Donald Roy Tait & Michael Leonard Bartley v The Queen [1979] FCA 32

Practice in Northern Territory - illegal importat_on

of large quantity of cannabis - Organized crime -

Maximum sentences - Dete

tH

vent aspect of punishment in

iS

cases involving lawlessness on a vast scale - Purpose of non-parole perzou - Lesser participation by cco- accused - Disagreement between prosecuter and defarncant

as to facts - Evidence to resolve Gisagreoment -

Customs Act 1901 (Cth.), s.233B(1) (b) - Federal Court

of Australia Act 1976 Cth.}, s8.24(1)(p), Z8(5) -

Parole of Frisonezs Ordinance LO7l (N.T.) - Parsle of

Prisoners Ordinance 1976 (iN.T.) - Priscners Act 1967 (Cb.

Open court - Applicazion to sit in camera - Common lav rules - Communications in chambers - Procedure when

Court authorized to sit in camera - Northern Terri-ory

at

Supreme Court Act 1961 (Cth.), ss.13, i4, 15 -

Evidence Ordinance 1939 (N.T.) ss.57, 58.

THE QUDEN v. DONALD POY TAIT AND MICHAEL LEONARD BARTLEY

No. NTGG of 1978.

Coram : Brennan, Deane and Gallop JJ. Sydney

1 May 1979.

IN THO FEDCRAL COURT OF AUSTRALIA NORTHERI VERRITORY DISTRICT REGISTRY

)

)

) No. NIG 6 of 1978 GENDRAL DIVISION )

ON_APPEXT, TRO" THD SUPREME COURT OF THE NORTHERN TERRITORY

BETWEEN : THE OURE.:

Appellant

Bf

AND : DONZ.LD HICHALI

Respencents

JUDGES MZLTNG OPTIR : Breanan, Deane and Gallop JJ. DATE OF CRDLR : 1 May 1979,

WARE ade

Sydney.

THE COURT ORDRPS THAT :

1. The appeal from the Supreme Court of the Mortnern T.rritory against the sentence linposec upon Donald Roy Turt ky the Honourchle Mr. Justics Muirbead on 3 May 1978 whevebr

the said Denald Roy Tait was sentenced to be imprisoned wach

herd Jubour for tne space of 6 years and § calon"ar mouths with @ aon-prstole p2riacd of 2 years, anc 9 calendar months be alJowec und thas the centence pe set aside ani crac an deen thesxcof the 312d Bonelu Poy Tart be sentene rs te

imprisen onc with nard laloar for a per1os of @ yrer: and

8 monthe tu commance on the dete oF the settenca unr eaca

upon him by the Supreme Court of the Northern Territory

and that a period of 4 years and 4 months be specified

as the term during which the said Donald Roy Tait be not eligible to be released on parole in pursuance of the

Parole of Prisoners Ordinance 1976 (N.T.).

2. The appeal from the Supreme Court of the Northern Territory against the sentence imposed upon Michael Leonard Bartley by the Honourable Mr. Justice Muirhead on 3 May 1978 whereby the said Michael Leonard Bartley was sentenced to be imprisoned with hard labour for the space of 3 years and 8 calendar months with a non-parole pericd of 1 year and 6

calendar months be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA )

- ) NORTHERN TERRITORY DISTRICT REGISTRY)

) GENERAL DIVISION )

No. NTG 6 of 1978

ON APPEAL FROM THE SUPREME COURT OF THO NORTHERN TERRITORY

BETWEEN

THE QUEL*

AND

CORA'S : Brennan, Deane & Gallow Ju.

the First day of May 1979.

THE COURT

Donald Roy Tait and Michael Leonard Bartley wer charged on indictmant before the Supreme Ccurc of the Northern Territory with the offence of importing into Australia a

prohibited import contrary to s.233B(1) (>) of the Cuszom7 Act

1901 (Cth.). The particulars lazd in the indictienc were that on 22 January 1978 tne accused using a lignt aivcrafe landed near Katherine in excess of 143.2 kilograms of cannabis in tie

form cf prepared sticks which had been brought there by them

11/2

from outside Australia. To this charge they pleaded guilty. Tait was sentenced to be imprisoned with hacd labour for

6 years and 8 calendar months with a non-parole period of

2 years and 9 calendar months. Partley was sentenced to be imprisoned with hard labour for 3 years and 8 calendar months with a non-parole period of 1 year and 6 calendar months. The

Crown appeals against the sen

this Court should increase each of those sentences.

Crown appeals against sentences have no tradztional

Lalian S

Q o tei bat) fu Fy} . mz ity) < tw h t iP) a fy ds th ty o fe) t be wv Lf) Hwe a

s.5674; Craminal Code 1924 (Tas.)

1899 (Q1d.) s,669A; The Criminal Code 1913 (W.a.) s.698(2) (d}-

and see also the Constitution, s.73). Prior te the enactrens

of the Federal Court of Australza Act 1976, no appeal against

sentence could be brought by the Cirown against a sentence imposed by the Supreme Court of an Australian Territery. The jurisdiction conferred upon this Court by that Art includes jurisdiction to hear Crown appeals against sentences imposed by the Supreme Courts of these Tercitories (3.24(1) (b) and

s.28(5)). These were the first epreals agzinst sentence

=

instituted by the Crown under the Fedsral Court of Auctralia Act,

and 1t 18 appropriate to refer to the princigles to ke cbhserved

by the Court in the exercise of tne jurisdiction, Y 3

.-+/3

The relevant provisions of the Federal Court of

Australia Act do not provide any basis for distinguishing

between the general principles to be applied by the Court

on a Crown appeal against sentence and the principles to be applied on an appeal against sentence by a defendant. Ths principles which limit the exercise by an appellate court

of its jurisdiction with respect to a discretionary sentence apply in each class of case. Those principles were expressed

in Harris v. R. (1954) 90 C.L.R.652, which was followed b:

this Court in Kovac v. R. (1977) 15 ALR 637, and which contains

a citation fron Cranssen v, the King (1936) 55 C.U.R.499 at po.

519, 520:

" ...the appeal is frou a @zscretiorary act of tne court resroneisle fox the sentence. The juris@ictizn to revise such a @lsoreczion mest de exercised 2n accordance with recognizes principles. Tt is not encuvgh that the menkers of the ccurt would themselves have imposed a less or different sentence, cr that they think the sentence over- severe, There must be soma reason for regarding the discreticn confided to the court of first

instance as aumproperly exercised, This ray appear from the circumstances wnich that court has taken into account. They mav include some considerations which ought not to have affected the discretica, or may exclude cthers which ought to have dee so. The court ma; have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views oc opinions which are extrere or misguided. But it 1s not necessary that dejinite or specific exror should be assi The nature of the sentence itself, when « in relation to the offence and the ec1re uw of the case, miy be such as to afford convi evidence that 1n some way the exercise of the discretion has been unsound, Ia short, the principles which guide courts of enpeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sencence anpears unreasonable, ? or has not been fixed in tre due and proper exercirce of the court's authority."

