convention even though the interests of the child were indirectly caught up in it. Whatever the availability of the Convention in Australian courts, a person cannot call it in aid of an otherwise indefensible position by involving a child in the issues raised.

5 For my part I should have thought that the factors favouring deportation are significantly greater than those opposing it. But as has been pointed out in many cases, this Court's role in this type of case is extremely limited, making this a good case to demonstrate why the law defining the court's jurisdiction is so unsatisfactory. In my view, if there is a court review of matters as serious as this, it should be a comprehensive review and not a symbolic or token review as it is at present.

6 The brief circumstances of the case are these. The applicant before the Tribunal was born in Dublin, Ireland on 26 January 1972, so that he is now 27 years old. He is a citizen of Ireland. On 9 June 1986, when he was almost 14 and a half years old, he came to Australia with members of his family and was granted permanent residence. The relatives or close family members who are now in Australia are his mother and father, a twin brother and two sisters, a wife, and the wife's child, his stepson. He has a brother in the United States, and a grandmother and other relatives residing in Ireland.

7 On 20 May 1991, he participated in the felonious slaying of a man named John Steven Cranfield in Surry Hills. It is common ground that he went to the home of Cranfield with a person named Darren Scott Oliver ostensibly for the purpose of obtaining drugs, or money to obtain drugs. The evidence appears to have shown that Cranfield was at the time suffering from AIDS. In gruesome circumstances which are set out in the papers, and which I will not detail now in the presence of Cranfield's father and sister because it can only distress them, Cranfield was killed by the actions of Oliver with the participation of the non-citizen. The circumstances of the offence were particularly violent but it appears that the non-citizen may not have caused the fatal injury.

8 He was tried twice for his participation in the crime. In the first trial the jury acquitted him of murder and convicted him of manslaughter. The matter went to the Court of Criminal Appeal on all grounds and as the conviction was set aside on the ground of a misdirection, there was no judgment on the appropriateness of the sentence. The acquittal on the ground of murder at the first trial prevented the inclusion of the charge of murder in the second trial but he was tried with manslaughter and again found guilty. In April 1994 he was given a minimum term of penal servitude of 3 years and 5 months and an additional term of penal servitude of 3 years to date from 14 September 1997. There was no appeal from the second conviction and sentence.

9 During his summing up in the second trial, the trial judge gave the jury two possible bases upon which the non-citizen could be convicted of manslaughter. One was that he was a comparatively minor participant in the offence in that, in general terms, he handed the knife used in this killing to Oliver, its perpetrator, who pleaded guilty to murder. The other was that he actually inflicted stab wounds on Cranfield believing but not being absolutely certain that he was dead at the time.

10 With profound respect to the very experienced trial judge, Justice James Wood, I have some difficulty with the second definition of manslaughter. No doubt the submissions made by counsel to the trial judge at the trial influenced his Honour's leaving of the two alternatives but, as I see it, it is so close to murder as to be very difficult to separate from that crime. But like the Tribunal, I must proceed upon the basis that those two options were available to the jury. A third possible option was that the jury could find both of the proffered options, although the way in which the matter was left to the jury implied that they were invited to find one or the other.

11 In view of the relatively light or moderate sentence, one view is that Justice Wood believed that the first of those two options was the decision of the jury or was his Honour's own finding of fact for the purpose of sentencing. Another view, which certainly arises from the words used by his Honour at the time, is that his sentencing determination was merely showing comity and support for the sentence which had been passed by the trial judge at the first trial with which it was very similar.

12 When it came to consider the facts of this particular case from the deportation point of view, the Tribunal was faced with the situation that the legal system had encountered difficulty in divining the offence that the non-citizen had committed. The problem for the Tribunal was how it was going to make the findings of fact required for its determination on deportation. The problem was significant because without trying the offences again, which was certainly not a task for the Tribunal or for this Court, it could only make findings of fact based upon documents and a minimal amount of oral evidence.

13 The task was almost impossible. If the Tribunal had found that the second and more serious of the two scenarios was the finding of the jury, it would have been criticised for doing so without certainty that the jury had so found beyond reasonable doubt. Yet for proceeding on the basis that the jury chose the first option, the Tribunal finds itself now criticised by the Minister in this case for failing to take into account the material consideration of the other option.

14 I invited counsel for the Minister to say how and in what way the second option was not considered, and to show why the Tribunal was bound, or was even likely, to have taken the broader or more serious view of the matter. I was only told that the Tribunal failed to consider the more serious scenario and in doing so omitted to take into account a relevant consideration. I sought more assistance on the meaning sought to be ascribed to "consider" and "take into account" but nothing was forthcoming. Of course the terms are well known and their meaning well canvassed in the cases. It is difficult to see how the relevant criteria were infringed by the Tribunal in this instance.

