General principles

In All Class Insurance Brokers Pty Ltd [in Liq] v Chubb Insurance Australia Ltd,[1] Allsop CJ wrote in respect of the well settled principles:

[40]  Where the applicant is a corporation, the Court is empowered to order security for costs pursuant to s 1335 of the Corporations Act if “it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant”. Once this threshold is met, the Court will turn to the matters relevant to the exercise of its discretion to order security for costs: Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65;  98 ACSR 301.

“If the evidence does not permit a conclusion of stultification that does not make the impecunosity of the party and the difficulties in providing security (such as they are proved) irrelevant”

[41]  Section 56 of the Federal Court of Australia Act does not expressly impose any threshold to be met before the Court considers the various discretionary matters. However, the applicant’s inability to pay the costs of the respondent remains an important consideration in the exercise of the Court’s discretion.

[42]  The Court’s discretion to require the provision of security for costs is broad and the factors informing the exercise of that discretion cannot be stated exhaustively. The only limitation is that the discretion be exercised judicially: Bell Wholesale Co Ltd v Gates Export Corporation [1984] FCAFC 29; 2 FCR 1 at 3 . The matter which lies at the heart of the discretion is one of fairness, both in terms of whether security should be granted, and if so, in what amount: Madgwick v Kelly [2013] FCAFC 61; 212 FCR 1 at 21 [92]. The Court aims to achieve a “balance between ensuring that adequate and fair protection is provided to the defendants, and avoiding injustice to an impecunious plaintiff by unnecessarily shutting it out or prejudicing it in the conduct of the proceedings”: Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 at 470 (Giles J).

[43]  The Court’s discretion should be exercised having regard to all of the circumstances of the case (see Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] HCA 41; 193 CLR 502 at 513 [26] (Kirby J)). There are a number of well-established factors relevant to the Court’s exercise. These include (see KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76; 56 FCR 189 at 197 –198 per Beazley J): whether the application for security for costs has been brought promptly; the strength and bona fides of the applicant’s case; whether the applicant’s impecuniosity was caused by the respondent’s conduct subject of the claim; whether the respondent’s application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate; and whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security.

[44]  An additional factor to add to this list is whether there are aspects of public interest which weigh in the balance against the making of an order (see Equity Access Ltd v Westpac Banking Corporation [1989] FCA 520; ATPR 40–972 at 50,635 per Hill J).

Stultification

An issue which occasionally arises is that of “stultification”; that is, the inevitable non-satisfaction of the ordered security would serve to preclude the pursuit of what is a prima facie good cause of action.  While that may seem a self-evident consequence, the issue is one of substance.

“… the circumstance of there being a complete identity between the corporate plaintiff and the individual plaintiff so that all plaintiffs are suing in relation to one and the same defendant and all plaintiffs must succeed or fail together.”

In Madgwick v Kelly,[2] Allsop CJ and Middleton J wrote:

[81] The respondents submitted that the characteristics of the group were relevant to the question of stultification. The onus of establishing that the making of an order would stultify the suit rests on the party resisting security: Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1 at   4; 52 ALR 176 at 179 (Bell Wholesale); Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd (2007) 65 ACSR 383; 25 ACLC 1707; [2007] NSWCA 344; Green at [45] and [82]. That proposition is, to a degree, uncontroversial. A failure to prove stultification does not mean, however, that security must be provided. Indeed, as Hodgson JA (sitting alone as referrals judge) said in Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 at [26] (Dae Boong), if the evidence does not permit a conclusion of stultification that does not make the impecunosity of the party and the difficulties in providing security (such as they are proved) irrelevant. As Hodgson JA said, if those who stand to benefit from the proceedings are reasonably unwilling, even though possibly able, to provide security, that may be a factor to be taken into account.

[82]  These considerations are especially apt to consider in a class action for the kinds of reasons referred to by the primary judge. The group members may or may not be willing to disclose their assets. They have no obligation to do so. The group members may be largely unidentified. The kinds of considerations to which the primary judge referred may not be sufficient to ground a defensible finding on likely stultification (to which question, we will come), but they are not irrelevant to the overall exercise of discretion. The generality of the discretion in s 56 should not be lost sight of. In Dae Boong, (although in the context of an application for security for costs pursuant to s 1335(1) of the Corporations Act) Hodgson JA went to the heart of the discussion in terms particularly apt for adoption in group proceedings when he said at [27]:

Ultimately it seems to me the question to be determined by the court is whether it is fair that the person being sued by the company should be in the position of having to incur substantial costs, in this case perhaps tens of thousands of dollars of costs, and being at risk of liability for the company’s costs, and yet have no real chance of recovering costs even if the action is unsuccessful, when there are persons who would benefit from the proceedings, who face no risk of liability for costs themselves and are either unwilling or unable to provide security.

[83]  Thus, it was not wrong for the primary judge to take into account the subject of unwillingness of people to contribute as a relevant factor. This has support in a number of cases: BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339 at 344–345; Ariss v Express Interiors Pty Ltd (in liq) [1996] 2 VR 507 at 515; and Jeffcott Holdings Ltd v Paior (1997) 15 ACLC 28 at 32. Of course, unwillingness in itself is not determinative, and the question of the reasonableness of any unwillingness to contribute must be considered in determining what is fair in all the circumstances. In the context of the applications for security for costs brought in these related class actions, the reasonableness of requiring people to contribute (and to what extent) was an important factor to consider in the context of Pt IVA.

The issue of onus of proof of stultification burdening plaintiff or defendant is the subject of a reserved appeal from the decision of Markovic J in St Mary’s Hog’s Pty Ltd v HBCA Pty Ltd.[3]

Corporate and natural person plaintiffs

What of the case where the plaintiffs – or appellants – consist of both a natural person and a corporation?

The recent decision of Leeming JA in Hung v Aquamore Credit Equity Pty Ltd[4] involved an application for security made in the New South Wales Court of Appeal by an appeal respondent against the natural person and corporate appellants.  It will be remembered that security is rarely awarded against a natural person.  In this regard,  in St Mary’s, Markovic J pithily summarised the relevant law (at [135]):

There is a disinclination to order an individual applicant to provide security, at least, in the absence of a factor in addition to impecuniosity: see Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [32]. At [33] of Knight Lindgren J identified the types of additional factors, in addition to impecuniosity, which had persuaded courts to make an order for security against natural persons. They were: where the individual is resident outside Australia; bringing a claim to a significant extent for the benefit of others; failure to show that an order would stultify a proceeding and that the sum ordered was not oppressive; and lack of prospects of success and large costs involved to defendants.

Refusing security, Leeming JA, with reference to authority, predicated a further  exception, precluding an award of security where there was a natural person plaintiff in addition to a corporate plaintiff, but solely in:[5]

… the circumstance of there being a complete identity between the corporate plaintiff and the individual plaintiff so that all plaintiffs are suing in relation to one and the same defendant and all plaintiffs must succeed or fail together. Brereton J said that in those circumstances “security will not ordinarily be ordered against only one of them”.[6]

So much reflects the Queensland jurisprudence.  In Whitelaw v Hookey,[7] Morrison JA collected and applied that jurisprudence in a case where the appellants were a natural person and an associated corporation:

[18]  Senior Counsel for the appellants submitted that there was almost a complete overlap between the issues to be agitated on the part of Mr Hookey, and those on behalf of KAHI. Thus it was contended that this was a case where any costs order would be made against Mr Hookey in any event, and since he was a primary protagonist and not simply standing behind the corporate appellant, this was not an appropriate case for security for costs.

[19]  The principles applicable on this issue appear in Molony v ACN 009 697 367 Pty Ltd (in Liq) [2003] QCA 120 at [22]-[25] and [29] by reference to the judgment of Connolly J in Harpur v Ariadne Australia Ltd [1984] 2 QdR 523 at 531-2. Harpur v Ariadne established that if there were two parties, one corporate and one who litigated in person and was a person of substantial means, it was inappropriate to order security for costs against the corporate defendant even though, looked at in isolation, such an order could be justified against them. However, that was only applicable if each of the appellants was liable to the whole of the costs. In other words, it was applicable where there was a complete overlap between the interests of the two parties. As was said by White J (as her Honour then was) in Molony: “Where there is more than one plaintiff there must be a coincidence of interest”: at [29]

[20]  This is not a case where there is a coincidence of interest. By reference to the originating application one is able to identify various forms of relief which are sought only by Mr Hookey, and not by KAHI. Those issues are substantial, consisting of a declaration that Mr Whitelaw holds half of his shares in the second defendant on constructive trust for Hookey, and consequential orders compelling their transfer. Further, paragraph 4H(b) claims the payment of $1,000,000 to Mr Hookey.

(emphasis added)

“If contrary to what I have already decided this were a case for security for costs, I would, in the exercise of my discretion, order none. That is because, irrespective of the reason such a wildly exaggerated estimate was deposed to, it is quite wrong for such estimates to be propounded in this Court.”

Excessive security quantum demands

In Hung, Leeming JA also raised an issue concerning the estimate of costs sworn to by the respondents for a two-day appeal, namely no less than $434,461. Somewhat ominously, Lemming JA wrote:[8]

Something needs to be said about the estimate of costs…I have already mentioned that counsel did not seek to defend a substantial amount of the costs to which the solicitor for the respondents … deposed.

Leeming JA noted the estimate was made at an early stage of the appeal when it was not clear as to whether the appeal would be one or two days and was “prepared at a time when there were uncertainties, including the possibility of an amendment to the notice of appeal”.[9]  His Honour, however, observed  “…many of the estimates of costs bear no relationship with the realities of defending an appeal”.[10]

His Honour wrote:

[23]  I do not seek to be exhaustive in identifying the items which Mr Hogan — Doran SC, once they were pointed out to him, very properly accepted should not be included in the total. The result was that he accepted that more than a quarter of a million dollars of estimated costs contained in Mr Seelenmeyer’s affidavit could not be justified. The concession was, self-evidently, properly made; it is absurd to think that the respondents to a one or even a two day appeal could properly incur costs of $434,461 or anything like that amount.

[24]  The reason for what was concededly a very substantially overinflated amount of the respondents’ costs being included in this application for security for costs — something which was pointed out pithily by the appellants’ written submissions — is not known to me. One possibility is that the deponent was incompetent or completely unfamiliar with the ordinary course of litigation in the Court of Appeal. Another possibility is that those costs or something like them will in fact be incurred, in which case there would be what could only be described as massive overcharging of the client. A third possibility is that the affidavit has been prepared with a view to very substantially inflating the likely costs, in order to obtain either by compromise or by Court order a much greater award of security than that to which the respondents would otherwise be entitled.

[25]  I do not know and I express no view as to whether any of those possibilities be the case. There may be other possibilities for the inflated estimates, although I made it plain during the hearing, including by giving what turned out to be a significant adjournment to permit anything that could be said in relation to those estimates being put to me. No attempt was made to produce any further evidence or explanation, save for what was said from the bar table to which I have already referred. But whatever be the reason, the fact is that the estimates are grossly inflated, far beyond the realm of what might be reasonably arguable as an estimate of the costs of an appeal.

[26]  I mention all of those things for this reason. If contrary to what I have already decided this were a case for security for costs, I would, in the exercise of my discretion, order none. That is because, irrespective of the reason such a wildly exaggerated estimate was deposed to, it is quite wrong for such estimates to be propounded in this Court. The respondents seek a discretionary order, but rely on an obviously untenable evidentiary basis for an essential element of the order they seek. As much was pointed out to them in advance of the hearing. No attempt was made to attend to the self-evident deficiencies in the evidence. A less unrealistic amount of security might be $50,000 or $70,000, as was pointed out in the appellants’ submissions, but why should even that amount be ordered when the moving party has so grossly inflated its estimate of its own costs?

[27]  The real issues in dispute are raised on the notice of appeal and the respondents’ cross-appeal from the declaration that their interest rate of some 79% per annum is an unenforceable penalty. The costs of the appeal are well removed from the real issues. The provision of security for those costs is still further removed. It is difficult to see how what has occurred on this motion could accord with the overriding purpose and the obligations to which both the respondents and their lawyers are subject in s 56 of the Civil Procedure Act. Estimates such as the grossly inflated estimates on which the respondents relied are also apt to produce disputes which cannot be resolved; hence the two hours we have spent this morning dealing with this application.

[28]  Such complaints are not new. They were explained more concisely than I have managed to achieve by Young JA in Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 100 at [11] –[16] more than a decade ago. So far as I can see the situation has not improved subsequently; to the contrary.

[29]  For those reasons I dismiss the notice of motion filed 6 May 2022.

…

[31]  … The order of the Court is notice of motion filed 6 May 2022 dismissed with costs. Despite what I just said and the tone of it, I could not have dealt with the motion today but for the assistance I’ve received from those at the bar table and those instructing them. I’m grateful for that.

(emphasis added)

Hung is a timely reminder for counsel for an applicant, once briefed, to give timeous and reasonable consideration to evidentiary content and sufficiency – whether estimates of costs for security, or otherwise – before such an application is filed, or if briefed after filing then, if necessary, seek an adjournment to effect  evidentiary “repair”.  If that proves abortive, independent candour with the court must ensue as to such content (as occurred on the part of counsel in Hung).

The price of ignoring these steps may be not just lack of success in garnering the security relief together with an order for costs against the applicant, but also a possible stain on counsel’s professional reputation as an advocate.

Editor’s note:

On 26 September 2022, the Full Court of the Federal Court – in a decision going by the name Goodwin v HBCA Pty Ltd – dismissed an appeal from the decision in St Mary’s Hog’s Pty Ltd v HBCA Pty Ltd [2022] FCA 52,referred to in the above article.  The issue is further discussed in an item in Hearsay Issue 91.

[1] [2020] FCA 840

[2] (2013) 212 FCR 1

[3] [2022] FCA 52

[4] [2022] NSWCA 123 (4 July 2022).

[5] Including Street v Luna Park Sydney Pty Ltd [2006] NSWSC 1317 at [27] – [28].

[6] Ibid at [16].

[7] [2020] QCA 145.

[8] At [21].

[9] Ibid.

[10] At [22].

Chambers conference rooms have been updated with the latest technology. Courts have issued practice directions. Zoom filters have been set (or perhaps turned off). What more does the profession have to do?

According to Professor Richard Susskind OBE, a lot more.

Attendees at the recent Australian Bar Association Conference were fortunate to hear from Professor Susskind who proffered his thoughts on “The Future of Courts: access to the law, remote courts and justice re-imagined”.

Professor Susskind is a specialist in legal technology, having authored countless books and papers on the topic. Since 1998, he has also served as the IT Adviser to the Lord Chief Justice of England and Wales. There is no doubt about Professor Susskind’s eminence in addressing the Australian bar about technology and the law.

What was apparent from Professor Susskind’s address and his writings, such as Tomorrow’s Lawyers: an introduction to your future (published by Oxford University Press, 2nd edition 2017) is that the law not only still has capacity to adopt more technology, it has an imperative to do so. While COVID-19 may have accelerated the adoption of the virtual court room, that does not meet the demands of modern clients nor does it address the issue of an ever-increasing workload for judicial officers. One viable solution, according to Professor Susskind, is artificial intelligence (AI). 

Does that mean C3PO is next for a judicial appointment?

Based on Professor Susskind’s years of research (he has had a long-standing interest in AI and the law, having completed his doctorate on the topic during the mid-1980s), his discussion of AI focusses on document analysis, machine prediction, legal question answering and document automation. Professor Susskind draws on various examples of where developments in AI have continued to surpass expectations. A “powerful” example that Professor Susskind refers to in Tomorrow’s Lawyers (noting that the most recent edition of the book was published in 2017) is Watson, IBM’s computer system that in 2011 during a live broadcast of Jeopardy! triumphed over two of the trivia show’s most successful contestants. This could only have been achieved with AI fusing language understanding, information retrieval, knowledge processing, speech synthesis and more.

Applying these principles of AI to the law may not be that far-fetched. Even in 1988, Professor Susskind had developed the world’s first commercial legal AI system, known as Latent Damage System, which advised on the law of limitation. The Latent Damage System was successful, given that it reduced research time from hours to minutes. Despite the success of such a system over 30 years ago, the issue remained that it was costly to build and maintain. This made it unappealing to firms which would have sacrificed hourly matter-based billing and instead incur expensive overheads to maintain the AI behind the system.

However, Professor Susskind notes that the legal world has moved on since those days.

For one thing, clients are expecting “more for less”. Professor Susskind draws from his empirical research which indicated that General Counsel were required to reduce their legal budgets by 30 to 50%, even though the compliance work has increased substantially. In a world where there is a competitive market for legal services, practitioners have to consider what they can offer, including reviewing whether the traditional model of time-based billing is the best model.

Another potential trigger to bring on more AI in the law is the ever-increasing workload on decision makers. In his address at the ABA conference, Professor Susskind referred to some mind boggling statistics, where in Brazil there is a backlog of almost 80 million lawsuits waiting for a final and binding decision, amounting to one outstanding lawsuit for each 2.6 Brazilians. This is despite Brazil spending almost 2% of its Gross Domestic Product with the Judiciary Branch, which is more than any other country in the world. Australia is thankfully not sharing the Brazilian experience but it ought to be a collective goal of the profession to avoid descending to such a diabolical situation. Furthermore, given large populous countries in the Asian Pacific region, including countries with some hallmarks of common law legal systems like in India, Brazil may already not be alone. If “throwing money” at the situation does not ameliorate the backlog, then perhaps Professor Susskind’s idea of AI decision making is not that disruptive given that it could accelerate the resolution of disputes.

What future is there for the bar then? If AI is the way, then is in-person advocacy and the services currently offered by barristers doomed to slide off into irrelevance?

Professor Susskind admits (he stresses that being legally trained means that he can take such a position) that as machines become increasingly capable, they will eat into lawyers’ jobs. This threat is more real for the next generation of practitioners, when the concept of being a lawyer may be radically different from now. Instead of practising law, those lawyers may be building the machines that practise law.

For the current bar, the threat may not be imminent but perhaps the redeployment of skills goes beyond being aware when one is muted during a virtual court room appearance. Ultimately, Professor Susskind makes the point that technology will remain and continue to develop. Therefore, unless retirement is imminent, all of us are still tomorrow’s barrister and that makes thinking about the modernisation of legal practice part of our evolution.

3-D images of buildings generated by computers are no longer mere abstractions, but are realistic representations of the actual design. Their use in precontractual promotional materials, while informative to prospective buyers, can present legal risks to sellers if the image is false as to the final design.

Introduction

Can an artist’s impression, namely a computer generated render (3-D design drawing producing a life-like image for the promotion of “off the plan” sales by developers) qualify as misleading or deceptive conduct and/or misrepresentation, if the render misleads as to the final design?

This question was answered in the affirmative in the single judge decision of Anastassiou J in Ripani v Century Legend Pty Ltd [i] in the Federal Court of Australia (hereinafter referred to as Ripani).

A brief outline of Ripani’s case is that Mr and Mrs Ripani paid close to $10 million dollars for an apartment “off the plan”. After entering the contract they were informed the design contained in a promotional render of the apartment they were purchasing, and which was shown to them prior to the contract, was false and not the final design. The particular design concept or feature in the render which the Ripanis especially wanted and relied upon in entering the contract was an uninterrupted free span opening along the entire length between the living areas and the terrace (see Fig 1 below and Annexure 1 in para 5 of the judgment in Ripani).