Own tpsdo nom r osu

@) w fon

a

iv) w foo Gasou k

ns 2 O

4.

An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if 1t be shown that the sentencing judge was 1n error 1n acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judee sa:d in the proceedings, or the sentence itself may be so excessive

Or lnadequate as to manifest such error. (See generally, Skinner v. R. (1913) 16 C.L.R.336 at pp.335-540; R. Vv.

Withers (1925) 25 S.R.(N.S.W.) 382 at p.394; Whattsker v. R.

(1928) 41 C.L.R.230 at p.229; Griffiths v. R. (1977) 15 AER 1

at pp.15-17).

appear befors tho appellate court will iuntecvane in en appeal exrther by the Crown or by a defendant, a Cron appeal razses considerations which are not present in an appeal by a defendant seeking a reduction in his centence, Crain appeals have been described as cutting across "tine-

honoured concests of crimina? adi unistration"" (cer Barwick

C.J3., Peel v. Tre Queen (1971) 125 C.L.Rk.447 at p.452).

A Crown aopeal puts in jecpardy "the vested intexrett that amar. has to the freeder wuich 1s his, subject to the sentence cf tho primary tribunal" (per Isaecs J., whitteher v. Ro, Supra at p.248). The fieedom beyo:u.ca the sentence imposed is, for the secend time, in jeopardy on a Crow

appeal against sentence. It was first in jeopardy before

the sentencing court,

2-fd

It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, 1f the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error, The Crown has been said not to be concerned with sentence (sec, e.g.,

Lawrence J. in Paprika Limited v. Board of Trace (1944)

1 K.B.327 at p.332), but when a statutory right cf aposal us conferred upon the Crown, that proposition must be morc precisely defined, It remarns true that the Cro.m is required to make its submissicns as to sentence fairly

and ia an even-handed marner, and that the Crown does not, as an adversary, press the sentencing court for a heay sentence. The Crown has a duty tc the court to assisz it un the task of passing sentence by an adequate presentation of the facts, by an appropriate refurence to

any special principles of sentencing whicn might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as 1t arpen.s to reguire it. If the proposition that the Cron 1s ret concerned with sentence was ever construed as absolving the Crown from this duty, 1t cannot be so construed when

a Crown righ: of appeal ayainst scntence 18 con The Crown is under a duty to assist the court to avoid

eppealable error. The pexforirance of that Cuty to the

couct ensures that the defendent knows the nature and

22/6

extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crcwn to discharge that duty may not. only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which

t to

Ww

might ultimately be made on appeal. It wovld be unju a defendant, whose frecdom is in jecrarjy for the second

time, to consider on appeal a case made against him on 2

before the sentencing court. As McClerens C.v. at C.L. said

in Reo. v. Jaccui>, Geliverirg the 3

Wales Coust of Czuar.al Appeal (15 B

",..we woulce not seer to encourag which meant that cases were bre s.5D of the Criminal Asve2al Act were not argu beLo 12 JUGS!

Altnoush the existence of error 1s the comron ground which entitles the aprellate courr to in:ervene in appeals by the Crown and by a defendant (cf. R. v. Butler

[1971] V.R.892; R. v. Liesefect; De varie the Actorney-General

[1973] Qd.R.355), there would be few cases where the appel court would intervene on an appeal against sencence to corcect an alleged error by increasing the sentence if the Cron fad not dene what tas reasonably requ: red to assist the sentencing yuage to avoid the error, or 1f the defondant vere unculy prejudiced in mecting for the first timc on appeal the ctruc

ease against hin.

2esf7

In the light of these general observations, we

turn to the present appeal. A number of errors was said to be revealed by the reasons given by the learned sentencing judge for the sentences imposed. But his Honour''s reasons express no error of principle, nor any error in the understanding of the facts (although the procedure for ascertaining the relevant facts gave ris= to some unforcuncte

difficulties to whach reference 1s made belo.). The Crown sought to demonstrate an error of tae relewanc kind by

sub.witting thac the sentences inmposzd are menifestl

in comparison with the ranoe of santerces said tc be approrsriates to the offence and the circtumstancis of cach Gefendant's case, It was further subritied thet, in Dartley's cise, a sontencing principle which was applicable in the circ arscances, and to which reference will presently be wade, musz have been overlooked by the learned santéencing judges. The principal facts of the case were furnished to the Supreme Court by statements rade by counsel from tne bar table, and by the tendering of sorc documentary exhibits including records of interview given by the defendants. No sworn evidence was adduced, Some further faccs relevant Talt's sentence were communicated to the judse in chambers by counsel for Tait in the presence of counsel for the Crown. When this appeal was first argued, 1t was unders ocd that the discussion between the judge and counsel in chambers related solely to the unsuccessful making of an application by

counsel for Tait that the Court be clesed to allow him to

deal with some matters confidentially, The transcript of the proceedings in the Court suggested that that was the only matter discussed in chambers. Hovrever, after

judgment had been reserved, the appeal was, at the request

)

of counsel for Tait, relisted and we were infvorred that Matters relevant to Tait's sentence had beer. discussed in

chambers. We acceded to an application to invita the

= 1D

arnead sentensin edge tc suprit @ report, and his Honour 3 r

furnished a report relacing to the cuankey Giscussiors., as

it appears from that repovt that the record of procee before the Su Macterss waich wer and that he gave weight to wouec counsel hed cella nor in chambars, a qGuesticn arises as to whacher in Ceterrin.ag

this appeal we should take into accoane the metters to

by a P re) ry K 0) th @ I¥ oOa in) anin [ery ay B i" Q, f ey fe 4K 5)

Counsel attended in the judge's Giaimecis to discuss the grounés of the application to closes th2 court, Wnen ccunsel were in charters, his Honour in¢cicat-+é thar he considered that 1f there was materral to be coaveved in confidence, this should occur in chambers, rathei thoi in a closed court. Counsel for the Crown advised thee Eco had no objecticn to tn1s ccuise. Counsel for Tait then +a 2 certain submissions to his Honour relating t2 tn renseas for applying to close the court and to ratters woich should

be taken into account in Tait's favour. The judzs @

counsel that he would take the submissions into account, although he would not make reference to them in his remarks upon passing sentence, The record of the proccedincs

before the Supreme Court did not disclose, and was caéiculate2a

#]

not to disclose, the nature of the discussions in chambers. No "'ritten record was kept of those Ciscussicns but his Honour's report, amplified by a further agreed stateman- of facts (Exhibit A), conveys to us a general understan"ing of the matters discussed. We are constrainea to take those

matters into account, net because? the matters discussed

relevant facts, now furnished to us, wire furnishes to nis

Honour by a procedure which, Tait was assured, it was appropriate for him to folloy in order to have tnese matters considered, It would be unjuse for this Court to igners the mitigating circumstances of whica w2 heve been iuntovrad end which the Supreme Court teok into account merely because the procedure adopted by the learned sentencing judse, with tne consent of both counsel, was not consonant with the procraure which ought to be followec in -vriminal cases. Later in this judgment, we enall r2fer to some of the principles wnaici govern the course which a court should take wher an application is made thet it sit in carera. For the moiect, it suffices to nove that the material whieh we have, at the

request of tne parties, taken into accounr in Cecidiny tre ta

«+-/10

10.