15 It was also submitted that the Tribunal misdirected itself on the meaning and substance of the decision of the High Court in R v Storey [1978] HCA 39; (1978) 140 CLR 364, and that it put its own view as to what the jury might have done. Despite these submissions, this is not the occasion for a re-definition of the crime of manslaughter or for the formation of a view about what crime was committed or what facts were found by the jury. I agree that in the light of the directions it was given, its verdict is, from the standpoint of the Tribunal, ambiguous and capable of being viewed in different ways. But I think it is clear from the Tribunal's decision that it did not omit to take into account the second scenario as one view of the facts that might be taken. In fact, the Tribunal made quite clear in its judgment that it understood what the two scenarios were and that it considered them.

16 The Tribunal also pointed out that the trial judge had made a finding of fact, for the purposes of sentencing, that the non-citizen had inflicted the fatal wound. I find that particular circumstance even more intriguing in terms of the validity of the second scenario as a possible case of manslaughter. However, as I have previously stated, it is not for this Court to put its viewpoint, or at least be bound by its viewpoint, in relation to the relevant criminal law. I must accept what happened before the jury, as was also the obligation of the Tribunal, and we must both accept that the jury's verdict was made in accordance with the directions which it was given.

17 I do not at all think that the Tribunal put its own view of what the jury found. Certainly, it made an attempt to understand the law relating to manslaughter and tried to put the determination of the jury within the context of its understanding of the decision in Storey and the decision of the High Court in Wilson v R [1992] HCA 31; (1992) 174 CLR 313. The Tribunal was addressed on these cases and was in effect asked to make findings about the matters they raise. But I do not think that, in its response to these submissions, the Tribunal put a gloss on the jury's verdict. The Tribunal undertook the difficult task of assessing how seriously the jury regarded the offence and extrapolated facts consistent with a fair or available view of the jury's conclusions. In other words, it simply made the findings required of it in the best way it could on the material before it. I do not think that the Tribunal misdirected itself in relation to Storey, but if it did, any misdirection did not affect the ultimate outcome of the litigation.

18 I also do not think that the Tribunal failed to take into account Justice Wood's alternative scenario. It found the facts as required by law. This Court is frequently criticised by the Minister's counsel, and even by the Minister himself, for substituting its own view of the facts. We are regularly exhorted not to interfere with the Tribunal's assessment of the facts. I will, as always, try to make sure that I do not do so. In order to uphold the submission of the Minister, I must therefore find that the Tribunal's factual assessment is in some way erroneous because of failure to comply with a legal principle appropriate to this type of case.

19 In our system it is impossible to determine which of two, three or four available choices a jury makes in a particular case. It is even possible that a jury comes to a conclusion that lies outside the choices given to it by a trial judge and there are no facilities for examining what conclusions were actually reached. The Tribunal was thus faced with the need to come to a conclusion as to what facts, consistent with the jury's verdict, should be found. In doing so, it did not make a finding about the facts based on the decision in Storey. It concluded that the first of the options put by Justice Wood to the jury was the more likely of the conclusions that the jury reached and that this finding was consistent with its own view of the facts on all material before it. I think that this mechanism of determination accorded with law.

20 The Tribunal was entitled to consider it unlikely that the non-citizen would have been given the sentence which he received had it been suggested that he had done something more than the first or less serious option. I do understand that the decision on sentence was expressed to give credence and support to the result of the first trial in that regard. But that sentence would have accorded with that Judge's assessment of the facts as disclosed in that trial. The Tribunal was entitled to take into account that the nature of the involvement of this person in the crime would have been so much greater had the more serious scenario been accepted that the sentence pronounced would have been wholly inappropriate if those facts had or should have been found. No appeal was brought against the leniency of the sentence. Thus any assessment of the jury's verdict by the Tribunal could not be classified as whimsical or other than evidence-based.

21 The Tribunal made a comprehensive and competent attempt to resolve this litigation within the framework of the matters which it was appropriate for it to consider, and so far as I can see, it did so without significant error of law. I say `significant' because some might think that there were ways of expressing its conclusions which would have demonstrated more fully the Tribunal's appreciation of the issues. I do not criticise anything in that regard because in my view the Tribunal's decision was clear and clearly explained. But if there are criticisms, they are at worst matters of style and not of substance. The Tribunal determined that the non-citizen was guilty of manslaughter in the circumstances of having played a relatively minor role in the causing of the fatality. In my view this conclusion was one of fact open to it on the available material.

22 Although, as I have said, my own view is that even with that finding, the original decision to deport was correct, that is not my decision to make. My only role here is to determine whether the Tribunal committed any relevant error of law in its considerations and I have come to the clear view that it did not. For those reasons, the appeal from the decision of the Tribunal will be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated: 29 March 1999

Counsel for the Applicant:	Ms V. Hartstein
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr R. Beech-Jones
Solicitor for the Respondent:	Antonys Lawyers
Date of Hearing:	29 March 1999
Date of Judgment:	29 March 1999