Fig 1

The Ripanis, upon being informed after the contract that the finished design opening between the living area and terrace would only be a maximum of 3-4 metres, sought successfully rescission of the contract on the grounds of misleading or deceptive conduct and equitable misrepresentation.

[At the time of writing an appeal to the Full Court of the Federal Court is awaiting hearing]

Where the salient features highlighted in Ripani are present, then a false promotional render used to induce pre-construction sales can found an action for misleading or deceptive conduct under the Australian Consumer Law (ACL) and/or equitable misrepresentation. These salient features, which, if present, establish misleading or deceptive conduct are discussed below.

Salient Features

Render: Representational or Abstract

A render, as described earlier, is a 3-D computer generated design drawing, producing a life-like image.

A more detailed description was given in Ripani whereby a render was described as a very high resolution image which could be mistaken as a photograph.[ii] (see Fig 1 above).

The realism depicted in a render may be compared with images or paintings that are not intended to be realistic, such as abstract or impressionistic works. As His Honour indicated in Ripani these latter images ‘do not describe literally the subject portrayed in the painting, but rather grapple with its meaning at another, ethereal level’[iii].

Prior to computer generated graphics, an artist’s impression of a future building was often an abstracted ideal, providing the character for the ultimate design, but was far from depicting a literal image of the finished building and surrounds.

There was thus a significant difference between these abstract images and a computer generated render.

The inherent intent of a 3-D graphic design render used to promote and induce “off the plan” sales, is to show the prospective buyer the design of the finished building and only lacking exact dimensions necessary for a working plan.

Consequently, a 3-D graphic design render is a realistic representation which may be misleading or deceptive (misrepresentation) if it falsely depicts the finished design.

S4 ACL – Misrepresentation as to Future Matter

A promotional render used as a selling tool for a yet to be constructed building is a representation with respect to a future matter for the purpose of s4 of the ACL. Assuming such a promotional render misrepresents the final design, a threshold issue under s4(1) is whether the person (developer) did not have reasonable grounds for making that representation. If the evidence discloses that there were no reasonable grounds for making the representation, then the representation is statutorily deemed to be misleading (s4(1) ACL).

There is no corollary to this; namely, that if the developer did have reasonable grounds for making the representation, that automatically means the representation is not misleading or deceptive. To the contrary, s4(4) of the ACL specifically states that no implication is to be drawn that a representation as to a future matter is not misleading merely from the fact that the person had reasonable grounds for making the representation.

Consequently, a representation (render) that is misleading as to the final design, can form the basis of an action for misleading or deceptive conduct even if at the time the developer had reasonable grounds for believing that it represented the final design. This is supported by established principle on the statutory interpretation of misleading or deceptive conduct whereby intent to mislead or deceive is not a necessary element.[iv] Accordingly, innocent misrepresentation can be misleading or deceptive conduct under the ACL.

S18 ACL – Misleading or Deceptive Conduct

Assuming the threshold issue under s4(1) ACL discloses that the representor (developer) had reasonable grounds for believing the promotional render to be a true indication of the final design, this does not relieve the representor from the consequences of an innocent misrepresentation and misleading or deceptive conduct.

Section 18 of the ACL and its previous equivalent, s52 of the Trade Practices Act 1974, have been exhaustively analysed in precedent[v]. As stated above, an innocent misrepresentation of fact that is misleading or is likely to mislead, can breach s18 of the ACL. Furthermore, if a misrepresentation in a render has induced the buyer into the contract, then not only would statutory remedies be available for a breach of s18 of the ACL, but also remedies for innocent misrepresentation (rescission of the contract).[vi]

In Ripani the remedy of rescission was granted to the buyers of the apartment on both grounds, namely a breach of s18 ACL and for misrepresentation in equity.[vii]

The Effect of Disclaimers and Exclusion clauses

No disclaimer or exclusion clause can limit or exclude provisions of the ACL, including the general prohibition on misleading or deceptive conduct.[viii]

While disclaimers or exclusion clauses have no effect on the ACL can they have the effect of displacing the misrepresentation, such that the conduct is no longer misleading? The answer is yes, but it is a question of fact whether or not the disclaimers or exclusion clauses do displace the misrepresentation.[ix]

In the context of promotional renders used to achieve sales before construction, Ripani’s case indicates that anything less than a specific statement or finished plan clearly informing the prospective buyer that the render is not an image of the finished design and construction, will not be sufficient to displace the misrepresentation.[x] Such a specific denial that the render represents the actual design reduces its worth to mere “puffery”,[xi] or an artist’s ideal rather than an image of the actual building.

The reason behind the requirement of such a specific communication is that the ACL is a statute whose intent is the protection of consumers. As a factual reality, a reasonable buyer would only be disabused of the misrepresentation in a render if they were told or given reasonable notice that the render is not an image of the final construction. This conclusion is supported by the fact that the purpose and intent of the render is to induce sales, and to a reasonable prospective buyer is an image of the final construction.

Standard phrases used as disclaimers or exclusion clauses in the case of renders include: “artist’s impression only”; “indicative only and not to be relied upon”; “subject to change and not to be relied upon”. The intent behind such standard phrases is to absolve the seller from legal responsibility. They are not a statement to the prospective buyer that the render is not the actual design.

Any argument by the seller that such standard phrases are intended to dispel any misrepresentation that the render represents the final design, is to ‘approbate and reprobate’.[xii]In the absence of a specific statement that the render does not represent the finished design, a seller is inducing the buyer to rely on the render (approbate) and then saying in standard disclaimers and exclusion clauses not to rely (reprobate).

Conclusion

The common use of realistic, computer generated 3-D images of future constructions, for the purpose of inducing sales, can found an action for misleading or deceptive conduct where the 3-D image (render) does not represent the final design.

Such a misrepresentation in the render can qualify as misleading or deceptive even if the seller believes that it represents the final design construction (i.e. an innocent misrepresentation).

While the use of disclaimers and exclusion clauses are ineffective against the provisions of the ACL, including misleading or deceptive conduct, they may have the effect of correcting and displacing the misrepresentation in the render. However, such disclaimers or exclusion clauses would only displace and defuse the misrepresentation where they specifically indicate that the render does not represent the final design of the building.

The salient features discussed above and extrapolated from the judgment in Ripani, offer guidance as to the legal responsibilities in the use of computer-generated renders.

Editor’s note:

On 30 November 2022, the FCAFC handed down its decision on the appeal from the decision discussed above in Century Legend Pty Ltd v Ripani [2022] FCAFC 191.

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2022/2022fcafc0191

This decision allowed the appeal and ordered a new trial on restricted issues.

[i] [2022] FCA 242

[ii] Ibid at para 65

[iii] Ibid at para 157

[iv] See the joint judgment of French CJ, Crennan and Kiefel JJ in Google Inc. v Australian Competition and Consumer Commission [2013] HCA 1 at para 9  and the cases therein cited

[v] See the exhaustive compilation of authorities and relevant principles applying to misleading or deceptive conduct, in the judgment of Gordon J in Australian  Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at para 10 [1-7][vi] Ripani v Century Legend Pty Ltd [2022] FCA 242 at para 254

[vii] Ibid at para 237

[viii] Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd 2018 VSC 246 at paras 113-120 and the cases therein cited

[ix]   Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd [2019] FCA 676 at para 33 [1-8] [2019] FCA 676 at para 33 [1-8][x]   Ripani v Century Legend Pty Ltd [2022] FCA 242 at para 89

[xi]  Ibid at para 40

[xii] Ibid at para 50

Dr Norman Katter (LL.B, LL.M, PhD Barrister-at-Law)

Dr Curt Gray, psychiatrist, has written an article for Hearsay directed to the  regrettably common issue of professionals – including barristers – suffering from sleep difficulty.  Statistically, and anecdotally, the inability to sleep well is pervasive in the ranks of the bar.  So much is a function, usually, of court or client deadlines, or expectations of superior advocacy, on the part of the barrister, the instructing solicitor and the court.

Helpfully Dr Gray takes us through the key issues and, importantly, potential solutions.  For those bar members who wish to look further on this issue, the BAQ (private) CPD Library contains a recording of a presentation by Dr Gray, including a PowerPoint, on 22 March 2022. The Vice President Damien O’Brien QC chaired the presentation and gave insight by reference to his own experience with sleep deprivation. The editor attended the illuminating presentation and has slept better ever since, if only on account of better understanding of the issues.

It is sometimes said that sleep, diet, and exercise are the pillars of good health and well-being. Certainly, each has attracted its own comment within the popular press and the general population appears to have a thirst for information about these topics.

The American Academy of Sleep Medicine launched its “Sleep is Good Medicine” campaign in 2022, with a view to improving the sleep literacy of the general population. In trying to better understand sleep problems, Harvard Professor Charles Czeisler published an article that advised that sleep can be affected because of problems with duration, quality, or timing. This is a valuable perspective and a useful way to think about when we may experience sleep problems.

Whilst there are individual differences in sleep needs, it is generally accepted that adults require between seven and nine hours per night. It is not recommend that adults get less than six hours sleep per night, although this may be slightly modified (five hours) for adults older than 65 years.

The most important message is that sleep requirements cannot be sacrificed. The effects of doing so are manifest in almost all human physiological systems, and of course we are prone to be sleepy when sleep deprived, which is a risk for function at work and, for example, when driving. When sleep deprived we are more inclined to feel pain, to be hungry and gain weight, to experience negative mood states such as depression and irritability, to perceive situations negatively, and to struggle with solving complex problems. Clearly these are problematic for the busy time-poor legal professional.

Apart from sleep deprivation, there are a number of broad categories of sleep disorders. Hypersomnia (excessive sleepiness), parasomnias (abnormal events during sleep), and circadian rhythm disorders (sleep timing problems) may all be related to underlying problems and require evaluation. Anyone suffering these conditions should seek review from a GP, in the first instance, and perhaps even see a sleep physician for a more thorough assessment. This is, arguably, especially relevant in the case of hypersomnia, with common conditions or factors such as sleep apnoea and alcohol misuse prominent amongst the causative culprits.

The most common sleep disorder, however, is insomnia, which can be understood as difficulties getting off to sleep, maintaining sleep, or with respect to feeling refreshed upon waking, most of the time over a number of months. This may be associated with sleep deprivation and all its problems, but isn’t always. A negative and maladaptive response that associates the bed with wakefulness, not sleep, and frustration/worry become connected with the bed at bedtime. This can become a chronic pattern which perpetuates wakefulness in bed.

Insomnia can be associated with a range of health and psychosocial problems, and sequelae including absenteeism, decreased work productivity, alcohol and drug misuse, and mental health conditions such as depression. Some research indicates that a history of insomnia predisposes a sufferer to the later development of clinical depression, suggesting that insomnia is a harbinger of later mood problems. Recent research has also shown that treatment of the insomnia can be a preventative strategy regarding this link.

Clearly, an insomnia complaint is therefore not trivial, and whilst it is reasonable to seek help from a suitably qualified psychologist the presence of co-morbid depression may be best addressed, in the first instance, by a GP assessment.

Self-help strategies are of great benefit when it comes to sleep. Australia’s Sleep Health Foundation recommends a number of steps including keeping regular times for going to bed and getting up, relaxing for an hour before going to bed, avoiding going to bed on a full or empty stomach, minimizing sleep disrupting substances such as caffeine and alcohol (it may get you off to sleep but the subsequent sleep is of poor quality and not “deep”), keeping distracting things such as work and device screens out of the bedroom, keeping the bed and bedroom for sleep not entertainment purposes, getting some sunlight and exercise during the day, and avoiding napping. Clock–watching is also a bad habit because it merely increases alertness and anxiety about not getting enough sleep.

If these good habits are unhelpful it may be time to go further with formal engagement with a treatment provider as noted, but if not depressed or lacking the energy to do what you need to throughout the day consider some of the following strategies taken, in slightly modified form, from the American Academy of Sleep Medicine’s Brief Behavioural Treatment for Insomnia Provider Fact Sheet:

• Reduce time in bed to increase sleepiness. Stay up later and reduce total hours in bed. A typical starting point is limiting time in bed to just 6 hours per night. Once time to fall asleep is <30 minutes for 3-4 nights, time in bed can be extended by making bedtime gradually earlier.
• Set a fixed wake up time. Waking up at the same time (or earlier) and ideally exposing oneself to natural light is more important than having a fixed bedtime and helps reset the homeostatic sleep clock. Sleeping late or lingering in bed is deleterious to falling asleep well that night. Do not go to bed just because “it’s bedtime,” but rather when you are sleepy enough to fall asleep quickly, even if that means a short period of sleep that night.
• Reduce time spent awake in bed. Limit time in bed to sleep and intimate activity. Getting into bed for other purposes rehearses being awake in bed and sabotages sleep.
• Get out of bed if not asleep in 20 minutes and return to bed when you become sleepy.

A busy professional life can place enormous psychological pressure upon the practitioner, especially when one is inclined to set high standards for oneself and one’s performance. Sleep disturbance can readily develop and may be a “canary in the coal mine” regarding other underlying problems. Self-help strategies are of great value and there is also a lot of material available online for further assistance, but this is sometimes not enough. It is also critical that sleep and well-being is not sacrificed through self-denial. A robust mechanism to help you look after yourself is available through primary care services, so if the informal and self-help strategies don’t reap the well-being fruit you seek go see your GP.

Dr Curtis Gray – Bio

MB BS, FRANZCP, AFRACMA

Dr Curt Gray is an experienced adult psychiatrist with clinical interests in mood and anxiety disorders, trauma and stressor related disorders, the interplay between medical conditions/injuries and mental health, sleep disorders and their relationship to psychiatry, and medicolegal matters related to those areas. He is a foundation Accredited Member of the Faculties of Consultation-Liaison Psychiatry and Psychiatry of Old Age, and an Accredited Member of the Faculties of Psychotherapy and Adult Psychiatry, of the RANZCP.  He holds appointments to the Mater Health Services Mater in Mind Consultation-Liaison Psychiatry Service, Mental Health Review Tribunal, and the Queensland QComp Medical Assessment Tribunal (MAT) where he is a Deputy Chair. He has served as Assisting Psychiatrist to the Mental Health Court of Queensland. He has been a Senior Staff Specialist in the Departments of Psychiatry at Brisbane’s Prince Charles Hospital, where he was the A/Clinical Director for 12 months, and the Gold Coast Hospital. Additionally, Dr Gray has served a 6 year term as a federal Examiner for the RANZCP Committee for Examinations. He is actively involved in civil medicolegal work at the request of solicitors, insurers, and other entities, where he takes pride in providing an independent, unbiased report that’s primary purpose is to assist a court (or decision maker). He is a member of the executive committee of the Medico-Legal Society of Queensland.

It is often difficult to understand the strength of an action when important documents are held by the other side. This difficulty was recognised some years ago by both the Federal Court and in New South Wales. Division 7.3 of the Federal Court Rules 2011 (Cth) (FCR) and Part 5 of the Uniform Civil Procedure Rules 2005 (NSW) permit a Judge to make an order requiring a prospective Defendant to discover documents to a prospective Plaintiff in advance of an action being commenced.

This process has been adopted in Queensland late last year by the introduction of a new Chapter 7 Part 1 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR(Q))[1].

In order to obtain pre-trial discovery of a document in the Federal Court it is necessary to show a reasonable belief that ‘the prospective Respondent has or is likely to have, or has had, or is likely to have had, in the prospective Respondent’s control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief’. The key words are the existence of documents relating to ‘a right to obtain the relief’. By this, the Courts endeavour to avoid fishing expeditions, at least on a grand scale.

The Regime found in both New South Wales and Queensland is slightly more liberal.  Pursuant to Rule 208D of the UPCR(Q) the Court may order disclosure of documents if it appears to the Court that:

• an Applicant may have a right to relief against a prospective Respondent;

• it is impracticable to start a proceeding against the prospective Respondent without reference to a document;

• there is an objective likelihood that the prospective Respondent has, or is likely to have, possession or control of the documents;

• inspection of the document would assist the Applicant in making the decision to start the proceeding;

• the interests of justice require the order to be made.

The new Queensland rules are similar in design to those found in rule 5.3 of the New South Wales Uniform Civil Procedure Rules. In the NSW context, Courts have relevantly commented that:

• the test to be applied is ‘appears to the Court’ test. This requires that ‘there is reasonable cause to believe that the Applicant has, or may have, the right to obtain relief’[2];

• an application for preliminary discovery does not involve a determination of the merits of the claim, but rather whether it appears to the Court whether a cause of action may exist[3];

• preliminary disclosure only extends to information that is necessary and to give the Applicant sufficient information which it does not already possess[4];

• the question is not whether the Applicant has sufficient information to decide if a cause of action is available against the prospective Respondent, but rather whether the Applicant has sufficient information to start a proceeding. Accordingly, an application for preliminary disclosure may be entitled to disclose what defences are entitled to a Respondent and the strength of those defences[5];

• the documents of which discovery may be ordered are not limited to the entitlement to make a claim but extend to documents going only to the quantum of a claim[6].

The NSW rule requires a prospective Respondent to have made ‘reasonable enquiries’ before an application can be made. This requirement does not appear in the Queensland rule.

Insurance Documents

At least in class actions, but perhaps also in most commercial litigation, knowledge of a defendant’s insurance coverage may materially assist a matter to settle in a mediation. The existence of adequate insurance may be a dominant factor in making any decision whether to start proceedings.  In class actions it may also be necessary to show the court that a proposed settlement is appropriate in terms of the quantum that a defendant can bear or a plaintiff at best is likely to receive.

Insurance documents could be sought at two different times – either as a preliminary document before an action has commenced, or as part of the general discovery.

Perhaps because of the existence of funders (who are always interested in the bottom line), the question of discovery of insurance documents in class actions is more common.  The issue of pre-trial discovery has been particularly contentious in class actions as proposed applicants have sought discovery of a Respondent’s insurance documents in an endeavour to assess the value of the claim that might exist. In Centro Properties Class Action[7], Ryan J commented on the reasons why discovery of an insurance contract is not normally permitted:

The traditional reluctance of Courts to compel the disclosure of details of a party’s insurance cover doubtless owes much to a concern of shielding juries of the temptation to affect redistributive justice (see Rodolfo Lopez Star World Enterprises [1997] FCA 454, per Olney J). However the underlying justification for the traditional view remains. That is, that the existence of policies of insurance held by a party or the details of such policies will not normally be relevant to the proof of any cause of action pleaded against that party.

Certainly, pre-trial discovery of insurance documents is unlikely to be successful in the Federal Court because the documents are unlikely to go to an Applicant’s right to obtain relief.

The issue of discover of insurance documents after an action has been commenced came up for consideration by Gleeson J in Simpson v Thorn Australia[8] (Radio Rentals Class Action). In that decision, the Applicant sought discovery of insurance documents pursuant to the Court’s general power given under s.33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA).

Section 33ZF(1) of the FCA provides as follows:

Section 33ZF  General power of Court to make Orders

General power of Court to make orders

In any proceeding (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.