appeal in Tait's case includes information furnished to us by the learned sentencing judge in his report, and an agreed statement of facts (Exhibit A) furnished to us by the parties in amplification of his Honour's report. Although these documents were referred to or received in open court before us, we have thought 1t right net to reveal their references te Tait. Accordirgly, wa have prohibited their puplication until furtier order, and directed tnat they be surtanly kept an the registry. This coursa has not affected public access to

the princisal facts of the case which were publiciv

commences a@lour 12 mouchs before the occurrence c

time, Tait's ccunse] said, Tait was app: ehended and

@rugs, and a syndicate of persons assisre? him in fleeing from that country and thereby placed hir under an obligation to undertake a flight from Bongkok to Australie carrying drugs. Tne svrdicate which hsc rencered hin

this assistance put the prerosal te him in Bangkok.

iv]

Tazt's record of anterview, thich his counse

ct oO

According took to be an accurate statement, in ovr abcut October 197 he was approached to fly a lezd of buddha sticks into

Australia. Budcha sticks are the flovering teps cf the

kiva bound arcund a bajiboo tw

Q

fu

plant cenncikhis sé

ll.

Tait agreed to the proposal. Money was advanced to him to pay his fare to the United States and to pay a deposit of $5,006 on the purchase of a suitable aircraft. He found such an aircraft at San Jose in

California, paid the deposit, secured a contract, and

returned to Bangkok. He was then given some additional

funds to pay the balance or the purchase price, In

November 1977 he again went to the United States. There,

after the aircraft was fitted with long raage tanns a

cost cf a couvile of thousane dcllars ar? a C.&. radio

where he arvuved on 31 Decemtes 1977. Tne @éilrcratc w then placed 141 a hangar for rigular Maitrenaice, Tar

checked on the

S

regress of the Mainsenancs from crise time and then sent a message to Sydney For "some youn fellow" to be recrurtzd as an assistance on the fFligne

Australia. He was furnishad fron Sydney with Bartiey

abad Tw un ci b a ~ k a]

mame and adcress and, in mid-January Syd-ey a pre-paid ticket to Bangkok. Bartley, us ng ticket so provided, travelled to Bangkok on or about

January 1973. Tait nad booked Bartley in at the Irre

tL

J

t+

a

Hotel, Bangkox, and met ham on arcival. Tart tock Parcary

to see the aircraft so that be could fanslrarize hans

with at. It aprears that Tait reyurred Bartlay to render DE Y

assistance with the fuel system in th: azrcraft. RBastley

and Tait were to travel on fals- docuients. Tait was

travelling under the nare of Peter Arthur Jones on a

12.

New Zealand passport and had an American pilot's licence in the same name. According to Bartley, Tait had prenared false prlct's licence and aircraft crew identificaticn documents for Bartley. Bartley had no flying skills.

Tait and Bartley lefc Bangkok on Saturéay morning, 21 January 1978. Tait said that when the aircraft Cceparted from Bangkok, it was carrying aprroximate compressed budcha sticks which was the rannwnm quantity that the arrcraf:s could cerry. Tlie sard that the curso was load. 2 by cther persons in Bangkok, and thet he fle- fron the: = te Brunel on the first leg of his jouseney to Australnra, Bartle' on the ctacr hane, in ars sgece7d recocd cf anzervic: said

that tas asrerant zt laadec at an ALr Force flying time fseemn Bansko. and the wlene ves tisn leaded we ta budé@hea stichs which were broeuvht ont in a Rersi bee by four Thaz min in green unirtozrrs. In th:s rec -ré of intearviay

Bartley said he loaded the lurzace ccm tzt +t of the plane ¥ TIE '

with tin boxes containing the buldia sticus.

local time and stayed there overrisht. Tair refuelliad the

leted customs forralltres end submitted a

flight plan to the Borneo autho:ities. It wos a faise Flichs I

nsteac cf follori

vw tie: flacht plea Furnisiv;] to the Botneo autherities, Tart fle: the arrere "t on t..g mMorneng cF

22 Japnery 1978 towards the Northorn Territory. he Pace

a -

rea1o contact with a number cf air navigscion actheorir

-.-/13

iD fon e uw {os 3] st o tMt > a vp ya t " t

and gave them false position reports.

13.

cross the Australian coastline about 60 miles west of

Darwin but in fact he crossed

Darwin.

by radar at the Darwin airport, and was intercep RAAF Hercules aircraft which was diverted for the

from a flight from Butterworth in Mala:

The Hercules

it about 10 miles

sia to

amin

He entered controlled airspace, was detected ted by

purp

west of

a

fclicv-ed Tairt's aircraft southward for secre

distance, The Hercules rolled 1ts winss thicr Toit understoed to signal "follow me" put he did not follore that instcuctien as he had he-cd the Eartules ¢1risins & raéz> tha. 2t hac cnly 3 heurs' endararce, and Tait decided to continue wrth his £lignat 1a tae hope tnntc tne Herevles would hare to return fcr Lucl.

Tait expeccod to reccive advice afeer he crossed the Australian coastline drececing hin a Gesignated Janjirg spect where his aircraft world be unloaded and refueiled by a ground party. It waz that Barcley should leave him at that spot and thac Tait, should ixmediateliy return to Brune.

By

survelllance

estimated that he

Ue decided

tne aircraft and welk

14 or 15 kilometres

to land clo

wnere he coulé

to a road

Ha foul

a

rine, had Bartley

«2 -/14

He had intended to

OSse2

bu

14.

the fuel line, landed the aircraft, disconnected the

fuel line so that there would be a flow of fuel and fired five Verey pistol flares into the aircraft 1n the hope

of destroying 1ts ccontents. The aircraft wis virtually destroyed by fire but only part of the contents was Gestroyed. Tait and Bartley walked through the semb until they came to a road which they thought would leaa

to Katherine. They followed this road un

tt In Ia + te Cc KS QO [*)it]

to the Stuart HBighray. Tnrexe they parted emstany. Tail

gave Bartley $100 and instructed hin to cc into Katacrire2

and to telephe:e Tart's «if2 in Sr

Tart went aicrys the Stevan: a quarter Of a mile then went onto the sereb ard hid. Thee was or the Sunday might. He stev3a ticre atl Cay Moudey, and witked novcnwards along the Stuart Eagh vay tov ares

qt th

Darwin for mest of the Mordavy nigat, moving into the sercb 2 Ss: c

whenever a car came past. He had eaten nothing sinze

Saturday night in Brunei. On the Tuesday rorning he

decided he wevld give hirrialf up when he sav tha right

i) d Tw

uD

~~

ss wn jv

su re)

» 4

iv)

y

fa

ui

is)

t-

at)

—

oc re}

.

ee)

om if) ue]

Oo

pp

be

iv]

@

4K

Qa

(e]

a q

i

Kh

w

aly

Pa)

Gy

ao

his paynent for p. cticipation in th? cnterpiise. He saic

15.

that he had already received about $US10,000, the major part of which had been outlayed in the purchase of the aircraft. He was asked whether he was to receive any further moneys afters he completed the trip to Australia and his reply was "Yes, $10,000 making a total of $50,0CG and

Maturally the arrcraft was remaining my proporty". Towards

which the Crown necessavsty (src) acres Gr 1mcvLtss your

Honecur to ace pt", no evidceic2 wig cilisd, Taic ga c no evidence and the ficces presented to the senate... SF guage pv

the Crown secn to hav: deen founcd¢d on the 1aformra rcp fura:rsved by both respondents te the investigators. In Outlining the facts from the bar table, cow:sel for toe Crown recited whac each accused had said in records of intervie.

Following the practice 1n the Northern Territory his hcnosur

n the submissions of ccurns2l for Tait, thosgh he

Q

acte

G

up would have keen entitlee to require evidence fread Tait és 'to the extenc of his involvenant, 1£ Tait wished to avoie Punishuent by attrabutiag the over-all entrecprenturiai isic

an the venture to oticr partictisercs. Tovover, his Homoer

mitethion

a

did accept that Tast's rola was roscerict-d to the orca of the transport, the recrurtment ct Bartluy, and the flying

of the airreraft,

~+-/16

16.

The facts in Bartley's case were placed before the Court by submissions from the bar table, by the tendering of two records of interviev given by Bartlev, and by the tendering of a transcript of the remarks mace by a Stipendiary Magistrate on 14 December 1577 when

F

sentencing Bartley in respect of two earlier offences

un Syaéney in 1977. He was offared a jyeb in bha Northern Terricory vo work as a labsurar, to hele in toa procuce on ci a substantisel getacity cf cannsebis., His farc fxer Sydney te Darvin w

he was cserced

cannabin and cf

the charce cf p

orésred t

Lo)

be ivprisoned for 8 rsnths, buc the sencerwee of imprisonment was suspended fort).1th ween his en ering

1zance in the sum of

anco his cwn recoer

(e) K a) C} ty ur Qct i ) aa h va) W

gocd bchavicus for a period of t

Met Victor Tait, wrth whe... he had bzen to schcol.

Victor Tait 15 tne son of Donald Tait. On 14 Jannery 1478,

--/17

17.

Victor Tait offered Bartley an opportunity to travel to Bangkok in order to accompany Donald Ta1t ona flaght from Bangkok to Australia carrying marihuana. Bartley accepted. Victor Tait told Bartley to pick up a prepaid ticket from Qantas in Sydney. Bartley @id this on 16 January 19798. He left for Bangkok on 18 January 1978. Donald Tait met him at the airport and tock him to the Imperial Hstel and gave him 1,000 baht, which 1s about $59, in ad&ition to pa

expenses, Tait cook hin our to the Bangks< airport and

Australia He forged 2a cat2t priot's licence aria GAA identiiication Cird for Barvle:, using sore

confirmed Tait's record of interviey as to the €.cnts of the flight to Australia, excent for the allezs landing at an Air Force b2se where tne cardboard Benes and tin containers conzairing buddha sticks were loade After Tait landed the plane in a field necr Kathevrise, Bartley knev that Tait pulled a petrol line of. and he saw him shoor three fleres into the cak.n wreca sv varos a small f1re in the ivterisr of tne plen:. Bartle; ard Tait parted company. Tait gave hir $100 anc went into Katherine. He wis arproached by police, but

he gave a faJse account of hircolf. We rang irs. Tait

oo e/18

18.

in Sydney cn the following day. He was appre!:ended

at the Katherine post office. He gave a record of interview to the police 1n the eaxly hours of Tuesday 24 January in which he gave a misleading account of how he cane to be in Katherine, saying that he had been employed to drive to Sydney a vehicle loaded with

marihuana, The statement which adritted corplicicy in

the flight from Bangkol: to Darvin wus giver. on Tuesdzy aftecucen, 24 January. Bartley's couns2]l informed ti : learned sentencing judga, herever, tuar our part of the csconad reco:d of 2taterviaw whieh. allaesad a Landi: 5 atoan Airy Force base to pret up the biadkhe sticts wos untras. Altncugh Bartley gave no oo ndenca tne learnti

sentencurg jease acted uven councsl's scatcrenc restliag

sentence I would impese." In his first recerd cf interview Bartley said he was to xacsive $1,090 for h 3

services, 1.¢@, for driving a vebiciz to S

for tne scrvices to which he admirurd an his second

misenderscanding by counsel] for Reinley es to Bartles's

course cf pessing sentence, tne learne] soatencanc

sald:

oe eID

19.

"I am told, and for the purpose of sentencing you, I will accept this, that in addition to the free trip to Bangkok you anticipated receipt of $1000 or thereabouts, This may or May not be true, but it does not matter much. I accept your counsel's submissions that you are a small fry in the general organization, that your main role was to assist in the fuelling process and to keep Tait company."

When a plea of guilty avcids the necessity for a trial, it is no dovbt ce:.venient for the facts relevant to

sentence to be stated from the bar table to the extent to

to challenges, are unchalleroed. But 1f one of the parties

invites the court ¢o act upon an olleged

whetney Exvouravle cr untavouracle to tha defaniant. which 1s not common ground botveen the Cacvn ord the @oZe: dont, thas fact or circumstance shoald be proved by, the caltiurc of eviGace by the party on whor the evice .tiary onas rists. The struct rules of evidence can ba waivad 1= the prcof teaderad 1s Sufficiently cogent, bet a finding on ths relevant metter crrnst

be sought in reliance merely upon an unstpportet ata cknen fron

the bar table if the truth of that assertion is not acceptes by the other party. (cf. Lovelock v. R. (1970) 19 ALR 327 @% pp.332-333; R. v. Kane {1974} V.R.759 at p.762). In iac

case, however, no evidence was calleé to reselve the cholleijec or doubtful issues, In the circumstances, ve think we shoul Geal witn these an;e¢2ls of the besis, favourable to eacn

Gefendant, which his Yoacer aéentel.