Gleeson J ordered that the Defendant produce the insurance policies noting that her decision was different to the earlier decision of Ryan J in the Centro Properties Class Action. Her Honour noted that s.33ZF of the FCA was not considered by Ryan J.

In permitting the insurance documents to be disclosed, Her Honour weighed up the factors regarding disclosure and considered that on balance, those favouring disclosure outweighed those against; namely, (a) that there was a real possibility, that if judgment was obtained, the Second Respondent would not be able to meet it; (b) there was an imminent mediation and the insurance documents were likely to be of utility to the Applicant for the purposes of its participation in that mediation; (c) the prospects of a settlement would be reduced if the Applicants’ legal representatives are required to assess any settlement offer without information about the Second Respondent’s insurance position; and (d) any settlement that might be achieved will require Court approval including evidence that the Applicants’ legal representatives are satisfied that the settlement is fair and reasonable and in the interests of Group Members as a whole. One factor that material filed in support of the Application for settlement that is usually require to be addressed is ‘(g) the ability of a Respondent to withstand a greater Judgment’.

This decision has not been without controversy.  More recently, the issue came up for consideration by Beech J in Evans v Davantage Pty Ltd[9]. In that decision, His Honour dismissed an application seeking disclosure of insurance documents. In doing so, the Judge commented on the earlier decision of Gleeson J in the Radio Rentals Class Action.  He distinguished this case in three ways:

• first, His Honour noted that the insurer had already been joined in the proceedings and that it had been conceded by the insurer that there was an arguable case against it for an indemnity (none of which applied in the Evans v Davantage matter);

• second, the Radio Rentals Class Action was decided prior to the High Court handing down its decision in BMW v Brewster[10] which in part dealt with the Court’s power under s 33ZF. In particular, His Honour was concerned that since BMW v Brewster the powers available under s.33ZF(1) of the FCA were limited;

• finally, His Honour commented on the way in which Gleeson J sought to distinguish the Centro Properties Class Action.

In those circumstances, His Honour did not make an order permitting discovery of insurance documents.

Since then, I note Lee J has made an order in Matheson Property Group Pty Ltd v Virgin Australia Holdings Limited[11] requiring Virgin to provide the Applicant with copies of the relevant insurance policies. His Honour gave no reasons for this Order.

It follows that there seems to be some division within the Federal Court surrounding the disclosure of insurance documents.

The question of whether the Supreme Court of Queensland will permit either pre-trial or later discovery of insurance documents is more open.  The new rules certainly give the court power to do so as the existence of insurance may be material to a party deciding whether to commence an action and disclosure may be in the “interests of justice” as it would lead to a settlement.

My feeling is that the Supreme Court of Queensland is likely to take a conversative approach particularly when it comes to insurance documents which are not directly relevant to a proposed cause of action.   In slightly different circumstances an orthodox approach rejecting disclosure of insurance documents was taken by Mullins J in Mallonland Pty Ltd v Advanta Seeds Pty Ltd[12].

Having said that there is an attractive commercial argument that insurance documents should be disclosed.  The Court is given broad power under the new rules.  The existence and extent of insurance will have a significant impact of a party’s decision as whether to commence an action.  Further, in a mediation it provides the parties with a framework as to what a plaintiff can reasonably expect.  The interests of justice are surely best served in circumstance where the parties can negotiate a settlement in full knowledge of what can be realistically achieved.

[1] Rule 208A to 208G, UCPR(Q).

[2] O’Connor v O’Connor [2018] NSWCA 214 at [90].

[3] Athena Investment Holdings v AJ Lucas Group [2013] NSWSC 1837.

[4] Glencore International v Selwyn Mines (2005) FCA 801.

[5] St. George Bank Limited v. Rabo Australia Ltd (2005) 223 ALR 238.

[6] O’Connor v O’Connor (supra) at [90].

[7] Centro Properties Limited v CPT Manager Limited [2009] FCA 695 (Centro Properties Class Action).

[8] Simpson v Thorn Australia Pty Ltd t/as Radio Rentals (No 4) [2019] FCA 1229 (Simpson v Thorn Australia).

[9] Evans v Davantage Pty Ltd (No 2) [2020] FCA 473 (Evans v Davantage).

[10] BMW Australia v Brewster [2019] HCA 45 (BMW v Brewster).

[11] Matheson Property Group Pty Ltd v Virgin Australia Holdings Limited, proceeding no. NSD 346/2022.

[12] Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2019] QSC 250.

Not all pleadings are created equally. Some are so obscure that a judge will read to the end but still not really know what the party’s case is about.

Introduction

Pleadings are a sequence of formal documents, prepared in compliance with certain procedural rules, by which parties to civil litigation explain to each other and to the court what the dispute between them is about.

If they are prepared properly, they will promote the possibility that the resolution of the dispute by the court will occur in a manner which is both –

(a) efficient (because the parties will know what the matters in issue are and will be able to focus their efforts accordingly); and

(b) fair (because the parties will know what is coming at trial and should not be surprised by what happens there).

And although it is but an elaboration on the twin themes of efficiency and fairness, it is by reference to the pleadings that a court determines:

(a) what documents need to be discovered by compulsory process before trial;

(b) what evidence is admissible at trial;

(c) what issues can be argued at the conclusion of the trial;

(d) what matters can be raised on appeal; and

(e) the extent to which the judgment of the court binds the parties, so as to prevent them from relitigating matters in future.

Not all pleadings are created equally. Some are so obscure that a judge will read to the end but still not really know what the party’s case is about. Some are so long and convoluted that a judge will not want to attempt to read to the end. As Martin J observed about an unsatisfactory pleading in Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314 at [29]:

“… Neither the opposing party nor the court should have to wade through a series of unconnected assertions searching for the issues. To paraphrase an illuminating statement made elsewhere judges are not like pigs, hunting for truffles in pleadings.”

And some pleadings are so deficient that a case which could have been prosecuted (or defended) expeditiously to success dies the death of a thousand cuts in interlocutory application hell.

Pleaders who have not done the requisite analysis or who have not read or understood any of the rules of pleading, tend to make the same types of mistakes.

One particularly troublesome area is the manner by which litigants plead something which asserts a causation hypothesis. The purpose of this paper is to develop some thoughts as to the principles which should inform the proper pleading of a causation hypothesis, with a view to assisting pleaders to avoid some common problems.

The golden rules of pleading

The twin golden rules of pleading are:

(a) Your pleading must evidence clarity of legal analysis and

(b) Your pleading must evidence clarity of presentation.

The former occurs when the pleader has a clear understanding of the elements of the cause(s) of action or of the base(s) of defence that are to be expressed in the pleading. The criticality of the performance of the appropriate legal analysis which leads to that understanding cannot be overstated.

The latter occurs when the pleader has taken the time to ensure that, having done the requisite legal analysis, the elements of the cause(s) of action or of the base(s) of defence have been articulated in writing in a way which is both –

(a) lawful (in the sense that the presentation has obeyed the applicable mandatory procedural rules); and

(b) persuasive (in the sense that that the presentation is organised, efficient and comprehensible to the reader).

Let me explain how and why that is so.

Clarity of legal analysis and causation

It is a trite proposition that pleaders must know and understand the substantive law which is applicable to the proper analysis of their client’s rights. Without doing so they cannot hope to be able to plead the material facts which will establish their client’s rights.

Of particular relevance to the subject matter of this paper is the fact that all of the most common causes of action by which a claimant can assert an entitlement to the recovery of a pecuniary remedy involve the assertion of a causation hypothesis. And implicit in the pecuniary remedy which many plaintiffs wish to assert is the establishment of some form of counterfactual.1 The present point is that the substantive law is not necessarily the same either in relation to the nature of what is necessary to establish the requisite causation, or in what type of counterfactual might be relevant or appropriate to a pleading.

It is not the function of this paper to examine the substantive law on these issues in any detail. It will suffice merely to describe the considerations which should be examined by the pleader in each case.

We all know that the law of contract confers an entitlement to recover damages for breach of contract on a contracting party who has been injured by the other contracting party’s breach of contract. The law of contract also tells us that where a party sustains a loss by reason of a breach of contract, that party is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.2 The causation hypothesis is that the breach of contract caused the claimed loss. The measure of damages depends upon establishing the counterfactual that the plaintiff would have been in a better position had the contract been performed according to its terms, and then measuring the extent of the difference between that position and the position in which the plaintiff found itself because of the breach.3

Some complexity might be introduced where the difference between the two positions is that in the former position, the plaintiff would have had a valuable commercial opportunity and in the latter position the plaintiff does not. Then the measure would be the value of the lost opportunity. Where what has been lost is a commercial opportunity of some value (not being a negligible value), the value of that lost opportunity is to be ascertained by reference to hypotheses and possibilities which, though they were speculative and therefore not capable of proof on the balance of probabilities, could be evaluated as a matter of informed estimation.4

In order to be able to plead a case which claims damages for breach of contract, one would have to understand at least those propositions.

But one would also have to identify and consider the applicability to the circumstances under consideration of those aspects of the substantive law which inform the determination of causation and measure of damages in contract, including foreseeability and remoteness.

Sometimes statute law will be relevant to a contract case. Take the case of breach of a contract which imposed a duty on party “A” to exercise reasonable care in the respect of the protection of party “B” from harm. In such a case it would be necessary to consider the impact of the Civil Liability Act 2003 (Qld) on the cause of action, that statute containing important provisions concerning causation, foreseeability, and onus of proof.5

Similarly, the law of tort confers an entitlement to recover damages on a person harmed by another person’s tort. The law of tort tells us that the injured party is entitled to be compensated by an award against the tortfeasor in a sum which, so far as money can do so, will put that party in the same position as he or she would have been in if the tort had not been committed.6 The causation hypothesis is that the tortfeasor’s conduct caused the loss. The measure of damages depends on identifying the extent to which the plaintiff is worse off by reason of the tort, which turns at least as a matter of logic on a comparison between a counterfactual (namely the position in which the plaintiff would have been had the tort not occurred) and the factual (the position in which the plaintiff found itself because of the tort).7 Notably, the Civil Liability Act 2003 (Qld) often applies in relation to tort claims.

A pleading is the pleader’s first chance to demonstrate to the opponent and to the judge that the pleader’s case has merit. Care should be taken to adopt techniques suited to that goal.

One of the most common causes of action in modern commercial litigation is the cause of action under s 236 of the Australian Consumer Law to recover loss or damage suffered because of another person’s misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law. The causation hypothesis is that the claimant suffered loss or damage “because of” the wrongdoer’s contravening conduct. The measure of damages depends on identifying the extent to which the consumer is worse off because of the contravening conduct, which turns, at least as a matter of logic, on a comparison between a counterfactual (namely the position in which the consumer would have been had the contravening conduct not occurred) and the factual (the position in which the consumer found itself because of the contravening conduct).8

Of course, the considerations which I have just mentioned are as significant for a defendant as they are for a plaintiff. In the first place is that so because the defendant will put itself in the position of being able to analyse the plaintiff’s case properly and so to determine where weaknesses may be found. But, importantly, it may be that the defendant itself must assert a causation hypothesis, and it might be a causation hypothesis which asserts a particular counterfactual.

For an important example of such a case, regard should be had to the High Court decision of Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715.

That case concerned an agency agreement under which either party could terminate by giving 30 days’ written notice on or after the “expiry date”, expressed in terms that “the agreement remains valid until 30th June, 2008 and will be automatically renewed for further terms every two years unless terminated as per the Termination clauses.”

The respondent misled the appellant into signing a letter of termination, the appellant’s expectation being that the termination was just an administrative act and that the agency arrangement would nevertheless continue.

The appellant sued for damages under s 82 of the Trade Practices Act, each party proceeding on the basis that, if the respondent were found to have engaged in misleading or deceptive conduct contrary to s 52, the amount recoverable depended on the commissions that would have been payable had the termination letter not been signed in reliance on the respondent’s wrongful conduct.

The appellant contended that, but for being tricked into signing the termination letter, the agency agreement would have continued indefinitely or at least until June 2010 when the respondent terminated all of its other agency agreements after public disclosure of bribery allegations. The respondent countered that it would have terminated the agency agreement lawfully by giving notice expiring on 30 June 2008.

Both sides, in other words, were advancing competing counterfactual propositions.

The two judgments in the case (on the one hand that of Bell, Keane and Nettle JJ, and on the other, that of Gageler and Edelman JJ) bear careful examination. They contain interesting examinations of the legal onus of proving damage and of how an evidential onus can shift onto someone not bearing the legal onus in particular circumstances.

There had been a suggestion at first instance that to allow the respondent to rely on such a hypothetical counterfactual was precluded as a matter of law, because to allow it to be advanced would be to allow the respondent to take advantage of its fraud.  Bell, Keane and Nettle JJ opined (at [27]):

“Permitting a fraudster to plead and prove a lawful counterfactual which, but for its fraud, the fraudster would have pursued, is not in any sense to permit the fraudster to take advantage of its fraud. … it is to do no more than to limit the amount recoverable by the victim to the amount of loss or damage which the victim is shown to have suffered “by” the contravening conduct within the meaning of s 82 of the TPA. That accords with the general principle at common law that a wrongdoer is not required to compensate a victim for loss which the wrongdoer does not cause, even where the cause of action is the tort of deceit.”

Notably, their Honours immediately followed that observation with the observation that that possibility might be more theoretical than real, when they stated that established principle and authority supported the view:

“… in circumstances where a party has resorted to fraud to achieve an objective which it was open to achieve by lawful means, it becomes more difficult, if not impossible, to draw an inference that, but for the fraud, that party would have chosen to proceed by lawful means …”.

The case was resolved by Bell, Keane and Nettle JJ on the basis that the respondent had not established that there was a real (not negligible) possibility that the respondent would have terminated the agency agreement by lawful means at any time before June 2010 and by Gageler and Edelman JJ on the basis that the respondent failed at trial to discharge the evidentiary onus imposed upon it by the way it had joined issue with the appellant on the pleadings, on the question of causation of the loss they claimed to have suffered.

I will come back to the signifance of this case under the consideration to which I now turn, namely the relationship between the second of the twin golden rules of pleading to the question of pleading causation.

Clarity of presentation and causation

I have earlier identified that my conception of a pleading which meets these requirements is a pleading which is both –

(a) lawful (in the sense that the presentation has obeyed the applicable mandatory procedural rules); and

(b) persuasive (in the sense that that the presentation is organized, efficient and comprehensible to the reader).

Obeying the applicable mandatory procedural rules

Let us first consider the implications of the first aspect, namely obedience to the applicable mandatory procedural rules.

Rule 149 of the Uniform Civil Procedure Rules requires plaintiffs to set out a statement of all the material facts on which they rely, including by stating specifically any matter that if not stated specifically might take another party by surprise. Rules 150 and 155 identify matters which must be specifically pleaded, including concerning damages. Rule 157 requires the inclusion of particulars necessary to define the issues for, and prevent surprise at, the trial; and enable the opposite party to plead; and support a matter specifically pleaded under rule 150.

My decision in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7) [2019] QSC 241 draws into one place a number of the leading authorities concerning the implications of such rules on pleading causation.  The critical proposition was advanced in these terms (at [21]):

“The result is that where a party’s causation hypothesis depends on establishing a particular counterfactual scenario to establish the alleged causal link between breaches of contract and the loss which it is said would have eventuated if the conduct which the party impugns had not occurred, that counterfactual scenario must be pleaded and particularised in accordance with the rules of pleading. This should be done with the degree of clarity referred to in Oztech Pty Ltd v Public Trustee of Queensland. The pleading so framed must at least arguably establish a reasonable inference that the impugned conduct and the claimed loss stand to each other in the relation of cause and effect.”

In the subsequent High Court decision of Berry v CCL Secure Pty Ltd, Gageler and Edelman JJ (at [72]) made similar observations in the following passage:

“The function of pleadings is to state with sufficient clarity the case that must be met” and thereby to “ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and … to define the issues for decision”. A plaintiff should be expected to plead all material facts on which the plaintiff relies to constitute the statutory cause of action, including any counterfactual on which that plaintiff relies to establish the requisite causal link between identified loss or damage and identified misleading or deceptive conduct. In the same way, a defendant resisting the statutory action should be expected to plead any different counterfactual on which that party might rely to deny the causal link. Unless and to the extent that the parties choose to depart from the pleadings in the way they go on to conduct the trial, choice between the competing pleaded counterfactuals on the balance of probabilities should then exhaust the fact-finding that is required to be undertaken by the court on the issue of causation.”

One should not get too carried away by the presently fashionable use of the terminology of “counterfactual”. I say presently fashionable because an Austlii search reveals the earliest use of the term in Australian case law as occurring in 1999. An ICLR search in British case law suggests the earliest use of the term as occurring in 2002. The truth is that not every pleading of a causation hypothesis requires a pleader to rely on the explicit articulation of a counterfactual.  For example:

• If the defendant is alleged to have hit the plaintiff with a car, breaking the plaintiff’s leg, and the plaintiff’s case was limited to claiming medical expenses and loss of amenities, one would not expect to see any pleading of a counterfactual. Probably a short assertion of “By reason of the defendant’s negligence the plaintiff has suffered loss and damage in that xxx and yyy” would do. Of course, there are other provisions governing how personal injuries cases must be pleaded: see for example r 547 articulating the requirements for the statement of loss and damage.

• On the other hand, if in the same circumstances, the plaintiff’s case was that the plaintiff was a rising movie star who at the time of the accident walking towards an audition for the role of the star of the latest blockbuster, and the plaintiff’s advanced a case for recovery of damages measured by reference to the amount which would have been earned if the plaintiff had won the role, one would expect to see a particular and carefully pleaded counterfactual. Probably the pleading would assert that the injury caused them to lose the valuable opportunity of starring in the particular role and seek to have the opportunity valued in accordance with the possibilities and probabilities of the opportunity occurring.

• Similarly, if the plaintiff alleged it was misled into investing $1 million into the defendant’s fraudulent pyramid scheme, and claimed damages measured by the lost million together with statutory interest, one would not expect to see any pleading of a counterfactual.

• On the other hand, if in the same circumstances, the plaintiff said that, had it not been tricked into the pyramid scheme, it would have invested the money into the development of what has turned out to be an immensely profitable diamond mine, and claims damages measured by reference to that outcome, one one would expect to see a particular and carefully pleaded counterfactual.

In misleading and deceptive conduct cases it is common to distinguish between “no transaction” cases and “altered transaction” cases. In the former case, the counterfactual is “but for the contravening conduct the plaintiff would not have entered into the transaction”. That counterfactual is simple to plead. The measure of loss is also usually simple and is quite often a variation on a “worse off because spent money and lost it” theme. In the latter case, the counterfactual is “but for the contravening conduct the plaintiff would have entered into a different transaction” whether the same transaction with changes, or a different transaction entirely. In that case the counterfactual requires greater attention.

What is necessary in all cases, however, is that, having done the requisite analysis and identified the pecuniary recovery which is sought to be made, the pleader articulates a causation hypothesis pleading the material facts which establish the causal link between the impugned conduct and the loss in such a way as will match the type of case the pleader is seeking to advance.