20.

Even so, Tait's own confession shows that his participation in the crime was of crucial amportance. He was involved in the smuggling of cannabis on a vast scale. He planned and arranged the flight into Australia by which the cannabis was imported. Tait denied that his part extended beyond transportation, and he attributed the over-all

entrepreneurlal rele to cthers. The chacge 1ust him,

however, was ampo "ting nirectic geeds. In

of that crimrms, he wes the principal

elecumscances whicn undid the pla: cf surseptztucasly amporting a fall load cf budéi.u stircoxs iunzvo tna lightly patrolled aveas of norchern Aistralia. Tne act of

umportiig involved @ disregaci for aly navigatiin

en

proceduras in an attempt to avoid deteclicn and a

defirance of the Ge2fe

transvortation ints Australia and Gistejkusstn wrruin

lial weet

21.

The mere recital of the essential facts makes it clear that Tait's offence, at the least, approached the worst class of offence against the relevant prov.sions of the Act. It needed nc submission from the Crown to make it clear that the circamstances of the offence were such as to require that consideration be given to

the impositicn of the maximum sentence.

The maximum penalty prescribed for the offence of which the defendants were convice:d 15 a fine net

exceeding $300% of imprisonment for a period ast @xceed1i

10 vears, or borr (Custome Act LOC], ¢.235(2) (c} (21), 35

amended by the Custors Avondr ont Act 1! respecec of the illegal immertaticn of any narcotic geocs, there being no dzistriction between ci.nabis and other narcotic goods (s.235(1)(c) pricr t> the amencrentk).

Whon the amending Act came anto force on 10 Novencer 1977, a ney penalty provisicn was sunpstitutec for s.235(1)(c). The maximum penalty in respect of the 1llegal imporca tT of narcotic goods othex then cannebis was increased to a fine not exc:ading $100,000 or imprisonment. for a period not exceec¢ine 25 years or both, and é new provisron desir; particularly wich cannanis incortée tion was inserted. Although the new provision G@id prot increase tha Teal prescribed in respect of the import vizsn of cannch1s above the meximum previously preseriv2d in respect cf the

importation of any narcocie gocds, 12 removed the iilezal

22.

importation of narcotic goods other than cannabis from

the class of offences for which the old maximum is applicable. This amendment effectively increased the range of sentences which the courts would impose in respest of the lllegal importation of cannabis. The common maximum penalty repealed by the 1977 amendment may have been reserved for cases cf importation of heroin or other drugs of a more destructive nature than cannabis. Although in

Reg. v. Peal (1971) 1 N.S.W.L.R.247 at pp.256,257, it was

said that the Court's attitude to sentencing under §$.235 (1) (ec)

was not to cistinguish betveen cannabis and cther drugs such

kh. ve Jackecn (1972) 26 O.T.R.120 en -p.1it,iia*. As tie Full Cours cf the Supre:ne Coari of Sc LP

Jackson's cave: "... a court faced wrtn the ronce of

that all drucs referred to are equally harmful". That Court held th traffreking in Jess harmfal crucs wes

less serious" than trafficking in other drugc im contra 'caziorn of s.2328 of the Custers Act. Althevshn tne 1 increascd the rance of penalties which might be imvosed, the sentencing discretion 18 exercised eccording to tnr.. Carcumstances of each case,

A maxinun Genalty 1s raservad far the woress typ. of case falisng within the relevent prohiznition. The

Ge

cbzervarce? cf this principl: provi

sentenciayg which sccutes prwnurtien cal cor parabziiry etary

23.

sentences imposed (see R. v. McMahon (1978) 19 ALR 448),

The prescribing of a maximum penalty in respect of an offence not only marks the limits of the court's discretionary power as to sentence, 1t also ordinarily prescribes what the penalty should be in the worst type of case which falls within the relevant class of offence.

In Reynolds v. Wilkinson (1948) 51 V.A.L.R.17 at pls

Dwyer C.J. said:

"Tt ray be said that it icy o: che lav thaw the manima ar for tas worst cases of tre ser: frrs - offenders snoulé, in t' of sy maiigrancy, oo Freace col

than c.1ers., Bur

owiew tprmey ro ag al

Ores fw

- frm w iy al C r

Sans

"4L

elves. That is "3 sia imposed in a case wich othe

The Qu2zen (unteporicd, 3 lis

irportation in

Customs Act and of heroic

of s.233B(1) (7) of taat Act. Bart C.T sar

24.

" The submission, I think, 1s based upon a false premise. A maximum sentence prescripved

by statute 1s not reserved for the worst

offence of the kind dealt with by it that can

be imagined. If such were the case 1t would

never be imposed as the addition of further

non existing but aggravating circumstances

would never be beyond the reach of imaginztiocn.

The true rule as I understand 1t 1s that the maximum sentence should be reserved for the

worst type of case falling within the pronibition or, as it is expressed by Dwyer C.J. in Reynolds v. Wilkinson, (1918) 51 W.A.L.R.17 at p.18, 'for tha worse cases of the sort', That eu:pressicn ¢.ould be understood to be marking cut a rance ara an offence may be within 1c notwithstenidinag that 1t could have beer worse than it v

We adort what was said in there cases as to the appropriates principle Tnaat priaciple requites crac roth the mature o* tnt cxime ans tne carcupltanrces cf the cxrainnal Le concidcrec in devermisine whecner tha case 15 of tue «ors type.

Tae crime for which Talt wes sentenced

wa

approacnes th re te which the rescmcun

voO on a a o rq \4 G & iy c "JoO th Q ia) EH

penaity is applicable. It is not necess

i")

xy to forr any vic

6)

as to the deleterious effects of cannabis. The relevant view

an that regard 1s that which ha

(r ooO rs (0) " ")

ressed by tre legislature. It is for tr> courts to evaluate only tne

sericusness of the cenduct by which the lav as express27 in

of the crim2 in the preeent cese falls a little s:° ct of the

worst type of case. It was tho cnly oevottation which enthes

. .

:

™~ tht iw

25.

defendant had thus far carried out; there was no element of violence or corruption of narcotics agents. There is a finding that Tait was not the instigator nor mastermind of the importation. These considerations tend to support a conclusion that, even in Tait's case, the circumstances do not require the imposition of the maximum sentence. Bartiey is clearly in a lesser category.

On the other hand, the deterrent aspect of punishme is of primary importance in cases of this kind. The sentence should ceronstrate to others temoted to encage in lavlesseness

on a vast scale that tl.e punishme (fF (@) rTEbLd fa) us ) ran cay Iera o Lh

Ccalculatedé to proverzr society fron the Geliberete altach

can more confidently be assureé t> oparace. Those vho deliberately chooses to run the risk of punish one in oiler to acquire @ profit from the venture cannot pourt to mitigating circumstances of the sort which stard the cnancs offendex in good stead. The extent to which a sentelce recedes from the maximum in cases of this kind is livites

by the necessity to imeose sentences of uneavavec.zl severity as the west efficient means availa' enforce the relevant prohibztion, Our attention was dirceted to a nurber of unxcported decisions of Australian courts

which expressed or applied this approach wiea dealinjy vit

26/25

26.

drug trafficking on a large scale. It 1s a sound approach. In our view, the learned sentencing judge could not have given the deterrent aspect of Tait's sentence the weight which was required by the nature of the crime and his participation in it, for these circumstances lead to a sentence which must approach closeiv to the maximum, The sentence which he 1urposed should not be ailowed to stand,

and it becowes the daty of this Ccurt to 17pos2 the

Conasideracion must also be

Coruwonvealth Fiizscness Act 1967 anil s.4 of th: Pa ole of

Prisonexs Ora.nance 1°76 (N.T.). No dovbt an cojyeci cf parol

is to aid an the rehabilitation of a priconer (R. v. Cur_av [1975] V.R.647), but when the offence involves drus trafficling, réhabilizarcion must b2 balanced against tie

need to provice a clear datarrent

~

ee) : < .

[0 ray le} ren be Dd ~ Ie w ~]

J

hw Cc > Le 1g

€8 at p.91). Though the court 23 not to aisume eituer thet

release from caztody at the emprratian of a nen-parsls period

eccnd:gn punnsrrent. In Powar v. The Quren (1971) 131 C.1.R.

623 at p.627, Barwick C.d. aed }in.1ias, Stenhen ana Mason Jc

said:

27.

"The judge, in fixing a non-parole period,

we believe, have regard not to the

must, time within

which the paroling authority must consider the prisoner's case but to the time for which the priscner must remain in confinement. The

legislature in clear terms,..provided thar the

trial judge should determine that minimum

peri

a

for which in his judgrent,

oo

according to accept

a e

oa

principles of sentencing, the prisoner should impriscned..."

And at p.628:

"In a true sense the non-parole p

period 15

period of imprisonment to be served beca,

sentencing

guage conrsicers tnat the cri>>

calis for such detconticn,

a bety en CLL Ll

p fe)

gates to be one

that 1s, when t percling au

consicer wnecher tno seniencs confinement. To the cenc t

an cbject of 1° nmi, then

a chancs of rit a longer tinue, a shorter tire, r. taat cbhyectir

The fects of Tait's case, consicered in the light of these principles, invice the most sarious actention to s.4(3) of tua

Parole of Prisoners Ordinance 1971, which provides that the

duty to fir a non-rarole perisl Cocs not anply "12 tic cous:

considers that the nature of the offence or offanacts and the antecedents cf the offender do no: warstant tne spect ins oF he l term of amp.isonteant". Were it net fo. che vi2' of

the learned senteneing jgudec that @ ron-purels cexricd stoald

be fixed and the matter contained in Test bit A (fa the contre! of which we make nu further reference), we would na. mave been

28.

of the view that the faxing of a non-parole period

was warranted. Those factors have, however, led us to give weight to the prospect of Tait's rehabilitation, and to fix a non-parole period accordinely. The

appropriate sentence, after taking into account ths

Q tu

time that Tait spent 1n custody before being sentenced, is a term of imprisonment for 8 yesrs and 8 nonths, and

a non-parole period of 4 years ana 4 ronchs shovid b

G

fixed.

be reflected by trl sencence anrortad (Ball vw. PR. (ay 733

7 ALR 3524), His cecu_d is of relrci.ciy less e212

case. The comme. feature 1S, Of course, that the conduct of eaci constituted participaticn in the sare crime. It

was argued that Bartley

Ps ue) fo) &

though of less significance then Tait with comparable if not equal severity. Reliauce vas placed

on R. v. Weisom and Ochors [1564} 3 ALL ER 277 ( tha great

train reboury care) waLch was said to enpsecss 2 s7rtancin,

239.

sentences, The case against Bartley was not so presented before the learned sentencing judge, and, for the reasons earlier stated, we do not propose to examine the submitted principle or to interfere with the sentence imposed upon Bartlev on the grounds that it should nave been applied

to him.

The case presentec against Bartlev certainly

KH

showed a degree of involveront which way well hare

resulted in more serious punishment trarn his Honcur tires

for previous good cor@uct gives no immunity fron sever punishr cnt in cases of this kind. His scntence vas certeiniy 2t tho lowes end cf the rardt Hovewe sr, Lesviog

"ya +? a, ~ Sessa Ng prire ~le, the surcrace + Ts mle oe -fpnr - ag 7 I} - m4 itselt dees net wanitest to our sat? stacticn thar nis

Honouc's discretion wes affected by error in Bastiey's cas.

and as to the fixing of a non-prrole period in Tait's ca

was, as we have indicated, affected 14 part by tl.z

to us and to the judge in confidencze. To deny the rublic

part of the procrecines cf a court is a

espce- ally where the coure 15 exercising

' walarens dt ve Mens somt re. erence

p- th far) a ct PB Oo ie} cd Cc pp 0) a fe) u) be K su "Tr ary c Tr a

Jus

to

cr he ~

e G@if{ficult procecacal questions which a@r1s2 when

an appl_cation is made that a court sit Jn camera.

In order that a court may accede to an application that it sit in camera, it must appear either that there 18 a statutory provyisicn which enables it to dco so, or that the case falls within one of the "strictly defined exceptions" fas Lord

Blanesburgh described them in McPnerson v. McPherson

(1936] A.C.177 at p.200) to the rule that the proceedings of courts of justice should ke conducted "piblicliy aad ain open vier" (Scott v. Scotr [1913] A.C.417 at p.4dili,

Apart from statute, a court has no disereticn as to

"4 - sakes l- - = ows w. en u - 2 ae

whethoar lt sies in yuplic o¢ un private. That rule 24 as . z Tas j = - = 7 -ir) =~ Ln +, - rad Cleatiy cateavilisned aS 1% 13 Gscencsri to the precio

Dickason (1913) 17 C.i.R2.50 az p.5l Par-on A.C.3.,

with the concurzrenec cf the cther Justices of th2 dich

Court, said:

"Tne ritter aprrars to be concluc:c by tne Jucyce .£5 of the Lords in Scozt v. Seortt [1912) A.C.417), the effect of which 2s tuat tnere is e.20t power in a Court of justice to exclude wtlizc, unasmuch as one of the rormal at cs cle Court is publicity, that 1s, the sien ct tha public to atterd tire proceedings. war DD excluce may be conroEn ag eunressiy la', sus there is no lew which cresovcrs us grec 2d

otharvise than with the ocdinacy prblicity of a

Court of justice, "

More recently, in Russ2:l the High Cource has again

of curilal proceesings 1s a normal attribute cf a court, and a prevision which vould have required the Sunmtewe Ceuse

of the States to exercise unve: Lac matciunonisal jirisdretion

31.

in closed court was held invalid. Gibbs J. said at p.520:

" It 1s the ordinary rule of the Supreme Court,

as of the otner courts of the nation, that their proceedings shall be conducted 'publicity and in

open view' (Scott v. Scort [1913] A.C.417, at p.441). This rule has the virtue tnat the proceedings of every court are fully exposed to public an professional scrutiny ane crit2zcism, without which abu: 25 may flourish undetected. Further, the pudslic administration of justice tends to maintain confidence in the integrity and 1adenendte courts. The fact that courts of lav are

oF tha da ¢vanly

and not in secret 18 aa essential aenect of their character. It distinguishes thenrz activ

from those of ad inistrat £ als,

is the authentic ha°i-rark of 3 al

fror administrative procoedur 223

(195C} A.C.177, at Zhu; Te

inv3sis fo) 7 TO

exco?

moO Ww

?