What are some common issues?

Pleaders who have not done the requisite analysis or who have not read or understood any of the rules of pleading, tend to make the same types of mistakes.

First, a pleading which asserts something like this

“In consequence of [the impugned conduct], the plaintiff has suffered loss in the sum of $xxx,”

where the amount claimed has hidden within in it some form of complex counterfactual and detailed consideration which the pleader hasn’t bothered either to think about or articulate.

Such a pleading is defective because it pleads a rolled up conclusion that conduct caused loss, without pleading the material facts which establish the link between the conduct and loss. Such a pleading may also be defective for failure to comply with the provisions of the UCPR concerning specific pleading of damages.

Second, a disorganised pleading which narrates a story in a prolix way and the ends with something like “in the premises, the plaintiff has suffered loss”. Usually such a pleading has the additional flaw that the prolix narrative is merely a recitation of evidence rather than an attempt at pleading material facts which establish the elements of the cause of action concerned. Such a pleading confronted Jackson J in Mio Art Pty Ltd v Macequest Pty Ltd & Ors [2013] QSC 211. The plaintiff’s case was that it had suffered loss arising from breach of various contractual, statutory and fiduciary duties which arose in a complicated property development transaction. The pleading alleged in narrative style factual matters in chronological order and that paragraph [261] was in this form “By reason of the matters pleaded in paragraphs [1] to [260] KHD has suffered loss and damage”. Unsurprisingly his Honour found that to be unsatisfactory.

Far better to “translate” the report into a proper pleading of material facts set out at a sufficiently high level of generality as will admit some variation to the expert opinion.

Third, the pleader that seeks to avoid having to confront the difficult task of meeting the requirements of orthodoxy by suggesting that it becomes unnecessary in modern case- managed litigation where parties will by direction be required to deliver their lay and expert evidence in staged manner before trial, usually in such a way that the Court will not permit further evidence without leave. I addressed some of the implications of the modern case managed litigation in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4) [2019] QSC 199. In that case, I observed (at [15]):

“It is axiomatic that if case management orders have required the parties to disclose to their opponents the way they intend to prove their respective pleaded cases, that course was required because the Court determined that it would serve to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. But recitation of that sort of motherhood statement is not a sufficient articulation of the purpose of requiring such a course. The underlying purpose is to avoid surprise to the other party and to allow the issues to be narrowed, albeit at a more granular level than is achieved by the delivery of pleadings. It is to allow any eventual trial to proceed in a more efficient manner than it might otherwise have proceeded. In order to fulfil that purpose, it must follow that there is some degree to which the parties are confined to the manner of proving their case which they have flagged by the material which they have delivered in compliance with such case management orders. That is why such orders conventionally also specify that the parties may not deliver evidence outside the constraints of the orders concerned, except with leave of the Court. The extent of confinement which must be regarded as having been achieved by such orders and the attitude which must be taken to applications for leave will be very much a question of fact and degree, and will vary from case to case. The considerations which would be relevant to the exercise of a discretion to permit evidence to be adduced outside the constraints imposed by the case management orders of the type under discussion are similar to those applicable to pleading amendment: see Sanrus No. 2at [12] to [15].”

Whilst it must be acknowledged that any deficiency in pleading causation in an orthodox manner may be ameliorated to some extent by the fact that the pleading was delivered in the context of a proceeding which is case managed in that way, I pointed out in Sanrus No 7 (at [32] to [34]) that the extent of that amelioration is not complete for at least these three reasons:

“First, the evidential material which each side provides to their opponent consequent upon such directions is proposed evidence. It is not a pleading. It does not actually bind the party providing it in the same way as does a pleading. If a pleaded allegation is admitted on the pleadings, no evidence is required on the admitted fact and the admission may not be withdrawn without leave. On the other hand, a plaintiff’s witness summary (or expert report) and a defendant’s witness summary (or expert report) delivered before trial might well suggest that the witnesses agree on a fact or on an opinion, but that does not bind either party in the same way as a pleaded admission. Even if the proposed evidence is admitted into evidence at the trial, either party can still ask the trier of fact not to accept one aspect of the evidence it adduces at trial, or ask the trier of fact to prefer one aspect of the evidence it adduces at trial over another.

A second and related point is that, for one reason or another, the proposed evidence may not actually find its way into evidence at the trial. A party may choose not to call the witness or to tender the expert report. Or, the proposed evidence might be held out because of successful objections as to its admissibility.

Third, in any event the extent of the clarity which a party obtains concerning the fact and nature of any unpleaded counterfactual propositions in an opposing party’s pleading would necessarily derive from their own analyses of the opposing party’s evidence rather than from the opposing party having committed to a statement in their pleading which defined and confined their case. Pleadings are required so that a party does not have to work out itself what is the opposing party’s case. As the Full Court of the Federal Court said in Oztech Pty Ltd v Public Trustee of Queensland …, the pleading party should ensure that “there be no need for the opposite party to closely scrutinise the pleading in a process of textual construction to determine whether a particular fact is relied upon, or the purpose for which it is alleged”. A fortiori, when a party has left the definition of its case to be divined from its evidence, delivered in a case which has been managed in the way I have described.”

Fourth, it is not uncommon to find a lazy pleader who seeks to meet the requirements of a proper pleading of causation by pleading cross-reference to an expert report. This may seem to be an efficient and convenient way of addressing causation and often such a pleading will escape any complaint either from the opponent or from the Court. But it is technically deficient because it is a plea of evidence rather than material fact. And the pleader must be aware that by taking such a course, any change in the expert opinion will amount to a departure from the pleading. In almost all cases it would be better for a competent pleader to understand the case actually being presented in the expert report, and then to articulate a plea of material facts which makes such a case.

Pleading persuasively (in the sense that the presentation is organised, efficient and comprehensible to the reader)

A pleading is the pleader’s first chance to demonstrate to the opponent and to the judge that the pleader’s case has merit. Care should be taken to adopt techniques suited to that goal.

First, pleaders should try to organise the pleading logically and chronologically. Hopefully they will have done the analytical exercise of identifying the cause or causes of action and the elements thereof, so they should adopt a structure consistent with that analysis including by the liberal use of headings which differentiate between the causes of action which they assert and within each cause of action which identify the relevant elements in some way.

Second, pleaders should use but not overuse defined terms. In this regard:

(a) They should try to choose obvious and neutral definitions so that both parties can adopt them. Defining the defendant as “the wrongdoer” is unlikely to be a helpful choice.

(b) Pleaders should avoid multiple use of acronyms because that is often very confusing for a judge.

(c) If particular contractual instruments are relevant to the case, pleaders should consider using some or all of the defined terms in the contractual instruments so as to promote consistency.

(d) There isn’t any point in defining a term which is only used once or twice in the pleading.

Third, where a case involves a multiplicity of allegations of the same type or which fall into groups, give careful attention to the best way to present detail in a way which is intelligible and useful. In particular, pleaders should give consideration to the use of techniques which permit distracting detail to be removed from the body of the pleading and to be put in a schedule or schedules. The technique adopted in building and construction cases of using a Scott Schedule is very useful in such cases and is capable of being modified and used in other cases.

Fourth, pleaders should be conscious of the fact that the pleading is the foundation for the development of the case as a whole and their case in particular. If, for example, a pleader is for the defendant and the plaintiff’s pleading is a shambles, the pleader may want to give consideration to starting the defence not simply by responding paragraph by paragraph to the shambles, but rather pleading an organised collection of material facts first. Then when the pleader gets to the responsive part of the pleading he or she can plead by cross- reference back to something which makes sense.

Fifth, pleaders should plead tactically. Thus:

• Pleaders should be conscious of the fact that they want to formulate propositions which are capable of being admitted and which must be responded to in a proper way. Huge convoluted paragraphs with many subparagraphs and sub subparagraphs will not achieve that goal.
• Pleaders should be conscious that they may have to amend as things develop. That is a good reason not to plead by cross-reference to an early version of an expert report. Far better to “translate” the report into a proper pleading of material facts set out at a sufficiently high level of generality as will admit some variation to the expert opinion.
• But a related point is that if pleaders plead at too high a level of generality they will advance an embarrassing pleading as their opponents will legitimately complain that they cannot sufficiently understand the case they have to meet, and they are unfairly being asked to respond to what can properly be described as a movable feast. On the other hand, pleading with too high a level of specificity will likely descend into pleading evidence not material facts, and will have the potential downside of greatly confining the case to a particular mode of proving the material facts.

Finally, pleaders should be conscious of the fact that the document is a literary work which a judge will read. As with many things, style counts. They should have a consistent paragraph numbering and headings scheme. They should employ consistent use of font and indentations. They should try to use proper grammar and spelling.

[1] The Macquarie Dictionary defines the noun “counterfactual” as “a conditional statement, the first clause of which expresses something contrary to fact, as: if I had known.”

[2] Robsinson v Harman (1848) 1 Exch 850 at 855, approved in Commonwealth of Australia v Amann Aviation Pty Ltd   (1991) 174 CLR 64 per Mason CJ and Dawson J at 80, Brennan J at 99, Deane J at 117, Toohey J  at 134, Gaudron J at 148-9 and McHugh J at 161.

[3] Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at 286; Clark v Macourt (2013) 253 CLR 1 per Hayne J at 6 and 8, Crennan and Bell JJ at 11-12, Gageler J at 19 and Keane J at 30-32.

[4] Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715 at [32] per Bell, Keane and Nettle JJ, citing relevant passages from Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 and Sellars v Adelaide Petroleum NL (1994) 179 CLR 332.

[5] ss 9, 10, 11 and 12.

[6] Haines v Bendall  (1991) 172 CLR 60 at 63 per Mason CJ, Dawson, Toohey and Gaudron JJ and Amaca Pty Ltd v Latz (2018) 264 CLR 505 per Kiefel CJ and Keane J at [41] and Bell, Gageler, Nettle, Gordon and Edelman JJ at [87].

[7] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 639.

[8] Sellars v Adelaide Petroleum NL (1994) 179 CLR 322 per Mason CJ and Dawson, Toohey and Gaudron JJ at 355 and Brennan J at 368; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 per Gibbs CJ at 6-7 and Mason, Wilson and Dawson JJ at 12.

The Honourable Chief Justice Helen Bowskill presented the below paper to the Queensland Magistrates State Conference, on Thursday 26 May 2022 at The Pullman Hotel Conference Centre. The article has been re-printed in Hearsay with her Honour’s permission.

Good morning, friends and colleagues. I acknowledge all of you, and also acknowledge the traditional owners of this land and pay my respects to their Elders, those who have spoken for this land in the past and who do so today.

Thank you to Chief Magistrate Terry Gardiner for inviting me to speak to you today, on the topic of sentencing adults. It is a pleasure once again to join you at your annual conference, all the more so because we are doing so in person this year, rather than through an impersonal screen.

Sentencing is the bread and butter of our collective work as judicial officers.

But it is a complex task, involving the so-called “instinctive synthesis” of many different and sometimes conflicting features in any given case, to arrive at a single result.1 It can be an intellectually exhausting task, as we listen to the submissions for both sides and then undertake the necessary analysis to arrive at a decision and articulate reasons for it on the spot. There is at times the added stressor of public glare, and subsequent media criticism, the negative impact of which is compounded when the criticism is, at best, ill-informed or, at worst, just plain wrong.

So, as far as I’m concerned, the more help we can get on this topic the better. A few years ago, Judge Paul Smith presented a paper to your annual conference on Sentencing,2 which I commend to you. May I also commend to you a paper delivered last year by Judge Glen Cash QC, entitled ‘Customary Law and the Recognition of Systemic Disadvantage in the Sentencing of First Nations Persons’.3 What I propose to do is go through some of the key sentencing decisions in the last twelve months and then say something about how to approach sentencing when there are no comparable decisions available to assist you. Hopefully there will be time for questions or comments at the end.

Natural justice

As with everything we do, natural justice is a fundamental requirement of sentencing. In broad terms, the requirements of natural justice are the hearing rule and the bias rule.4

The importance of the hearing rule in sentencing was emphasised by Keane JA, then of the Court of Appeal, in R v Cunningham [2005] QCA 321 where his Honour said (at p 5):

“To impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a court is required to follow. As Lord Fraser of Tullybelton, in a passage approved by this Court in Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40; [2003] QCA 249 at 49, said in In re Hamilton; In re Forrest [1981] AC 1038 at 1045:

‘One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication.

It has been recognised in previous decisions of this Court that the principle described by Lord Fraser is as applicable to sentencing as it is to any other judicial proceeding. See, for example, R v Moodie [1999] QCA 125; CA No 439 of 1998, 14 April 1999.”

The issue in R v Cunningham was the imposition of a driver licence disqualification, in addition to the sentence otherwise imposed. The Crown prosecutor had made no submission on that subject, and the sentencing judge gave no indication that he was minded to exercise the discretion vested in him by s 187 of the Penalties and Sentences Act 1992, before doing so. The Court of Appeal held that the sentencing judge had erred in failing to observe the need to afford the offender’s counsel the opportunity to address him in relation to whether a disqualification should be imposed.

More recently, in R v JAB (2020) 4 QR 588; [2020] QCA 124 the Court of Appeal provided the following assistance in relation to how to give effect to this in practical terms:

“[27] A principle of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against that person.5

[28] This principle has been adopted by this Court to set aside sentences imposed without first inviting submissions as to matters such as licence disqualification,6 a later than legislatively provided for parole release date,7 the declaration of a serious violent offence8 or the recording of a conviction where reasons were not given and submissions were not invited before the recording of that conviction.9

[29] That principle does not oblige a sentencing judge to set out each and every alternative available in sentencing a defendant. As Atkinson J observed in R v Robertson:10

‘Counsel who appear before judges on sentences are expected to know the provisions of Queensland’s sentencing law and to make relevant submissions.

Unless the judge is considering imposing a sentence which may be considered unusual or an additional penalty which is unusual, there is no obligation upon a sentencing judge to advise counsel of the sentence that may be imposed and to seek specific submissions on that.’ (footnote omitted)

[30] Whether a sentencing judge’s sentence may be considered unusual or involving an additional penalty will depend upon the circumstances of a particular case. A sentence would not normally be considered unusual or an additional penalty if its content can properly be said to have fallen within the contemplation of the parties, having regard to the issues in dispute at sentence and the submissions made by the parties at that sentence hearing.

[31] As Atkinson J said in R v Robertson in the passage above, unless a judge is considering imposing a sentence which may be considered “unusual or an additional penalty which is unusual”, there is no obligation upon the judge to advise counsel of that possible outcome. The reason why that is so is twofold.

[32] First, as her Honour said, judges make decisions upon the basis that counsel who appear before them know the law that bears directly upon the case at hand. Judges are entitled to act upon the footing that, if a particular order ought to reasonably be within the parties’ contemplation having regard to the circumstances of a case, then the silence of counsel upon that issue can be taken by the judge to be the result of a professional judgment that there was nothing useful for counsel to say about it. Second, judges do not expect, and do not want, counsel to make submissions about orders that are evidently not going to be made and counsel should not waste time making them.

[33] It follows that if a judge is thinking about making an order that, despite appearances, might be made, then the judge is obliged to give the parties a fair opportunity to be heard upon that issue. Otherwise, in accordance with expected practice, the judge’s silence, despite having that course in mind, would mislead counsel into believing that no submissions were necessary.

[34] That being so, the word “unusual”, as used in R v Robertson, should not be misunderstood to be a term of art or as stating a “test” that can be applied. The word was merely an apt adjective to describe an order which the aggrieved party could not reasonably have been expected to have in mind before it was made.

[35] In short, the real issue is whether a judge’s omission to give the parties notice that a particular order might be made has resulted in a failure to afford the parties a reasonable opportunity to be heard.”

In that case, the particular issue was the recording of a conviction for a juvenile offender. The prosecutor had made submissions in relation to the recording of a conviction but, significantly, those submissions did not positively contend for the recording of a conviction; although they expressly acknowledged the impact recording a conviction would have on the young offender’s future employment opportunities. In circumstances where the sentencing judge did not indicate in the course of the hearing that consideration was being given to the recording of a conviction, it was considered unsurprising that defence counsel made no submissions about. That was particularly so having regard to the unusual feature of sentencing juveniles, namely, that the starting position is that no conviction is recorded.

The failure of the sentencing judge to indicate that consideration was being given to recording a conviction, and so to give the offender’s counsel the opportunity to make submissions about it, was a breach of the principle of natural justice.

A recent example, of an appeal from a sentence imposed by this Court being allowed on this ground is Ryan v Queensland Police Service [2021] QDC 206. In that case, the Prosecutor had submitted for a penalty of nine to 12 months imprisonment and that in the circumstances of the case, consideration could be given to an immediate parole release date. The solicitor for the offender had submitted for a penalty of 9 months, with immediate release on parole. The Magistrate sentenced the offender to 18 months, and fixed a parole release date after six months. On the appeal, Judge Coker found that “there was no indication of the fact that the learned Magistrate was minded to consider a penalty significantly greater than that which might have been proposed by the Prosecutor, and that that was not communicated to the legal representatives for the appellant”, and said that was a factor which “looms large in relation to the determination of this matter”. His Honour otherwise concluded that the sentence was manifestly excessive.

In my experience, it is always a good idea to flag to the parties if you have a different view about what the penalty, or the structure of the sentence, ought to be – sometimes the process of doing that can prompt a submission which draws to your attention something you were not aware of, whether a factual matter or a legal matter. And the brief time it takes to do so is well worth avoiding the failure to afford natural justice as a ground of appeal.

Totality

I find that the word “totality” sometimes gets used as a synonym for “the vibe” in sentencing submissions.

As to when the totality principle actually applies, the following summary from the reasons of Fraser JA in R v Wilson [2022] QCA 18 at [26] is a helpful reminder:

“[26] It is necessary next to consider the application of the totality principle. Many judgments of this Court discuss the circumstances in which the totality principle applies: see, for example, R v Beattie; Ex parte A-G (Qld),11  R v Kendrick,12 R v WBK,13 and R  v CCT.14 The relevant circumstances may be summarised as follows:

(a) In Postiglione v R,15 McHugh J stated that the totality principle ‘requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved’.

(b) In Mill v R,16 the High Court held that the totality principle applied also in cases in which an offender is sentenced a long time after the commission of the offence because, during the intervening period, the offender was serving a sentence imposed in another State ‘in respect of an offence of the same nature and committed at about the same time’. In such a case, the correct approach is to ask what would be likely to have been the effective head sentence if the applicant had committed all of such offences in the same jurisdiction and had been sentenced for all such offences at one time.17

(c) In R v Gordon,18 Hunt CJ at CL held that the totality principle applies also when a sentencing judge is imposing a sentence cumulatively upon or overlapping with ‘an existing custodial sentence’. …”

Of course, there may be other circumstances which, although not falling within the totality principle per se, should be taken into account by the sentencing court as part of the obligation to “punish the offender to an extent or in a way that is just in all the circumstances”.