Sateted

a tao

ore

uae)

crt oe ur iar

my

ay cr

KF thre © i

KD fv er

af) RE rl

requices a couxt to ccminister yvstice an pustic.

from the strictly cefined enceptions, sanction is regur.ed for the exclusion cf the puslic fron

proceeliags" (per Stephen J.,fussell v, Posse

p.533). In Scotr v. Scott supra, the reasor fer the

common lay rile an? for Gentz gy a Jesgicanl arttcrecion va

modify 1t wae eloquestly expicsse¢ Ee bard Sa at Dunfermline wae, at pp.a77,475, recstii-d Beiche 's .cLsuags

32.

" "Publicity is the very soul of justice. It 1s the keenest spur to exertion and the surest of all guards against impcobity. It keeps the judge himself while trying under trial.' 'Tne security of securities 15 publicity.' Bue amengst historians the grave and enlightened verd:ce of Hallam, 1n which he ranks the puslicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgetten: 'Civil liberty in this kingdom has two direct guarance:s; the open administration of justice according to nnown Laws truly interpreted, and farr construct cis of evidence; and the right of Parliame.t, withoar let or interrupticr, to inguire into, anc ehtaina redress of, public griavaices. Of enes2- tr2 first is by far the most iundiscenc bic: nor

the subjects of anv Stste be rem ica tt ean real freetom, where tnis cond_tier is rec fF both in its jadicrai antecicutisis ane an thr constant emere_se.'

Iomsseli shou aTacll (fT spall speck of the @iccl Prtal Lo ce oe doukt upen tass tov.c., lie out tb et ts crea anda tie 'yor's1ac si tha ¢ ePeOLen7 lL Jt ime £ 23 whicna T nave cesu ' ol ne ee the £21! of che S Sty f1elevt st Ere 22

us tclazy - ane to me cal te Ge care of at - a consuars vate uf il rescect. Theres 25 no great EOF Vottr ir Lonm Leen urict which proceeds 11 Little 1 a. 38 rules cf precediure, and 24 the qelses therelves. I mise say fcrrkly colt DT chi tas = encroiceniencs hove tanen riuce by we, Sa procolire in such a war as, inseasucly act f.ssc, but no. calmnz:tinz un tits deczsio1 mest seis oly, to 1 zu the ric Jeon. anc fea0dln cl tne cl1e1 and the o hPastlulzon of tas iz. '

The Barl of Heolsbury wos conc:sn2d to doar tne errstencc of

a@ none-statccors judicial diserzticn te sib ra carera, it

te

said at pp.44%, 4

33.

"...I wish to guard myself against the proposition

that a judge may bring a case within the category

of enforced secrecy because he thinks that justice cannot be done unless it is heard in secret. I do

net deny it, because it is impossible to prove what cases might or might not be brought within that category, but I should require to have breught

before me the concrete case before I could express

an opinion upon it. Your Lordship has said chat a mexe cesire to consider feelings of delicacy or to exclude from public hearing details which 1t would

not be desirable to publish 1s not, in yeux Loidship's Opinicn, enouch te prevent a public hearing, which Must be insisted on in accorcarce with tne rui¢

which governs the géneral proceduce in of justice, ané thos to rtustify an orces in camera 1t must Le she 1 tnat tne narcr

ve of securing that jesccce is Gone would

"wo

rendered doubtful of

The a@2itzcul safficterc expos i nowhrcn (cur Lords bad é of sath wise sypmlic 2 z may apoly thei 2a @ vay taut, LA my Gririg', tro: ioe does rot wairant.

I er 2 ovenortaaT fA crt 2G 3 language, "thien, #3 your Loxecshi> a and as I venture to sa_ I pyleelF ut ocorrrasa probably enough te secure the ortestvance of th ruts of puplic heart but whace I vencinre toa pert: c. - 15 tnat 12°15 not 39 Gefin2te un rts a@op tic 2205 but that an iandivivial guace maght ctamnk thet of. his view', Une parimye.t oby2er could ue. be ere id witheut a seceet heoring. Altnough I am vavy fer from saying that s Q ca3z my net arise, T hesitate to accade to the width of the lanyauce, which, as I say, mag it ne acpliasd to wrac, in ity view, would be an unlavrul ex:ension. "

Taexe is, hovevexr, an e@e.cep.i0en te the ruls wiere

ad v2

eee

~

34,

by rioters (R. v. Governor of Lewes Prison, ex parte Doyle

[1917] 2 K.B.254) or to protect a secret process which 1s

the subject of the litigation. But this exception is 4

narrow one, and the suggestion of Earl Lorekurn in Scott v.

Scott at p.446 that it also covers cases where by reascn of

publicity "parties entitled to justice weuld be reasonabliv

deterred from seeking it at the hancs of the Court" did

not find acceptanc:t by the cther Loris (cf. Lerd Shay at 84) and has not been follecd wois> Py Attorrey -Genecsl (1967) P.129 at BATS I CL limited to cases here the presence cf the peobire would mc the secucrng OF aastice ""Gruccful cf avteainwtea. 2" - Coes ae e nd to cascs tY3rte exclvdiir thie public wou'd we-ely s. apart or a witress frem salferinc a coliacerll d_scadvant

he is enjyagad of in which na is to give evisterc-.

upon a court to ervclads the public. Such a @iscyetion 1s

conferred on this Court by s.17(4) of the Federal Court of

Auctraltra Act 1976 in gereral tarvs. But a @rsecretion wor

Ina

io

not conforree by the Northocr Teercntiny Sooranm Court Pon 1°15 upon the Suprere Court, end that Ceart is resu-cad to exercise 15 crimanal jurisdzetien "in Court" (ss.13(1l}, 15).

22/35

35.

The context of the Act makes it clear that the

ps]

jurisdiction is to be exercised in open court. Sections

57 and 58 of the Evidence Ordinance 1939 (U.T.) confer

certain powers upon a court to exclude persons from the court or to prohibit publication of evidence or of names of parties and witnesses, bur those sections do not extend to the circumstances of the present casa. In tne

proceedings before the Supreme Court, tneze vas ns

foundation for the apnlicaciren tra: the cou

1 Ail E.R. ry the handing un of a decurvent wiich 15 not to be read in peblic (as in Anéycw v. Raebicn (187.-} L.R.9 Ch.522) ma, provite adequace confiderricrlity where

confidentiality 15 nacessary, Gurung procecciags wie as f > & ps)

Cpen to the public. Even

Statutory diseretici. to e:ncluce the tablic, 2% weuala

36.

In the present case, the confidential information was communicated to the judge not in court, Lut in chambers. That procedure was understandable but irregular. It was undevstandable hecause the judge sought a way of securing

the confidentiality which the circumstances suggested

were desirable. Nevertheless the procedure as irregular, for the judge received matevial relevent to the sencencs Out of court ard in his private chimbers, The cornsint of tne parties provides ne warrant for such a rreceduze, though we were assured fro: the kav trnple tact the practices was a usval one, and that 15 hes tne supper: of English authoritics, Tne practice bv wine: ¢ jucc? in chastsrs @ehercisces tne pusticactibin 2D has ouaLt, vet ven Pixon SC, descrised as a "veli-saracersed wet cf

(Medi tal Boerd of Vicrervi2a vy it

p.97 1S Not a Dractice Which a. cl or1c)es a jee sonte.c ing

Qa prrvscner to receive in cram:

calculated to affect the sentsonee, Il his court cc nut be closed withoct statclory wavraut, a fortiori he cann ic

hear submissicns an his peravate chews.

prose@ure adonted was Por. v. Tuxner [19791 2 ¢.B 321, Lerd Parker C.J. speating for tae Covet of i. wal

Criminal Division said at pp.32e-327:

~- S37

Atkinson i_[

37,

There must be freedom of access between counsel and judge. Any discussion, however, which takes place must be between the judge and both counsel for the Cefence and coursel for the prosecuticn, If a solicitcr representing the accused 1s in the court he should be allowed to attend the discussion 1f£ he so desires, This freedom of access is important because there nay be matters calling for cormunication or discussion, which are of such a nature that counsel cannet in

the interests of his client mention tnew in ovan court. Purely by way of example, counsel foc tne defence may by way of micigation wis* to teli the jndge that the aceusad nas not long to live, 13 suffering raybe fro cancer, of which he 1s ui should roraun ignosost. Ayala, courst™' on bint sides ray wish te cistuss vith tne qidr. wes hee at would pe prover, in a ,artzouiay cise, (cr tre plosecviion to accent a pile to 3 lester clf-nie. It 18 Cf cours? ine ritiss thar so fa. as PLrcuble justice? Mist De alr ltiscl les Im po. coict. Counsel sheuid, tnerertu.g, only asi to see tet Judge woes in is felo we. we yeally nmecBr-9ty, enc the Juce? mucc bs calefeal cnle co trlrt gc. cCONMPen ce tions af pfivate (7.852, Re foes 78 13 the arcused ptessoan, tale 1s nesessary, '

ckte a ") or fe) ta 1978) 1 W.L.R.425 where Lerd Sac

Judgmenk cf tne carrk saic (ct p.4270):

and to the distincgulsi o

their appr

It 1s net possible to ly down, neatner would ve think 1s it aesirible ta lay Gown, any gzacrel rule that thece murt never be any cottumicsrica outsice trial, e*tne L "ely

cael Qn

c this exceptional beyon'. the lirics

mu u rer( Gi Hr uJ rs te a} r "a n it Tvurwu ks r or ie]

oval to the direction in Pay. ve. Turaiy, te canns

the davecbicn ian Trmm-r's e sa with tae speornes in

Scotty's cass and, relevantiy for ous perposec, thac Girzcii)ed

38.

appears to be inconsistent with the judgments of the High

Court in Dickason's

case (supra) and in Russell's case

(supra). (See also [1942] A.C.583 at (N.S.W.) 277).

court for reasons

Mahlikilila Dholamint

Pp.

of

v. The Kang

590 and R. v. Hamilton (1930) 30 S.R.

A judge who has no discretion to close his

the kind mentioned in Turner's

ought not, in reéllence upon the save reasons, countenence

a procedure involving his receipt ef a comunicaticn in

ed --.7 -s- ~ ' - «wd "ya +t -aAn ely relaced to 2's Cauzt, tne Sencance ne apart etecw, Civ Gererlant eXtece

of punisnrirt vali be arpcirea, a i pak lic cinfide ice

in the process of sentencing will '22 ¢. ainishec. As

Sir Prank Kitte wrote in his essay "Wey Write Juagreics?" (Judtecral Esseys, Law Fousdatcion ct Uev Sovth Wales ane

Victor1an

hac

G2crvted

whe lighk of day,

underst and log Full puk on the c any terdenty any errorecus an@ on ths

to jud.cia@l high pur

Law Founzaticn,

it as not encugh thet th been in puslic.

Wa- wae

e hee @e hes The ocecs winch the cas2 rt aks ER to so at ei} aox«2y princip.2s aii 2 of law are guidilny the Cc. <2 e4 ° mey b cnieve 3 e@ hand a poverciel oe 3 te jeesc.al avte susnicson cf 5 Cctner hand an eitec Corian."

--/35

39.

Where a court is authorized to sit in carera and does so sit, or where it receives documents the contents of which are not publishad (as this Court has done in these proceedings), 1t will usually be desirable to say so in the published reasons for judgment. Where, 1n order to do Justice in a particular case, 1t 15 necessary to exclude the public from tie court rocn, or to lzmit the pydiic access to the

material upon which ti

o ran 9) 9) G re crtt fu a ct ba we

rs cbes Ke

cc. 23 Geace

re) % t @ i pp io p ct

pros

exor

that tno unpublished

In the precant cise, the absence of a written recor

the discisz1ons in chrrbers led te a chain of unde sirckie

consequences - an appeal argued on taz feoting t-cat ra

40.

relevant material had been furnished in cnambers, subsequent disagreement between the parties as to the material which had been furnished, delay occasioned bv the seeking of the judce's report, and further delay an production of an agreed statement by the parties

where they wished to amplify tne report. These

consequences are Darticularly to be regretted in @ Cresn appeal azainst sencence.

The appeal in Tart's case will bs allevsod anc his sentence increased to 8 ycirs anc 8 ronins Wici a non-parole period of 4 years. and 4 ren lho, Wie Stns ics to run from tule dace of his santence Ly eo Sutsrsn se Cruse ef the Northern Tear itery. Tae anvec] i: Dirtle,'3 cate