Pre-Sentence Custody

As you would be aware, in 2020 s 159A(1) of the Penalties and Sentences Act 1992 was amended.  The section now provides:

“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.” [underlining added]

Prior to its amendment, the section included the words “and for no other reason” after the underlined part.19

I had reason to consider the effect of this amendment in a decision called R v Whitely [2021] QSC 154, and held that the broad discretion now conferred by s 159A(1) extends to a power to formally declare time served even where that time is served under a previously imposed sentence. Justice Henry, in R v Stewart [2021] QSC 187, also considered the point, reaching the same conclusion (see at [28]-[43]).

The Court of Appeal has confirmed that once s 159A(1) is engaged – because an offender is being sentenced to a term of imprisonment for an offence for which he or she has been held in custody – s 159A empowers the sentencing court to make a declaration in the prisoner’s favour in relation to time for which the prisoner was on remand whilst serving a previous sentence: see R v Wilson [2022] QCA 18 at [18] per Fraser JA and R v O’Connor [2022] QCA 65 at p 4 per McMurdo JA.

Attention must also be paid to s 159A(3), (3A) and (3B), which provide:

“(3) If an offender was held in custody in circumstances to which subsection (1) applies, and the court has not made an order mentioned in subsection (3A), the sentencing court must, as part of the sentencing order—

(a) state the dates between which the offender was held in presentence custody; and

(b) calculate the time that the offender was held in presentence custody; and

(c) declare the time calculated under paragraph (b) to be imprisonment already served under the sentence.

(3A)     Subsection (3B) applies if—

(a) an offender was held in custody in circumstances to which subsection (1) applies (presentence custody); and

(b) the sentencing court orders that the time, or part of the time, the offender was held in custody is not to be taken to be imprisonment already served under the sentence.

(3B)     The sentencing court must, as part of the sentencing order—

(a) state the dates between which the offender was held in presentence custody; and

(b) calculate the time that the offender was held in presentence custody; and

(c) declare the part of the time that is taken to be imprisonment already served under the sentence or declare that no time is taken to be imprisonment already served under the sentence.”

Importantly, there is a discretion to be exercised under s 159A(1).

As the Court of Appeal has also confirmed, there is no preferred or prima facie position in relation to how pre-sentence custody is to be dealt with – that is, s 159A(1) is not to be read as a requirement to take such custody into account unless persuaded otherwise. As Fraser JA explained in R v Wilson [2022] QCA 18 at [32]:

“If s 159A(1) were read in isolation from the other provisions of that section, it would be arguable that pre-sentence custody, whether on remand for the subject offences only or whether on remand for those offences and also by way of imprisonment under a previous sentence, is to be treated as imprisonment already served under the sentence unless some good reason is shown why that should not be so. Having regard to the context supplied by the other provisions of the section [referring to s 159A(3), (3A) and (3B)], the better construction is that there is no preferred or prima facie position. The same statutory language is used to authorise the making of each form of declaration and the section does not express any guidance for the way in which the discretion to make a declaration should be exercised. In these circumstances, the amendment seems designed to increase the flexibility allowed to sentencing courts to structure sentences in ways that facilitate the imposition of a just penalty in conformity with applicable statutory provisions and common law sentencing principles that are consistent with those provisions.” [underlining added]

In R v Braeckmans [2022] QCA 25 the Court of Appeal dealt with an issue not addressed in Whitely, which is the interrelationship between s 159A and the requirement that in a case to which s 156A(2) applies, a sentence of imprisonment must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve. In that case, McMurdo JA (with whom Sofronoff P and Kelly J agreed) said:

“[30] Section 156A leaves the sentencing court with no discretion: in circumstances which engage the section, the sentencing court must impose a cumulative sentence. On the other hand, s 159A provides a discretion to the sentencing court. Where s 159A is engaged, the sentencing court may declare the whole of the time on remand for the subject offence as time spent in custody in serving the sentence, or it may declare some or none of it as time served. Because s 159A does not mandate an allowance of pre-sentence custody, but instead leaves that to the sentencing court’s discretion, the two sections can be construed so that they give effect to harmonious goals.20 The discretionary power under s 159A is an element of the court’s sentencing power, so that it must be exercised consistently with   the   requirements   of   the   Act,   including   the    specific requirement of s 156A. Neither the terms of s 159A nor the explanatory note provide any indication of an intention that the amendment to s 159A was to allow sentencing courts to qualify the mandatory terms of s 156A.

[31] Consequently, in a case such as the present one, a sentencing judge must exercise the power under s 159A to avoid the consequence that a cumulative term of imprisonment will become in part a concurrent term. A declaration of pre-sentence custody in the prisoner’s favour should not have been made in the present case. Instead it should have been declared, pursuant to s 159A(3B)(c), that no time is taken to be imprisonment already served.”

The position was summarised by McMurdo JA in R v O’Connor [2022] QCA 65 at p 4:

“Once s 159A is engaged, the sentencing court is obliged to consider whether to declare all of the time as imprisonment already served, or that all or part of the time is not to be taken to be imprisonment already served. There is no preferred or prima facie position that a prisoner will have the benefit of the whole of the period, unless the court is persuaded to the contrary. If a cumulative sentence is being imposed so that it will commence from a future date, the court cannot declare that any of that sentence has already been served.”

In practical terms, some of the considerations that may be relevant, when you are considering whether to declare time the offender has already served in custody, because they were held on remand simultaneously with a term of imprisonment imposed earlier, might include:

(a) The circumstances in which the offender came to be sentenced for the later offences – an example, given by Henry J in R v Stewart [2021] QSC 187 at [36] is:

“… an offender who, in a short burst of offending, commits 12 offences might be arrested and sentenced for 10 of them. Subsequently, while serving a term of imprisonment for those 10 offences, the police may belatedly charge the offender with a further two offences that were committed during the same period of offending and were well known to investigating police but were not charged earlier because of a bureaucratic delay or oversight. If those two additional offences do not materially change the overall criminality for which the offender was previously sentenced, it could scarcely be regarded as an unreasonable result that the period of imprisonment already served by the time the final two offences are the subject of a sentence, be declared to be time already served in respect of the sentence being imposed.”

(b) That may be contrasted with the circumstance where an offender is sentenced to a term of imprisonment, released on parole, then reoffends and is returned to custody as a result. The court sentencing the offender for the later offences, committed in breach of parole, may take a very different view, if asked to declare time served.21 Older authorities, which addressed the court’s discretion to ameliorate a later sentence, having regard to time served in pre-sentence custody prior to the statutory provision, discussed this in terms of the reason why the person found themselves serving the time they did, prior to later sentence,22 which I have found a useful analysis.

(c) Considerations of general deterrence – which may be better served by preserving the head sentence and moderating the effect of the sentence on the particular offender by making a declaration of time already served.23

Effect of declaration of pre-sentence custody – parole release date at full time release date

It is useful to remember that the effect of a formal declaration of pre-sentence custody is to “backdate” the start of the sentence.24

So, to give a hypothetical example, if you sentence an offender to 12 months’ imprisonment, and you declare 12 months of pre-sentence custody, the start of that sentence is backdated to the beginning of that 12 months, with the result that the person has fully served their sentence.

In that circumstance, there is a somewhat anomalous position that arises under the Penalties and Sentences Act.

Under s 160B(3), where an offender is sentenced to 3 years or less, and the offence is not a serious violent offence or a sexual offence, “the court must fix a date for the offender to be released on parole”. That section does not apply if the court makes an intensive correction order, a prison-probation order or suspends (wholly or partly) the term of imprisonment:  s 160A(6).

Section 160G then provides, relevantly, as follows:

“160G Court may fix any day of sentence as parole release date

(1) If, under this Act, the court must fix a parole release date for an offender, the court may fix any day of the offender’s sentence as the offender’s parole release date.

Examples—

1. An offender who has been held in remand for 7 days is found guilty of an offence and sentenced to 7 days imprisonment. The sentencing court may fix the sentencing day as the offender’s parole release date.

2. An offender is sentenced to 14 days imprisonment for contempt of court. The sentencing court may fix the last day of the sentence as the offender’s parole release date.

(2) If the offender’s parole release date is the date the offender is to be unconditionally released from lawful custody, the chief executive (corrective services) is not required to issue a court ordered parole order under the Corrective Services Act 2006, section 199.

(3) If the court fixes the date on which an offender is sentenced as the offender’s parole release date and subsection (2) does not apply, the offender is taken immediately to be subject to a court ordered parole order—

(a) containing the conditions mentioned in the Corrective Services Act 2006, section 200(1); and

(b) requiring the offender to report to a probation and parole office as defined under that Act and obtain a copy of the court ordered parole order between 9 am and 5 pm either on the day the court fixes the offender’s parole release date or on the next business day.”

The effect of fixing a parole release date, on the last day of the sentence (whether that is in the future, or because of the backdating effect of a declaration of pre-sentence custody), is an order for the offender to be unconditionally released from lawful custody on that day. It is in that respect a “fiction” to refer to fixing a “parole release day” in this context, because the offender will not be released on parole – they will be unconditionally released.  But that seems to be what the statutory provisions provide for.25

Plea of guilty – Parole Board delays

Thankfully, the Parole Board has caught up on the terrible backlog that affected so many applicants for parole during 2020 and 2021. My understanding is that the Board is now dealing with applications within the 120 day time period required under s 193(3) of the Corrective Services Act 2006.

But I am sure you, like me, received submissions during the height of that problem about how that could or should be factored into account, and there is no doubt that it resulted in the distortion of some sentences, whether in terms of the length of them, or the structure of them, from that which the sentencing judge or magistrate would otherwise have considered appropriate, but for the knowledge of the delays besetting parole decisions.

Although the problem has been resolved, it is relevant, as a matter of principle, to keep in mind the observations that were made by the Court of Appeal in R v Watson [2021] QCA 225 – among other things, because they are a reminder of the principles we instinctively apply when sentencing a person who has pleaded guilty.

In Watson, the offender was convicted, on his pleas of guilty, of one count of armed robbery and one count of common assault. He was sentenced to four years’ imprisonment on the armed robbery and a concurrent term of six months on the common assault. He was given a parole eligibility date of the date of sentence. He had by then served about 14 months in custody, all of which was formally declared as time served. In fixing that date, which was a bit less than one-third of the head sentence, the sentencing judge said, in his remarks, that he took into account the delays in parole applications being considered. He sought to appeal the sentence on the grounds, first, that the sentence was manifestly excessive and, secondly, that given what was known about parole delays at the time of sentencing, the sentencing judge did not make proper allowance for the offender’s early plea of guilty by fixing the parole eligibility date when he did.

As to the first ground, it was not contended four years was, of itself, manifestly excessive; rather, that a lower sentence, of three years, would have enabled immediate release on parole.  That ground was rejected.

As to the second ground, the Court held that the sentencing judge failed to make proper allowance for the offender’s early guilty plea, in light of the notorious delay in dealing with parole applications, by failing to consider whether another form of order – for example, suspending the sentence – may have been appropriate (at [29]). The Court said, after referring to the fact of the delays:

“[28] This known circumstance required the judge to structure the sentence, so far as possible, so as to ensure that the applicant received an appropriate mitigation of his sentence on account of his plea of guilty. The judge was not to know what the likely extent of the delay by the Parole Board would be in the applicant’s case. However, he ought to have recognised the substantial risk that the delay would be of such magnitude that the applicant would have to serve a period of actual custody by which he would be deprived of any substantial benefit from his early plea of guilty. As the substantial risk existed at the time of sentencing, and existed for reasons beyond the applicant’s control, fixing the parole eligibility date as the date of sentencing, in the circumstances of this case, did not realistically provide appropriate mitigation on account of the early plea of guilty.”

And, further:

“[29] … The proper mitigation of a sentence for a plea of guilty is important not only for a just outcome for the applicant, but also to avoid a discouragement to other offenders to plead guilty, whose cases would be similarly affected by known delays in the parole system. In our consideration, the judge’s failure to consider the alternative of a partially suspended sentence was an error, affecting the exercise of the sentencing discretion.”

Of course, there are cases in which you may not be persuaded that suspending the sentence is appropriate, having regard to the offender’s criminal history, or other factors. Section 144(2) of the Penalties and Sentences Act provides that an order suspending (wholly or partly) a term of imprisonment “may be made only if the court is satisfied that it is appropriate to do so in the circumstances”. You may consider that a just penalty, community protection and rehabilitation all point to the need for support and supervision on parole, such that suspending the sentence is not appropriate. But the principle in Watson remains apt. It is still necessary to turn your mind to the alternatives, and consider whether, in the decision you are arriving at, proper mitigation to reflect the plea has been factored into account.

Guilty pleas more generally

R v Watson [2021] QCA 225 also contains a useful summary of the relevant principles – and authorities – in relation to guilty pleas and how they are to be taken into account as part of the sentencing discretion. Interestingly, in the context of another presentation that I recently gave – in relation to the history of the DPP – I came upon reference to the first case in which a discount was given for a guilty plea, R v Pickett [1986] 2 Qd R 441. The then Director of Prosecutions (as the office was first known), Des Sturgess QC, had been lamenting the delays occasioned to the criminal justice system by offenders who were committed for trial, very few of whom had any intention of actually having a trial by jury. Sturgess QC appeared for the Crown in R v Pickett, and persuaded the sentencing judge in that case, Mr Justice de Jersey (as he then was) that moderation of the sentence was appropriate, in light of the guilty plea, “because the due administration of justice is served by encouraging guilty persons to enter an honest plea of guilty at an early stage of the proceedings”. The Annual Report for the ODP subsequently recorded an (almost) doubling of the number of guilty pleas.

For ease of reference, I set out the passage from Watson in which the relevant principles in relation to guilty pleas are set out:

“[18] By s 13(1) of the Penalties and Sentences Act 1992 (Qld) (“the Penalties and Sentences Act”), a  court which is imposing a sentence on an offender who has pleaded guilty to an offence must take the guilty plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty. A reduction of the sentence which would have been imposed may be made having regard to the time at which the offender pleaded guilty or informed the relevant law enforcement agency of their intention to plead guilty.26 A court that does not reduce the sentence imposed on an offender who pleaded guilty must state that fact in open court, and its reasons for not reducing the sentence.27

[19] In R v CCR,28 this Court said that although s 13 of the Penalties and Sentences Act does not require a sentencing judge to state in the sentencing reasons the extent of the reduction for the plea of guilty, a practical consequence of the requirements of s 13 is that the judge must form an opinion of the sentence which would have been imposed but for the plea of guilty. The Court noted that the considerations which are relevant to a judge’s decision to reduce a sentence on this ground come from the common law.29

[20] In Siganto v The Queen,30 Gleeson CJ, Gummow, Hayne and Callinan JJ said:

‘[A] plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.’

[21] In Cameron v The Queen,31 after quoting that passage from Siganto, Gaudron, Gummow and Callinan JJ further explained the rationale for the common law rule that a plea of guilty may be taken into account in mitigation as follows:

‘Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.’

[22] When a judge fixes the minimum term before a prisoner is to be considered for release on parole, the judge is making a judicial determination that the circumstances of the offending require the offender to serve no less than that minimum term without the opportunity for parole.32 Setting a parole eligibility date at an earlier date than that on which an offender would otherwise become eligible is treated as a reduction of the offender’s sentence for the purposes of s 13 of the Penalties and Sentences Act.33 That conceptual treatment depends upon the assumption that so proceeding will in fact produce an ameliorating effect on the sentence which would otherwise apply.34

[23] In R v CCR, the Court acknowledged that the extent of the reduction of a sentence for a plea of guilty is frequently a reduction of the non-parole period by a third.35 As was there noted, in R v Ungvari,36 White JA (McMurdo P and Muir JA agreeing) said that:

‘As a matter of general practice in this jurisdiction, the one- third mark of the sentence of imprisonment is seen as an appropriate starting point to recognise a plea of guilty.’

[24] Of course, there is no hard and fast rule that this must be the reduction.37 But as was said in R v CCR:38

‘The frequent application of that degree of discount reflects the value which is ordinarily attributed to the mitigating factors which are the basis for this rule.’”

Plea of guilty can be recognised in other ways

In Pamtoonda v Commissioner of Police [2021] QDC 207, Judge Fantin considered an appeal from a sentencing decision in which the parole release date was set at the half way point, rather than after one-third.

As her Honour correctly observed (at [54]):

“The law does not require that in every sentence mitigating circumstances must be reflected by moderation of the time which an offender will have to serve before being released on, or eligible for, parole. Reduction of the minimum parole period is simply one means by which a sentence may be moderated to allow for mitigating circumstances such as timely pleas of guilty. Others are reduction of both the head sentence and the parole eligibility or release period, or a reduction of the head sentence only.”

In the particular case her Honour was concerned with, the Magistrate had “used the Nagy39 methodology” – that is, to fix a sentence for the most serious offence, which is higher than that which would have been fixed had it stood alone, to take account of the overall criminality, with the remaining sentences to be concurrent (rather than adding the sentences for each offence together). That had the added benefit for the offender of enabling the Magistrate to arrive at a sentence of three years, which in turn meant that he could have the certainty of a parole release date. The head sentence was fixed taking  into account the offender’s pleas of guilty. In those circumstances, and given that apart from his plea of guilty, the offender otherwise had few mitigating factors in his favour (he was 28, with an appalling criminal history, had substance abuse problems and a strong risk of reoffending), Judge Fantin rejected an argument that the sentence was manifestly excessive.

A broader principle that this case demonstrates, that has been addressed by the Court of Appeal on a number of occasions, is that care must be taken, in reducing the penalty to be imposed because of a guilty plea, not to give an impermissible “double benefit”. This might be the case, for example, where the head sentence has already been significantly reduced, on account of the plea of guilty and other mitigating factors, and then there is added a reduction of the time to serve before parole eligibility.40

Sentencing court must state in open court that it took account of the guilty plea in determining the sentence imposed

Section 13(3) of the Penalties and Sentences Act 1992 provides that:

“When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.”

Failure to comply with that is not necessarily fatal on an appeal – but it is an important requirement, and it is better to comply with it than leave it to chance that an appellate court will find it didn’t matter in a particular case.

Why it matters was explained by Fraser JA in R v Safi [2015] QCA 13 at [15]-[16].

“[15] …I would accept that the sentencing judge did not state in open court that the applicant’s pleas of guilty were taken into account in imposing sentence. The sentencing judge did recite that the applicant had pleaded guilty to the two counts of trafficking but the sentencing judge did not state that he had taken those pleas of guilty into account in imposing sentence. The sentencing judge therefore did not comply with the obligation imposed by s 13(3) of the Penalties and Sentences Act 1992 …

[16] The question in this application is not whether there was such a non-compliance but what were the consequences of that non- compliance. I accept that the obligation imposed by s 13(3) is important. Where leniency is afforded on account of a plea of guilty, a statement to that effect serves the particularly important purpose of informing offenders of that fact. The publicity given to such statements encourages guilty offenders to plead guilty, thereby saving victims and witnesses of offences the trauma, disruption, and expense which may be involved in giving evidence and it saves the State the expense of prosecuting offences. Where it is evident that the guilty plea was in fact taken into account, however, those considerations will not necessarily justify the Court in reviewing a sentence merely because the sentencing judge did not clearly state that the plea was taken into account. The applicant relied upon the Court’s observation in R v Mallon [1997] QCA 58 that one result of failure of a sentencing court to make the required statement in open court will be to “place the imposed sentence in jeopardy.” That observation does not suggest that a non- compliance inevitably must result in the sentence being reviewed in all cases. That such a noncompliance may not always require review of the sentence is also consistent with the Court’s immediately following observation that a non-compliance “will cause the Appeal Court to examine [the sentence] closely since it will not clearly appear that the court has in fact taken the plea into account.” In this case I would conclude that the non-compliance does not justify review of the sentence because, despite the non- compliance, it is quite clear that that the sentencing judge did take the guilty pleas into account in formulating the sentence. My conclusion that the sentencing judge took the guilty pleas into account in formulating the sentence is supported by the sentencing judge’s observation that the applicant had pleaded guilty, the circumstance that all of the comparable sentences to which the sentencing judge was referred, and which the sentencing judge cited, were imposed upon pleas of guilty, the circumstance that the sentence imposed by the sentencing judge was within the range of sentences suggested by those decisions, and the inherent unlikelihood that this basic principle was overlooked.”

A more recent case in which the Court of Appeal formed a different view, where the sentencing judge did not expressly acknowledge the pleas of guilty in their remarks, is R v Bassi [2021] QCA 250. The sentencing judge imposed a head sentence of three years imprisonment, and fixed a date for parole release after one-third of that sentence – consistent with the usual practice on a plea of guilty. But in circumstances where there were extensive submissions made, and material, about remorse and rehabilitation, and the Crown had put up a comparative case in which the sentence was less than was imposed in Bassi’s case, the Court of Appeal held the failure to comply with s 13(3) was a material error because “whether, and how, the plea was taken into account is not apparent from” the sentencing remarks (at [26]).

No doubt you all have some kind of basic script you use, at least as an outline for sentencing remarks. I have a fairly automatic start to my sentencing remarks – ingrained in my brain after delivering many of them – which goes something like:

“[Name of defendant], you are to be sentenced for [list offences]. You have pleaded guilty to those offences before me today [or state when if it was earlier], and I am taking your pleas of guilty into account, in your favour, in reducing the penalty that otherwise would have been imposed on you. By entering those pleas of guilty, you have taken responsibility for your actions and shown a willingness to assist the course of justice. [In an appropriate case, I might form the view that the pleas are also an indication of remorse and, if so, add reference to this.]

I will then also explain, at the end, whether I have factored the plea of guilty into account in arriving at the head sentence (or not), and then how it has been factored into account at the “bottom” of the sentence.

Bassi is a timely reminder of the importance spelling this out, even if you might think that the structure of your sentence should make it apparent the guilty plea was taken into account.

Expert evidence tendered at sentencing hearings

R v Bassi [2021] QCA 250 also dealt with the somewhat vexed topic of psychologists’ reports sought to be tendered on sentencing hearings.  I say “somewhat vexed” because:

(a) sometimes, such reports can appear to really be a “statement” from the defendant, taken by the psychologist rather than by the defendant’s solicitor – at considerable cost, and at times causing delay in setting the matter down for a hearing – rather than an expression of opinion by the psychologist; and

(b) there are differing views as to the admissibility of an opinion expressed by a psychologist as to diagnosis of a medical condition.

However, as to the latter point, R v Bassi is authority for the proposition that such a report may be admissible as expert opinion, depending “entirely upon the result of the application of the established principles for the determination of the admissibility of expert evidence and the admissibility of such evidence is a question of fact” (at [61]). The principles are summarised at [51]-[54], by reference, among others, to Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [41].

And as to the former point, the Court in R v Bassi emphasised that in Queensland, as in other jurisdictions, sentencing judges rely on hearsay evidence and assertions from the bar table in order to sentence offenders, referring to s 132C of the Evidence Act 1977, which provides:

“132C Fact finding on sentencing

(1) This section applies to any sentencing procedure in a criminal proceeding.

(2) The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

(3) If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.

(4) For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.

(5) In this section—

allegation of fact includes the following—

(a) information under the Penalties and Sentences Act 1992, section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;

(b) information under the Youth Justice Act 1992, section 150(4A) or in a pre-sentence report under section 151 of that Act;

(c) information given to the court under the Penalties and Sentences Act 1992, section 179K;

(d) other information or evidence.”

The Court also referred to s 15(1) of the Penalties and Sentences Act 1992, which provides:

“In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act 2006, section 344, or a sentencing submission made by a party to the proceedings, that it considers appropriate to enable it to impose the proper sentence.”

The Court in Bassi then said, at [72]:

“In sentencing an offender, a judge has to make findings of fact about a variety of matters including findings about the offender’s personal circumstances. While particular rules may have to be applied when facts are disputed,41 if a submission is advanced in mitigation about an offender’s personal circumstances and if the asserted facts are not disputed by the Crown, and the offender is not put on notice by some means that the facts put forward in mitigation might not be accepted, an offender is entitled to assume that a sentencing judge will accept the factual submission at face value unless the judge indicates otherwise.”

The Court held that there were undisputed facts contained in the psychologist’s report that were relevant to the sentence, including as to the offender’s personal circumstances, his drug dependency (which was also relevant to the maximum penalty applicable), that a previously diagnosed condition of ADHD was causatively linked to his drug dependence, and his prospects of rehabilitation. The Court found it was an error to reject the tender of the psychologist’s report as inadmissible.

Intoxication and mental health as sentencing considerations

As Kelly J recently observed, in R v Adam [2022] QCA 41, “[i]n contemporary society, [intoxication and mental health conditions] are commonly part of the narrative of offending”.

In Adam, Kelly J (with whom Sofronoff P and Mullins JA agreed) considered the authorities in relation to voluntary intoxication, leading to the enactment of s 9(9A) of the Penalties and Sentences Act, which provides that “[v]oluntary intoxication of an offender by alcohol or drugs is not a mitigating factor for a court to have regard to in sentencing the offender”. However, the Court emphasised the continuing authority of R v Rosenberger; Ex parte Attorney-General (Qld) [1995] 1 Qd R 677; [1994] QCA 488, to the effect that, in an exceptional case, there may be some other matter or feature which wholly or partly excuses the voluntary taking of alcohol or drugs, which matter or feature might be treated as a circumstance going in mitigation (see at [26], [29], [30], [31], [33]). Examples given include where a chronic and painful medical condition is the cause of the alcohol addiction that resulted in voluntary intoxication;42 or where the intoxication is attributable to a mental disorder.43

As Kelly J said, at [40]:

“Kevich, Clark and BCX are all examples of cases where a voluntary drunk or stupefied offender received mitigation because their offending was not solely the consequence of voluntary intoxication or stupefaction. In Kevich, there was a causal connection between the offending and the painful effects of a physical disease, Crohn’s disease. In Clark, there was a causal connection between the offending and the impairing effects of bipolar disorder. In BCX, there was a causal connection between the offending and an underlying autistic spectrum disorder and a depressive disorder characterised by severe anxiety. The affording of mitigation in these types of cases is not inconsistent with the intended operation of s 9(9A) of the Act. However, it should be observed that the causal link or connection between the offending and the matter which is something other than voluntary intoxication or stupefaction, is required to be established by the evidence.44 Where the matter comprises a mental impairment or disorder, the diagnosis of a condition is only the beginning, not the end of the enquiry.45”

His Honour then went on to summarise (at [41]-[45]) the legal principles which apply in relation to consideration of a mental disorder short of insanity, by reference to R v Tsiaras [1996] 1 VR 398, R v Verdins (2007) 16 VR 269 and R v Goodger [2009] QCA 377.

You would be familiar with these principles, but it may be helpful to set them out here.

In Verdins (at 274), the Court said that:

“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment”

And in terms of how “impaired mental functioning at the time of the offending may reduce the offender’s moral culpability”, the Court in Verdins (at 275) said this could be the case if it had the effect of:

“(a)      impairing the offender’s ability to exercise appropriate judgment;

(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;

(c) making the offender disinhibited;

(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;

(e) obscuring the intent to commit the offence; or

(f) contributing (causally) to the commission of the offence.”

The offender in Adam was convicted of dangerous operation of a vehicle causing grievous bodily harm while intoxicated. On the particular facts in Adam, it was not established that the offender’s state of intoxication on the day of his offending, which was found to be voluntary, had been caused by his mental conditions (personality disorders). There was evidence of a psychologist that, at least historically, the presence of personality disorders was the substantive cause of the offender’s use of drugs and alcohol, from the age of 15, in self medicating to manage the resultant depression and anxiety (at [48]). However, the Court found, the psychologist’s report did not express a clear or cogent opinion about whether any mental conditions had caused the offending. That is, whilst the psychologist expressed the opinion that the offending was “due to significant levels of inebriation”, he did not specifically address what had caused the offender to be intoxicated on the night of the offending (at [49]).

This case emphasises the importance of paying careful attention to the evidence, for example as contained in a psychologist’s report, when considering a submission in mitigation on the basis of a mental health condition; particularly so, where there is also voluntary intoxication, having regard to s 9(9A).

Factual basis for sentence – information or submissions for sentence

Following on from the last two points, it is useful to remember the principles that apply on a sentencing hearing, in terms of information provided or allegations made, even where there is no challenge from the opposing party. This matter was addressed in R v Field [2017] QCA 188 at [36]-[48]. It was also addressed more recently, in R v RBE [2021] QCA 146.

The reasons of Burns J (with whom Morrison and McMurdo JJA agreed) in R v RBE include the following helpful summary of the principles:

“[22] Section 15 of the Penalties and Sentences Act 1992 (Qld) provides that, in imposing a sentence, a court may receive any information, or a sentencing submission made by a party to the proceeding, that the court considers appropriate to enable it to impose a proper sentence. As such, a sentencing court is not constrained by the rules of evidence. It is a matter for the judge to decide what information or submissions it receives and, if accepted as reliable, the weight to be attached. This provision enshrines the long- standing practice of the courts to permit considerable flexibility in the presentation of evidence and other information to a sentencing court. However, the essential character of sentence hearings is accusatorial: Strbak v The Queen (2020) 267 CLR 494, [31]-[32]. Accordingly, where some aspect of the ‘information’ (or what is submitted by way of allegation) is disputed by the offender, it is for the prosecution to prove all matters of fact on which it relies that are adverse to the interests of the offender: R v Olbrich (1999) 199 CLR 270, [27]; Strbak, [32]. At common law, proof of such facts is required to the criminal standard but, in Queensland, the common law is modified by s 132C of the Evidence Act. It is in these terms [see s 132C set out above].

[23] It is to be observed that s 132C is concerned with allegations of fact, the onus of proof of which necessarily rests with the prosecution: R v Carrall [2018] QCA 355, [9]. The sentencing judge may act on an allegation of fact that is admitted or not challenged, but he or she is not obliged to do so. Where an allegation of fact is not admitted or is challenged, the judge may act on the allegation if satisfied on the balance of probabilities that it is true and the degree of satisfaction required in that regard varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true. Indeed, the required degree of satisfaction may be high where proof of the disputed fact carries with it significant consequences for the offender’s sentence: R v Ta [2019] QCA 53, [12]-[13]; R v Cumner [2020] QCA 54, [53]. Furthermore, s 132C is not merely concerned with the presentation by the prosecution of the primary facts; it also governs the making of an allegation based on any inferences that are alleged to arise from those facts (such as motive). Importantly, information advanced to a sentencing court (through the medium of an agreed statement of facts or otherwise) does not suddenly become a factual repository for the court to make of it what it will. It is for the prosecution to allege what is to be inferred and, where that allegation is not admitted or challenged by the offender, it is for the sentencing judge to decide whether such an inference should be accepted.

[24] In the case of submissions made on behalf of an offender, a sentencing judge is likewise not obliged to accept defence assertions from the bar table, even if no evidence is led by the prosecution to the contrary and even if the prosecution makes no submission about the matter: Olbrich, [25]; R v Galeano [2013] 2 Qd R 464, [46]. Of course, if the judge is inclined to reject such an assertion, that inclination must be made known to the offender who must be given a reasonable opportunity to make good that which has been asserted: R v Field [2017] QCA 188, [48]. That said, in cases where differing versions of relevant events have like probability then the version most favourable to the offender should be accepted: R v Welsh [1983] 1 Qd R 592, 595; Field, [39].” [underlining added]

You cannot suspend a sentence that does not start until a date in the future

This point was made in a recent decision of the Chief Judge in Hemmett v Commissioner of Police [2021] QDC 318 at [19]-[21] where his Honour said:

“[19]     A court cannot, in my opinion, suspend a future sentence. Section 156A provides that in certain circumstances a sentence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve. A cumulative order means the imprisonment is directed to start from the end of a period of imprisonment the offender is serving, or has been sentenced to serve: PSA s 156.

[20] Section 144 of the PSA provides that a court may order that a term of imprisonment be suspended:

‘(1)  If a  court sentences an  offender to imprisonment  for 5 years or less, it may order that the term of imprisonment be suspended.

(2) An order under subsection (1) may be made only if the court is satisfied that it is appropriate to do so in the circumstances.

(3) An order under subsection (1) may suspend the whole or a part of the term of imprisonment.

(4) A court must not suspend a term of imprisonment if it is satisfied, having regard to the provisions of this Act, that it would be appropriate in the circumstances that the offender be imprisoned for the term of imprisonment imposed.

(5) The court must state an operational period during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 for the suspended sentence.

(6) The operational period starts on the day the order is made and must be—

(a) not less than the term of imprisonment imposed; and

(b) not more than 5 years.’ (emphasis added)

[21] Because subs (3) provides that a court may suspend part of a term, it follows that the suspension may take effect immediately, or at a date after the sentence order was made. In either case, the operational period commences on the day the order is made. It  is incongruous that an operational    period could run before a sentence has commenced.

[22] It would be inconsistent  with the scheme of the Act to purport    to delay the start of a suspended sentence because the operational period commences on the day the order is made. The liability to serve the sentence is immediate and continues through the operational period, although contingent on an order being made under s 147 of the PSA upon breach.

As far as I am aware, that point has not yet been considered by the Court of Appeal. I share the Chief Judge’s view of the effect of s 144.

Section 156A – when a later sentence must be ordered to be served cumulatively

In Hemmett v Commissioner of Police [2021] QDC 318 the Chief Judge also dealt with an argument that, in the circumstances of that case, s 156A did not apply, because at the date of sentence, in circumstances where the offender’s parole was only suspended, not cancelled, he was not (then) liable to serve the (previous) term of imprisonment.

Section 156A of the Penalties and Sentences Act 1992 provides:

“156A Cumulative order of imprisonment must be made in particular circumstances

(1) This section applies if an offender—

(a) is convicted of an offence—

(i) against a provision mentioned in schedule 1;46 or

(ii) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and

(b) ommitted the offence while—

(i) a prisoner serving a term of imprisonment; or

(ii) released on post-prison community based release under the Corrective Services Act 2000 or released on parole under the Corrective Services Act 2006; or

(iii) on leave of absence, from a term of imprisonment, granted under the Corrective Services Act 2000 or the Corrective Services Act 2006; or

(iv) at large after escaping from lawful custody under a sentence of imprisonment.

(2) A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.”

The Chief Judge rejected the argument, describing it as flawed. In a succinct statement, after referring to the definitions of “liable” and “offence” in the Criminal Code, to s 153 (liability to imprisonment) and the definition of “term of imprisonment” in s 4 of the Penalties and Sentences Act 1992, and to ss 214 and 215 of the Corrective Services Act 2006,47 the Chief Judge said:

“[30] These provisions suggest a person is liable to punishment upon commission of an offence. More particularly, a person is liable to serve a term of imprisonment upon being convicted and sentenced to a term of imprisonment. Liability to serve the term continues until it is served. A person is taken to be serving the sentence while on parole. The sentence is served if the parole expires without being cancelled.

[31]    It is enough to say that person on parole, even if the parole is suspended, is liable to serve the sentence.”

Utility of short terms of imprisonment

This is a tricky issue. In R v Rogan [2021] QCA 269, the Court of Appeal upheld an appeal against a sentence (imposed for one count of indecent assault) of 12 months, ordered to be suspended for an operational period of two years after the applicant had served two months. The circumstances of the offence are set out at [2] of the decision and involve a persistent sexual assault, which the Court acknowledged would have been shocking, distressing, revolting and frightening for the victim of it (at [4]). The Court of Appeal found that the sentencing judge’s conclusion that the seriousness of the offending called for a period of actual custody was incorrect. Relevant to that conclusion was the fact that the offender in that case was 36 years of age, had no criminal history, the offending was “wholly uncharacteristic” for him, and he was otherwise a person of good character with a good work history. The Court accepted there was evidence of real remorse, acknowledgment of wrongdoing and insight, as well as a timely plea of guilty (at [19]).  That finding in relation to remorse was an important counterweight, the Court found, to the considerations of denunciation having regard to the seriousness of the offending which led the sentencing judge to impose a period of actual imprisonment (at [18]).

Sofronoff P, giving the reasons of the Court (McMurdo JA and Williams J agreeing) observed at [16]-[17] that:

“A very short term of imprisonment can have large effects. Apart from the stigma which imprisonment carries, it may affect present and future employment, housing arrangements and all kinds of financial arrangements. The effects of prison extend to whatever experiences are undergone in prison, which may occur even within a short period.

Consequently, the imposition of a very short term of imprisonment is not just a matter of the loss of liberty for a particular period.”

This is a tricky issue, among other things, because of s 9(4)(c) of the Penalties and Sentences Act, which provides that in sentencing an offender for an offence of a sexual nature committed in relation to a child under 16 or a child exploitation material offence, “the offender must serve an actual term of imprisonment, unless there are exceptional circumstances”.

Plainly, each case will depend on its own facts. But as this case demonstrates, careful consideration must be given before making a sentencing order which involves such a short period of time in custody.

Need to consider the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)

In R v Nona [2022] QCA 26, the Court of Appeal considered a challenge to a sentence imposed for one count of attempted indecent dealing (three months’ imprisonment, wholly suspended) which had the effect of triggering the reporting obligation under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). The conviction followed a trial, at which the offender was acquitted of an additional count of rape.  The appeal against conviction was dismissed.

The effect of s 5 of the Reporting Act is that a person convicted of a reportable offence (see s 9) becomes a reportable offender unless a term of imprisonment was not included in the sentence and no conviction was recorded.

The Court of Appeal first considered whether the sentence of three months’ imprisonment, wholly suspended, was manifestly excessive; concluding that it was not. As Henry J said, at [66], whilst the offence was a single attempt and the offender had not offended similarly before, the circumstances of the case told against a more generous outcome than the short wholly suspended sentence which was imposed. The offender was 47 and the complainant was only 13 and in his care at the time. Although the offender had not previously received a sentence of imprisonment, many convictions had previously been recorded against him. Because he went to trial, he did not have the mitigatory advantage of a plea of guilty.

Further, the Court also held that the fact that the sentence triggered the reporting obligation did not render it manifestly excessive either. The members of the Court (Bond JA, Boddice J and Henry J) expressed slightly differing views as to whether the consequence of the sentence – the triggering of the reporting obligation – was a material consideration in the exercise of the discretion.  Bond JA considered that it was, as part  of the integrated process involving consideration of all the circumstances of the case (at [4(a)]). Boddice J (at [8]) considered that, in the circumstances of that particular case, the reporting consequence could not form any basis to conclude the sentence of imprisonment was manifestly excessive. Henry J (at [88]) was of the view that the consequence could not have carried any material weight in the circumstances of that case because:

“The option of suspending a term of imprisonment only arises under s 144 Penalties and Sentences Act ‘if’ the court sentences the offender to imprisonment (for five years or less). If the circumstances of the case are sufficiently serious to warrant a term of imprisonment it is inherently unlikely such serious circumstances would be outweighed merely by the consequence that such a sentence will trigger the application of the Reporting Act’s reporting regime. As found above, the circumstances here were sufficiently serious for the learned sentencing judge to legitimately conclude a sentence of imprisonment was appropriate, albeit that it was suspended. That the applicant would consequently have to suffer the impact of the reporting regime could not of itself have made a material difference to such a conclusion. However, no additional information, unique to the applicant’s circumstances, was advanced to demonstrate that the demands of the reporting regime would cause some out of the ordinary consequence of potential relevance to the determination of sentence.”

The reasons of Henry J at [59] also include a reminder of another relevant principle, namely that the:

“rule in R v D [1996] 1 Qd R 363; [1995] QCA 329 precludes a sentencing court from considering conduct of which the offender has not been convicted, which constitutes a separate offence from and is not part of the conduct constituting the offence being sentenced.”

Sentencing when there are no comparable decisions available to assist you

As we know, the sentencing discretion is to be exercised with the aim of reasonable consistency.  As Gleeson CJ said in Wong v The Queen (2001) 207 CLR 584 at 591 [6]:

“All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.”

Reference to what has been done in other cases aids the sentencing court to achieve the aim of reasonable consistency.48

The question of the appropriate penalty to impose, when there are no comparable sentence decisions available to assist you, is a difficult one, but the process remains the same: to take into account all the relevant considerations, apply the relevant legal principles, and balance the various different and conflicting features of the case, to reach what the sentencing judge considers, in the exercise of the discretion, is the just sentence for the offence.49

The best starting point for the relevant principles is part 2 of the Penalties and Sentences Act, with which you are all familiar – commencing with s 9(1) (the purposes for which sentences may be imposed) and then s 9(2) (the things a sentencing court must have regard to), which is adapted by the subsequent sub-sections of s 9 for some categories of offence.

I would also, though, if you have time – which I know is not a given – check the Queensland Sentencing Information Service because you might find, even if the parties tell you there are no comparative decisions, that there actually are.

One example of the approach to be taken in respect of an offence for which there is no assistance yet available in terms of the appropriate penalty is Ross v Commissioner of Police [2018] QDC 99, in which Muir DCJ dealt with an appeal against the sentence imposed for “contravening order about information necessary to access information stored electronically” (s 205A of the Criminal Code) (that is, refusing to provide a PIN to access a mobile phone when required by police to do so).

In her Honour’s decision, she made reference to the maximum penalty for the (then) new offence under s 205A of the Code – 5 years imprisonment – and to the background, as explained in the relevant extrinsic material, to the inclusion of that offence in the Code. That lead her Honour to conclude that:

“the offence created under s 205A of the Criminal Code is a serious one which strikes at the heart of the administration of justice. It involves a failure to comply with a court order.50 It follows that in considering the penalty to impose, it is necessary to take into account the need for general deterrence and denunciation” (at [46]).

Her Honour accepted the Crown’s submission that the “gravamen of the offence lies in the fact that it stymies an investigation and potentially conceals more serious offending” (at [77]). Her Honour referred to R v Goodwin; ex parte Attorney General (2014) 247 A Crim R 582; [2014] QCA 345 at [37] where Mullins J (as her Honour then was) said:

“The lack of comparable sentences may deprive the sentencing judge of the assistance of ‘the yardstick’ for testing the proposed sentence, but it does not preclude the sentencing judge from otherwise finding the relevant facts for the purpose of the sentencing, weighing up the relevant factors relating to the offence and the offender, and applying the principles of sentencing found in the relevant legislation and the common law, in order to reach the appropriate sentence for that offending. The sentencing judge may very well find the exercise of the discretion to be more difficult, in the absence of, and without the usual assistance afforded by, comparable sentences, but as a matter of principle the sentencing judge will have available sufficient material from the evidence adduced on the sentence and the relevant law to undertake the well defined process of sentencing.”

As Muir DCJ said, at [81], “the key to resolving this question, as Sofronoff P reiterated recently in R v Kelley,51 lies in the proper characterisation of the offending conduct, the impact of the appellant’s age and criminal history and any other matter comprehended within s 9(2) of the PSA”. Considering those factors, in the context of the particular offence, her Honour concluded the sentence of 12 months imprisonment, wholly suspended, imposed at first instance, was not manifestly excessive (see at [83]-[89]).

That decision was upheld by the Court of Appeal: Ross v Commissioner of Police [2019] QCA 96. An aspect of the appellant’s argument on the appeal was that the courts below ought to have embarked on a fact-finding exercise to determine the level of criminality on the part of the offender (in simple terms, what was he actually hiding) which, it was said, ought to have then been reflected in the penalty. The Court of Appeal (Wilson J, Gotterson and McMurdo JJA agreeing) and rejected that argument. The Court confirmed (at [43]) that:

“The gravamen of a section 205A Criminal Code offence lies in the fact that  it  stymies  an  investigation  and  potentially  conceals more serious offending,52 and has the potential to deflect a police investigation into potentially very serious offences.53”

The Court further said that:

“[49] In this case, the level of criminality was unknown to the court because the applicant refused to provide the access information and no submissions were made on his behalf about the reasons why he refused to do so. The learned Magistrate is not expected, in these circumstances, to embark upon a fact-finding investigation to determine the level of criminality hidden by the applicant’s refusal to comply with the Access Order.

[50] The learned District Court judge was correct to find that the criminality of this offence was simply that the applicant was hiding something and that, as with the offence generally, there was the potential for it to be a serious offence. No further specific finding could be made in the absence of submissions from either the police prosecutor or the applicant’s solicitor.

[51] It was not necessary for the learned Magistrate to have gone one step further and find, as a relevant fact, what the potential criminality was and what a court could rationally conclude was the level of seriousness of the offence(s), or potential offence(s), being withheld.

[52] There may be occasions where submissions are made by the prosecution or the defendant’s representative which may mitigate or aggravate a refusal to comply with an order for access information. These matters may be taken into account54 and if contested then the usual fact-finding process pursuant to section 132C of the Evidence Act can be undertaken.”

The Court of Appeal otherwise rejected the argument that the sentence was manifestly excessive. In that context, acknowledging there were (then) not decisions from the Queensland Court of Appeal in relation to the offence under s 205A, Wilson J made reference to decisions in Western Australia in relation to a similar offence (at [59]-[62]), and to sentences from Queensland in relation to other offences involving conduct contrary to the administration of justice or in defiance of court orders (at [63]).

Interestingly, if you now go to QSIS, and look for the statistics from the Magistrates Court about this offence under s 205A, you can see there are 151 cases. In just over 30% of those, a sentence of imprisonment was imposed.  In 44% a wholly suspended term of imprisonment was imposed and in 10% a fine was imposed. The statistics for the District Court show that there have been eight matters of this kind dealt with, and the statistics are fairly consistent – 37.5% involved a penalty of actual imprisonment; 50% involved wholly suspended terms.

Another example that I understand may be of particular relevance to you is the offence of “habitually consorting with recognised offenders” (s 77B of the Criminal Code). I can see from QSIS that in the last four years, only three of these cases have been dealt with in the Magistrates Court. In one, a recognisance order was made (with no conviction recorded), in another a fine was ordered and in the third a sentence of imprisonment of, I think, six months was imposed. There are no decisions from the District Court or Supreme Court in relation to that offence.

So, in terms of how to deal with that offence, the approach adopted by Muir DCJ in Ross is a good roadmap.

Section 77B of the Code provides as follows:

“77B    Habitually consorting with recognised offenders

(1) A person commits a misdemeanour if—

(a) the person habitually consorts with at least 2 recognised offenders, whether together or separately; and

(b) at least 1 occasion on which the person consorts with each recognised offender mentioned in paragraph (a) happens after the person has been given an official warning for consorting in relation to the offender.

Maximum penalty—300 penalty units or 3 years imprisonment.

(2) For subsection (1), a person does not habitually consort with a recognised offender unless the person consorts with the offender on at least 2 occasions.

(3) This section does not apply to a child.

(4) In this section—

official warning, for consorting, see the Police Powers and Responsibilities Act 2000, section 53BAA.

That provision was enacted, as part of a new part 2, chapter 9A (consorting), by s 141 of the Serious and Organised Crime Legislation Amendment Act 2016.

The Explanatory Notes to the Bill which became that Act explain that the “new consorting offence and the new Organised Crime Control Orders are intended to replace the anti- association offence (section 60A)” and also includes the following (at p 10):55

“The Bill reflects, in-principle, Taskforce recommendation 18 by providing for a new offence of habitually consorting with recognised offenders. The Taskforce majority recommended that the anti-association offence (section 60A) be replaced with a temporary consorting offence as it would provide a more constitutionally robust, fairer, efficient and effective approach as compared to the 2013 anti-association offence (see pages 194-195 of the Taskforce Report).

The consorting offence in the Bill includes many of the elements from the model offence recommended by the Taskforce majority; and is also based on the equivalent offence in New South Wales (NSW) under section 93X of the Crimes Act 1900 (NSW).

The Bill provides that it will be a misdemeanour (i.e. an indictable offence) for a person to consort with two recognised offenders after having been given an official warning by police with respect to each of those individuals. The offence carries a maximum penalty of three years imprisonment or 300 penalty units, or both.

The offence under the Bill does not apply to persons under the age of 18, and is framed to reflect the Government’s intention that the consorting offence be targeted at disrupting the type of consorting that facilitates and enables serious and organised criminal activity.

A ‘recognised offender’ for the purposes of this offence is a person, aged 18 years or over, who has a recorded conviction for an indictable offence punishable by a maximum penalty of at least five years imprisonment and other prescribed offences that may be associated with serious and organised crime (which carry maximum penalties less than five years imprisonment). Unrecorded convictions and convictions that have become ‘spent’ under the Criminal Law (Rehabilitation of Offenders) Act 1986 are excluded from the definition of ‘recognised offender’.

A person consorts with another person if they associate with the person in a way that involves seeking out or accepting the other person’s company. This definition reflects the comments of his Honour Justice Keane (paragraphs 205-206) in Tajjour v NSW (2014) 313 ALR 221 in his examination of the NSW consorting offence. This means that random social interactions that occur in the course of daily life (e.g. purchasing stamps at the post office or a bus ticket from a bus driver) will not amount to acts of consorting that are captured by the offence in the Bill. For an act of consorting to be captured there needs to be an intentional seeking out of a personal social relationship with another person.”

From that, there are three places to look for some assistance:

(a) sentencing decisions in relation to s 60A – a reference to QSIS reveals none in the District or Supreme Courts, and only 4 in the Magistrates Court;

(b) sentencing decisions in relation to s 93X of the Crimes Act 1900 (NSW) – a quick search of Casebase reveals only one decision, other than Tajjour, dealing in substance with the offence under s 93X of the NSW Crimes Act. That is Forster v Director of Public Prosecutions [2017] NSWSC 458, an appeal against a conviction for consorting – not of assistance in the context of the present sentencing discussion, but definitely a useful decision to have regard to if you need to consider the elements of the offence;56 and the decision of Keane J in Tajjour v NSW (2014) 313 ALR 221. Tajjour involved  a challenge to the validity of the legislation, which was unsuccessful. Again, not  of assistance on the question of sentencing, but definitely of assistance if you have a contested matter.

I had one last go – on Austlii – to see if I could find any assistance on sentencing for the NSW equivalent, but there was none.

So, you would start with the nature of the offence, and the maximum penalty (3 years imprisonment). You would then turn to the guidelines under s 9(2), and work through those – by reference to the particular factual circumstances of the offending, and the offender, before you. In the end, you can only do your best in terms of applying the relevant principles and taking all the relevant factors into account, and as can be seen with the “refusing to provide a PIN” case, development of the law will follow, as someone elects to appeal, and that gives the District Court and the Court of Appeal the opportunity to consider the matter and provide some guidance.

The parity principle

I will finish with a decision just handed down a couple of days ago, R v Smith [2022] QCA 89, in which the Court of Appeal considered, among other things, the parity principle.

The principle is discussed in the reasons of Applegarth J at [66]-[74] (with which Morrison JA, at [2], and Bond JA (at [15]) agreed):

“[66]    The parity principle is an aspect of the principles of equal justice.

[67] Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.

[68] If other things are equal, persons who have been parties to the same offence or have committed offences arising out of the same criminal enterprise should receive the same sentence. Other things, however, are rarely equal. Matters such as age, background, criminal history, general character and the part that each offender played in the relevant criminal conduct or enterprise have to be taken into account.

[69] In the case of co-offenders, different sentences may reflect their different circumstances or their different roles in the relevant criminal activity. An appeal court will not intervene when the disparity in sentence is justified by relevant differences.

[70] The parity principle is not applied to increase what would otherwise be an appropriate sentence so as to avoid a previously-sentenced offender feeling a justified sense of grievance. The parity principle is only relevant where a sentence might be such as to engender a justifiable sense of grievance in the offender being sentenced.

[71] The sense of grievance necessary to attract appellate intervention is to be assessed by objective criteria.

[72] The parity principle will be engaged if the challenged sentence is disproportionately higher than a sentence that has already been imposed on a co-offender.

[73] A proper comparison of sentences in order to determine if the principles of equal justice (including the parity principle) have been applied involves a consideration of all components of the sentences, not simply the head sentences. Consideration should include the non-parole periods.

[74] If, after having regard to all components of the sentences, the circumstances of the offenders and the part each played in the relevant criminal conduct or enterprise, there is an unjustified disparity between sentences, then the relevant sentence should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.” [references omitted]

In that case, there were two co-offenders involved in a significant drug trafficking business.         One  (the   applicant  for  leave  to   appeal)   was  sentenced   to  10   years’ imprisonment, resulting in an automatic Serious Violent Offence declaration and the requirement to serve 80% before being eligible for parole; the other, who was the applicant’s subordinate in the business, was sentenced to 9 years, with eligibility for parole after 3 years. Although the applicant did not contend that 10 years was manifestly excessive, the argument on the appeal was that the sentence breached the parity principle because she would be required to serve five more years than her co-offender, before being eligible for parole, which was a “disparity not justified by the differences in the culpability or circumstances of the two co-offenders”.

That argument was rejected by the Court of Appeal, in essence, because whilst the difference at the “bottom” of the sentence may seem excessive, the difference in the head sentences (only 1 year) might be considered inadequate, as not reflecting the significant differences in culpability of each offender, and their personal circumstances (including a considerable difference in age between the applicant and the subordinate co-offender). Absent the plea of guilty, the Court considered the applicant could have expected a sentence considerably higher than 10 years. The reduction to 10 years gave proper consideration to sentencing principles, including the parity principle. As Applegarth J explained, at [130] (Morrison JA (at [2]) and Bond JA at [18]) agreeing:

“Viewed in isolation, the five-year difference in their non-parole periods seems excessive. However, that difference cannot be viewed in isolation, the sentences must be looked at as a whole, and also as the products of principles and statutory provisions that govern parole eligibility dates and which necessitated their guilty pleas being taken into account ‘at the bottom’ (in the case of Cheers [the co-offender]) and ‘at the top’ (in the case of the applicant).”

Conclusion

What this survey of recent cases reveals is the complexity and ongoing development of this central and important part of your Court’s, and the Supreme and District Court’s, work. When you think about the fact that, on a daily basis, you are in some way, shape or form, applying these principles – and many others that have not been addressed here – instinctively, and in a synthesised way, to produce sentencing decisions, the vast proportion of which are never challenged by way of appeal, that is a reason to be extremely proud of the work that you collectively undertake in the service of the people of Queensland.

[1] Wong v The Queen (2001) 207 CLR 584 at 611; Markarian v The Queen (2005) 228 CLR 357 at [27] and [37].

[2] https://archive.sclqld.org.au/judgepub/2019/smith20190516.pdf.

[3] https://archive.sclqld.org.au/judgepub/2021/cash20210828.pdf.

[4] I addressed the matter of bias in the paper I presented to this conference in 2018 entitled “Reasons, restraint and reasonable apprehensions (or … what you should say, what you shouldn’t, and why it might matter)” – https://archive.sclqld.org.au/judgepub/2018/bowskill20180531.pdf.

[5] In re Hamilton; In re Forrest [1981] AC 1038, 1045.

[6] R v Cunningham [2005] QCA 321, 5.

[7] R v Kitson [2008] QCA 86, [21].

[8] R v Moodie [1999] QCA 125, 5.

[9] R v Dodd [2010] QCA 31, [13].

[10] (2017) 268 A Crim R 240, 251-252 [55]-[56]; [2017] QCA 164.

[11] [2014] QCA 206.

[12] (2015) 249 A Crim R 176; [2015] QCA 27.

[13] (2020) 4 QR 110; [2020] QCA 60 at [9]-[15].

[14] [2021] QCA 278 at [215]-[233].

[15] (1997) 189 CLR 295 at 307–308.

[16] (1988) 166 CLR 59 at 64-66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).

[17] (1988) 166 CLR 59 at 66-67.

[18] (1994) 71 A Crim R 459 at 466.

[19] Section 164 of the Justice and Other Legislation Amendment Act 2020.

[20] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [70] (McHugh, Gummow, Kirby and Hayne JJ): (1998) 194 CLR 355 at 381-382.

[21] A recent example is R v Ponting [2022] QCA 83.

[22] See, for example, R v Jones [1998] 1 Qd R 672; [1997] QCA 132 at 674-675.

[23] R v Stewart [2021] QSC 187 at [43]; R v Wilson [2022] QCA 18 at [33].

[24] See Attorney-General v Kanaveilomani [2015] 2 Qd R 509; [2013] QCA 404 at [12] per McMurdo P, at [58], [61] and [67] per Morrison JA and at [163] per Philippides J (as her Honour then was).

[25] See R v Kowalczyk [2021] QCA 154 at [16]-[18]. See also R v Gray [2010] QCA 161 at [12]-[14] per de Jersey CJ

[26] Penalties and Sentences Act 1992 (Qld), s 13(2).

[27] Penalties and Sentences Act 1992 (Qld), s 13(4).

[28] R v CCR [2021] QCA 119 at [15].

[29] Ibid [16].

[30] Siganto v The Queen (1998) 194 CLR 656, 663-664 [22].

[31] Cameron v The Queen (2002) 209 CLR 339, 343 [14].

[32] Crump v New South Wales (2012) 247 CLR 1, 16-17 [28] (French CJ).

[33] R v Corrigan [1994] 2 Qd R 415; [1993] QCA 417; R v Maxfield [2002] 1 Qd R 417; [2000] QCA  320, 423 [23].

[34] R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, 423 [25].

[35] R v CCR [2021] QCA 119 [18].

[36] R v Ungvari [2010] QCA 134 [30].

[37] R v Torrens [2011] QCA 38 [25].

[38] R v CCR [2021] QCA 119 [18].

[39] R v Nagy [2004] 1 Qd R 63; [2003] QCA 175.

[40] See, for example, R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22; see also R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58 at [56].

[41] See eg R v Olbrich (1999) 199 CLR 270 at [24]; Strbak v The Queen (2020) 267 CLR 494.

[42] See at [33], referring to R v Kevich [1977] VicSC 619.

[43] See at [34]-[39], referring to R v Clark [2009] QCA 361 and R v BCX (2015) 255 A Crim R 456; [2015] QCA 188.

[44] See by way of example R v Walsh [2006] VSCA 87 [22]; Thompson v R (2005) 157 A Crim R 385, 396 [53] and Payne (2002) 131 A Crim R 432, 442 [36].

[45] R v Verdins (2007) 16 VR 269, 272.

[46] Schedule 1 to the Penalties and Sentences Act 1992 lists offences which are “serious   violent offences” for the purposes of s 156A and also ss 161A, 161B and 161C.

[47] Section 214 provides that “A prisoner released on parole is taken to be still serving the sentence imposed on the prisoner”. Section 215 provides that “A prisoner is taken to have served the prisoner’s period of imprisonment if the prisoner’s parole order expires without being cancelled under section 205 or 209”.

[48] Hili v The Queen (2010) 242 CLR 520 at [53]-[54]; Barbaro v The Queen (2014) 253 CLR 58 at [41].

[49] R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345 at [5] per Fraser JA and at [35]-[37] per Mullins J (as her Honour then was), cited in R v Ponting [2022] QCA 83 at [68].

[50] In order for police to require a person to provide their PIN, an order to that effect must have been obtained, under s 154A of the Police Powers and Responsibilities Act 2000, which would usually be reflected in the search warrant.

[51] [2018] 10 QLR; [2018] QCA 18 at [40].

[52] Ross v Commissioner of Police [2018] QDC 99, [77].

[53] Ross v Commissioner of Police [2018] QDC 99, [83].

[54] See R v Field [2017] QCA 188, [38]-[40].

[55] https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2016-084.

[56] Incidentally, Mr Forster was one of the three people who challenged the validity of the legislation in the High Court – Mr Tajjour and Mr Hawthorne were the other two. Forster was the first person to be charged with the offence in NSW. He pleaded guilty, and was sentenced to 12 months imprisonment, with a non- parole period of 9 months. He was subsequently allowed to traverse his plea – although had served most of that sentence. Following the proceedings in the High Court, the charge against him finally proceeded to a trial, and he was convicted and sentenced to the same penalty. It was that conviction that was overturned by the Supreme Court in the decision referred to above.

On 13 June 2022, a ceremony was held in the Banco Court in which the Honourable Justice Lincoln Crowley was sworn in as a Judge of the Supreme Court of Queensland. His Honour is the first Indigenous Australian to be appointed to any Supreme Court in Australia.

His Honour’s inspiring speech included the following salutary observations:

“Amongst the avalanche of congratulations and best wishes that have followed the announcement of my appointment has also been the occasional comment invariably emanating from somewhere in the Twittersphere querying why there has been such a focus on my Aboriginality and why is it such a big deal. Well, the answers to these questions are pretty obvious. Diversity matters. The work of this Court and the administration of justice are enhanced and advanced by having Judges who are representative of the diverse nature of our community, and who are able to bring with them a broad range of backgrounds and life experiences when deciding what is a just cause and how justice is to be dispensed…..Representation for Indigenous Australians also matters. Indigenous people must be represented and involved at the highest levels of decision making across all branches of government, including within the judiciary. Justice and equality demands no less.  More personally, I hope my appointment might encourage and inspire other First Nations people particularly within the legal profession, to aim high and know that they too can achieve their dreams with hard work, dedication and belief in their own abilities. I also hope that the day will come when it is not so remarkable that a First Nations person is appointed to hold an office like this.”

Please see below links to transcripts of the speeches by:

• The Honourable Chief Justice Helen Bowskill;
• The Honourable Justice Lincoln Crowley; and
• Damien O’Brien QC, Vice-President of the Bar Association of Queensland.

Stephen Gerald Breyer served as an associate justice of the Supreme Court of the United States from 3 August 1994 until his retirement on 30 June 2022. He was replaced by the President Biden nominee, Justice Ketanji Brown Jackson. His Honour Justice Peter Applegarth AM of the Queensland Supreme Court provides an insight into Justice Breyer and his legacy, in the context of the “Originalist” approach adopted in the US Court’s recent decision-making.

Goodbye Breyer: public servant and supreme jurist

The recent, momentous US Supreme Court judgments on abortion and gun control have drawn worldwide attention to the Originalist jurisprudence of the Court’s majority and called into question the Court’s public standing.  Even before those decisions, the Court had never sunk so low in the American public’s estimation.

Understandably, less attention has been drawn to the departure of Justice Stephen Breyer.  Yet, his long career of public service and his final dissenting judgments deserve both our attention and respect.

His achievements make me wonder why so many great jurists’ names begin with B:  Brandeis, Bingham and Brennan to name a few. 

Early years

Stephen Breyer was born in San Francisco in 1938 of Romanian and German-Jewish ancestry. 

His father, who attended Stanford University, was the first in his family to attend college and worked for 41 years as a lawyer for the San Francisco Board of Education.  Breyer wears his father’s watch that is engraved with a note about that public service. 

Breyer’s mother was active in community work.

Breyer graduated from Stanford University and won a scholarship to study at Oxford.  He later studied at Harvard Law School, graduating in 1964.  He served as law clerk to Justice Goldberg on the US Supreme Court and later worked in the US Department of Justice’s Anti-Trust Division.

In 1967, Breyer returned to Harvard where he taught until 1980.  He was an expert in administrative law and deregulation of the airline industry, and also wrote extensively about copyright law.

During leave, he worked as an assistant special prosecutor on the Watergate Special Prosecution Force and as special counsel to the Senate Judiciary Committee.

Judicial Career

In 1980, Breyer was appointed to the US Court of Appeals for the First Circuit.  He also served on the Judicial Conference and on the Sentencing Commission, which introduced guidelines to reduce inconsistency in sentencing while maintaining a degree of judicial discretion.

In 1994, Breyer’s appointment by President Clinton to the Supreme Court was confirmed in a 87-9 vote in the US Senate.

Judicial service

The cases that have engaged public attention during Breyer’s time on the bench distract attention from the quality and quantity of his judgments on less controversial issues.  While on the US Supreme Court he has written more than 500 major opinions, many on complex “black letter law” issues. 

His administrative law background and judicial philosophy made him deferential to expert assessments by regulators and evaluations by legislators about the public interest.  He showed a consistent pattern of deferring to Congress, voting to overturn congressional legislation at a lower rate than any other judge since 1994.

I will not detail his contribution to the law on controversial topics such as voting rights, free speech, civil rights, affirmative action, abortion and capital punishment. Instead, I will refer briefly to what Professor Cass Sunstein described in 2006 as Breyer’s Democratic Pragmatism.[1]

This approach is, in part, a response to the Originalism of Justice Scalia and his followers, which reached its high point with the abortion and gun control decisions of June 2022.

Breyer explained his judicial philosophy and approach to interpretation both in decisions and in extra-judicial writing.  They include his book Active Liberty about the right of the citizenry to participate in government.

According to Breyer, central concerns of interpretation include purposes and regard to consequences.  He argues that considering the practical consequences of an interpretation is a way to ensure consistency with the law’s intended purpose.

An engaging three-minute video captures Breyer’s philosophy and character.[2]

Over the years Breyer argued that if the Court ignores the consequences of its decisions, it can lead to disastrous results.  This lesson was lost on many of his colleagues.

In his 2010 book Making Our Democracy Work: A Judge’s View, he explained that judges have six tools to decide a provision’s meaning: (1) its text; (2) its historical context; (3) precedent; (4) tradition; (5) its purpose; and (6) the consequences of potential interpretations.

One might observe that, as in any other skilled trade, one cannot use only one tool on all tasks.

Politicians in Robes

To many observers of recent history, it seems that appointees to the US Supreme Court have been chosen to serve specific political agendas on issues like abortion, and thereby galvanise electoral support for a presidential candidate.

The Roberts Court’s 2010 decision in Citizens United, in which the Court struck down campaign finance laws on a basis that was not argued by the litigants, gave a preview of what was to occur this year.  For example, Mississippi did not initially challenge Roe v Wade.

Professor Ronald Dworkin wrote about the Citizens United case in an article titled ‘The Decision that Threatens Democracy’.[3]

It started:

“No Supreme Court decision in decades has generated such open hostilities among the three branches of our government as has the Court’s 5–4 decision in Citizens United v. FEC in January 2010.  The five conservative justices, on their own initiative, at the request of no party to the suit, declared that corporations and unions have a constitutional right to spend as much as they wish on television election commercials specifically supporting or targeting particular candidates.”

Dworkin exposed flaws in the majority’s decision, its inconsistency with free speech principles and precedent, and its terrible implications. He concluded:

“The Supreme Court’s conservative phalanx has demonstrated once again its power and will to reverse America’s drive to greater equality and more genuine democracy.  It threatens a step-by-step return to a constitutional stone age of right-wing ideology.  Once again it offers justifications that are untenable in both constitutional theory and legal precedent.  Stevens’s remarkable dissent in this case shows how much we will lose when he soon retires.  We must hope that Obama nominates a progressive replacement who not only is young enough to endure the bad days ahead but has enough intellectual firepower to help construct a rival and more attractive vision of what our Constitution really means.”

The “bad days” that were ahead in 2010 were worse than Dworkin probably imagined. They now are recent history.  President Obama made appointments, but after the death of Justice Scalia, Republican Senate majority leader Mitch McConnell did not allow even a procedural vote on the nomination of the distinguished jurist Merrick Garland to fill the vacancy.  Justice Ruth Bader Ginsburg, seemingly thinking she would live forever, did not retire during the eight years of the Obama presidency.  As a result, President Trump was able to appoint three judges to the Court, promising voters that they would overrule Roe v Wade.  This they did in June 2022.

The Noble Lie

In his last book The Authority of the Court and the Perils of Politics, Breyer attempted to preserve the notion that current judges on the US Supreme Court, despite their differences, were engaged in an essentially apolitical exercise.  Professor Laurence Tribe is dismissive of such claims:[4]

“Unfortunately Breyer’s book, surely the least impressive of his considerable body of extrajudicial writings, is not a thoughtful exploration of the virtues and vices of well-meaning deception.  In his stubborn avowal that the Court – even with its current far-right supermajority – remains an apolitical body, he perpetuates a lie that is anything but noble.  I have written much that is entirely positive about his judicial opinions, so it pains me to say that his book reads as though it had been written by someone oddly unaware of the implausibility of its factual claims.”

The June 2022 Originalist triumph and Breyer’s last stand

Much has been and will be written about the Court’s June 2022 decisions on abortion and gun control.  Podcasts also abound.[5]

For some, Breyer’s dissents in those cases may seem as meaningless as a brilliant try or goal scored by a team during a historic and catastrophic defeat in a Grand Final.  Yet, they show a first-class mind at work and a masterful legal technique.

I will note just a few aspects of his dissent in the successful challenge to New York’s century-old law about carrying concealed weapons in public.

By way of background, the US Supreme Court’s 2006 decision in Heller transformed a settled view about the purpose and scope of the Second Amendment.  Justice Scalia, writing for the majority, claimed that historical materials supported the conclusion that the Second Amendment conferred individual rights.  This was shabby history on Scalia’s part, as Justice Stevens in dissent explained at the time.  Since 2006, historians have exposed Scalia’s purported reliance on the historical record as overwhelmingly against the weight of the evidence.

Scalia’s judgment in Heller was the subject of a careful analysis in 2018 by Justice Glenn Martin which can be accessed here.[6]

Justice Breyer’s recent dissent begins with some devastating evidence about the problem of gun violence.[7]

He respects the ruling in Heller and upholds the New York law by applying Heller’s two-stage test for constitutional validity.  This was a test that Scalia developed in Heller so as to allay concerns that many widely-accepted gun controls would be rendered unconstitutional.  The Supreme Court’s latest decision abandons the two-stage test.

Breyer’s dissent carefully dismantles the majority’s Originalist argument and its excessive reliance on historical analysis about the type of regulation that was envisaged when the Second Amendment was passed. 

Breyer also raises the following practical problems with the approach of the Originalists:

“The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions.  Consider, for example, the following.  Do lower courts have the research resources necessary to conduct exhaustive historical analyses in every Second Amendment case?  What historical regulations and decisions qualify as representative analogues to modern laws?  How will judges determine which historians have the better view of close historical questions?  Will the meaning of the Second Amendment change if or when new historical evidence becomes available?  And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?  See S. Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. Rev. 1095, 1098 (2009) (describing “law office history” as “a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion”).”

Breyer’s deference to democratic, evidence-based assessments in complex cases is a refreshing alternative to the Originalist obsession with what form of gun regulation was tolerated or envisaged in the 18th century. 

The majority suggests that concealed weapons can be controlled in “sensitive places” like courthouses but leaves the citizenry to speculate whether subways and planes also are “sensitive places”.  Sadly, no one was thinking about those places when the Amendment was passed.  The Amendment was anchored in the need to arm a militia in defence of the republic, not the supposed individual right to conceal guns on trains or planes.  Regulation of guns was accepted until recent decades, even by the NRA, until it began to wield money and political power at elections and to challenge in courts the validity of long-standing gun controls, aided by judges like Scalia. 

The new majority’s decision is based on dubious historical analysis (as Breyer points out) and a disregard of purpose and consequences in the task of interpretation.

On the central issue in the gun case of balancing the interest of people to have guns for self-defence and other legitimate purposes against the scourge of gun violence, Breyer wrote:

“Balancing these lawful uses against the dangers of firearms is primarily the responsibility of elected bodies, such as legislatures. It requires consideration of facts, statistics, expert opinions, predictive judgments, relevant values, and a host of other circumstances, which together make decisions about how, when, and where to regulate guns more appropriately legislative work. That consideration counsels modesty and restraint on the part of judges when they interpret and apply the Second Amendment.”

Modesty and self-restraint do not feature in the majority opinions.  But they are important qualities for judges, and not only when they encounter difficult questions about historical materials from the 18th century.

In response to Breyer’s dissent, Justice Samuel Alito took a cheap parting shot at Breyer by noting that the New York law did not stop the recent mass killings in Buffalo.  Breyer did not claim that it would.  Instead, he pointed to the purpose of the New York law, and the scope that the Second Amendment gives to States, in accordance with Heller, to regulate guns in public places.  Crowded States like New York can choose to have different concealed gun laws to a State like Montana.  It’s called democracy.

Viewed from this side of the Pacific, the Alito–Breyer spat seems to boil down to this:

1. Alito says people are afraid of being attacked and so mostly enjoy the right to have as many guns as they like, just about anywhere they like.
2. Breyer says that people are afraid because there are too many guns in society, and States should be able to regulate them so as to reflect their citizens’ legitimate concerns about gun violence.

Breyer’s legacy

One hopes for the sake of American democracy and the rule of law that the two recent decisions of the Supreme Court have not placed that Court beyond repair and devoid of essential public confidence.

Historians will argue whether the 50-year period between about 1950 and 2000 were an exceptional period in the Supreme Court’s history, and that in recent times it simply has reverted to its historic role of being a brake on democracy and the realisation of individual rights.  Many of us for most decades of our lives have known a US Supreme Court that generally extended voting rights, ended racial segregation in schools and public places, championed free speech, upheld privacy against arbitrary intrusion by the State, introduced due process rights in the criminal justice system, and respected the autonomy of the individual. 

The idea of the Supreme Court taking away rights is unfamiliar.  Yet, it involves the simple notion that what the Court gives, the Court may take away.

Some analysts are inclined to contrast the bipartisan support for Roe v Wade on the Court in the 1970s with the hyper-partisan 6–3 division in 2022 that overruled it.  Others will say that Roe v Wade set in train a political movement that irreparably politicised the Court along fracture lines that run deep in modern America.  They also will say that this has now exposed US Supreme Court judges for what they always have been: politicians in robes.

Whatever the merit of these arguments, and the comparison with the path abortion law took in this country and other democracies, it is sad that judges like Stephen Breyer are tarred with that brush after a lifetime of public service and fidelity to the rule of law. 

Breyer’s jurisprudence, both on and off the bench, has recognised the role of the Court is keeping the channels of democracy open by ensuring free speech rights, limits on campaign finance so as to aid public participation, and controls over anti-democratic gerrymandering and voter suppression.  His decisions defer to other branches of government, while preserving the Court’s historic role in protecting the constitutional rights of individuals and minorities.

Breyer’s achievements as a tireless but cheerful servant to the law should be remembered.  He deserves more than to be counted as one vote on a team that lost the big games 6–3 at the end of his career.

If there is any hope for the Court to get out of its present predicament, it is that Breyer’s replacement on the Supreme Court is a jurist of similar qualities, who happened to serve her apprenticeship as his clerk.[8]

Anyone who witnessed Justice Ketanji Brown Jackson during her confirmation hearing in March this year saw a woman of remarkable ability, composure and integrity.  Her words about her sense of isolation as a first-year student at Harvard and the need to persevere are inspirational.[9]

The judicial baton has been passed by Breyer to a new generation.  Another democratic pragmatist, concerned with judicial methodology rather than ideology.

The work of Stephen Breyer should not be forgotten in the brave new world of Originalism which has diminished the US Supreme Court both at home and abroad.

[1] Cass R Sunstein, ‘Justice Breyer’s Democratic Pragmatism’ (2006) 115(7) Yale Law Journal, 1719.

[2] Stephen Breyer, ‘How do you interpret the law?’ (5 July 2007) Big Think. Available at https://bigthink.com/videos/how-do-you-interpret-the-law/.

[3] Ronald Dworkin, ‘The Decision that Threatens Democracy’ (2010) 57(8) New York Review of Books.

[4] Laurence H Tribe, ‘Politicians in Robes’ (2022) 69(4) New York Review of Books.

[5] See for example, Amicus with Dahlia Lithwick, ‘Just Doing the Job They Were Put on the Court to Do’ (25 June 2022) Slate. Available at https://slate.com/podcasts/amicus/2022/06/dobbs-is-the-beginning-not-the-end.

[6] Glenn Martin, ‘Guns and judges: Antonin Scalia and the right to bear arms’ (Selden Society Lecture, 3 May 2018). Available at https://legalheritage.sclqld.org.au/2018-lecture-one.

[7] New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022) at page 1 of Breyer J’s opinion.

[8] For a charming insight into Breyer’s daily work with his clerks, see C-Span, ‘Justice Breyer in his Chambers’ (7 October 2009) YouTube. Available at https://www.youtube.com/watch?v=ADocyeUaxZ8.

[9] C-Span, ‘“Persevere.”’ (24 March 2022) YouTube. Available at https://www.youtube.com/watch?v=w6gUP3XxbjA.