A constitutional croc shock story

That renowned journal of record the Northern Territory News is justly world famous for its editors’ ability to conjure tabloid “croc shock” page 1 stories from the flimsiest raw material. Indeed the weekend Sunday Territorian carried just such a story, about a 4 metre croc that terrorised bathers and fishermen at Rapid Creek a couple of days ago. It didn’t stop me and B Model Baby from spending a cosy half hour or so sitting on the beach together at Rapid Creek in the dark last night, but that had less to do with croc-tempting romantic bravado than with the fact that neither of us had bothered to read the Sunday Terror and so didn’t realise that we might conceivably not be the only large-ish creatures lying on the sand.

Nevertheless, today’s NT News relegated the follow-up “croc-shock” story to page 2, in favour of (joy!) a constitutional law tabloid beat-up titled NT murderers face retrial!:

If Cosmos Tipiloura is successful, all majority verdict convictions in the Territory will have to be overturned.

A jailed murderer has mounted a High Court challenge against a majority jury guilty verdict handed down by the Territory Supreme Court more than 10 years ago.

The Tiwi Islander’s lawyers have filed an application for special leave to appeal to the High Court.

A hearing is possible later this year. …

Tipiloura’s case has intrigued constitutional law experts because of recent comments by High Court judge Michael Kirby. In an unsuccessful case posing similar questions to the Tipiloura appeal, Justice Michael Kirby indicated he would support an appropriate case.

“The notion that the territories of the Commonwealth are disjoined from the one federal union is unpersuasive to me,” Justice Kirby said.

However, following the time-honoured tabloid tradition of never letting the facts spoil a good story, the NT News failed to mention several rather important points. First, the fact that a convicted criminal, whose appeals have all so far failed, has lodged an Application for Special Leave to Appeal to the High Court says nothing at all about the application’s chances of success. Anyone can lodge a Special Leave application, and more than 80% of them fail. Moreover, even a successful special leave application doesn’t mean the appeal itself will succeed: it just means you get a chance to argue your case before a Full Bench of the Court.

Perhaps more importantly, there are rather strong grounds for predicting that this particular Special Leave application has even less chance of succeeding than most. It wouldn’t be wise to be too dogmatic given that I haven’t seen the appeal papers and don’t know exactly how Cosmos Tipiloura’s lawyers intend to mount their argument. Nevertheless, they’d certainly need to pull a fairly spectacular rabbit out of the hat to have any chance at all. As far as I can see from the NT News story, they’re trying to argue a point that was basically conclusively decided against them as recently as 1999 in a case involving David Eastman, who had been convicted in the ACT Supreme Court of murdering Federal Assistant Police Commissioner Colin Winchester. Moreover, Eastman was decided by a 6/1 majority, with only Justice Michael Kirby dissenting. You see, it’s no coincidence that the NT News story sets out Justice Kirby’s opinion, while carefully avoiding any mention of the fact that he was the only member of the Court to hold it!

Eastman’s argument was that his murder conviction had been invalid, because the presiding judge at the trial was an ACT Supreme Court judge who didn’t enjoy the judicial tenure and terms and conditions required for federal judges by section 72 of the Commonwealth Constitution. That argument depended in turn on the proposition that the ACT Supreme Court should be regarded as a federal court (i.e. one of “the other courts created by the Parliament” referred to in Constitution section 72. At least before Eastman was decided, this argument wasn’t as hopeless as it might sound. First, the relationship (if any) between the Territories power (Constitution section 122) and Chapter III (The Judicature, which includes both section 72 and section 80, the section specifically in issue in the Cosmos Tipiloura matter) has been referred to by some Justices as “a notoriously technical and difficult branch of Australian constitutional law”, and that’s an understatement. Secondly, in the years immediately preceding Eastman, several Justices (notably Gaudron, McHugh and Kirby JJ) had expressed tentative doubts about the correctness of the long-established High Court doctrine that section 122 should be regarded as completely “disjoined” from Chapter III. That position was decided in several early cases, most notably R v Bernasconi in 1915. Thirdly, the Supreme Court of the ACT had originally been established by an enactment of the Commonwealth Parliament, making an argument that it should be regarded as a “court created by the (Commonwealth) Parliament” a superficially plausible one.

Nevertheless, all but Justice Kirby decisively rejected Eastman’s arguments, albeit by several different and very complex reasoning processes which I won’t attempt to summarise here. It’s fortunate that they did, because the result had his argument succeeded would have been that pretty much all criminal convictions by territory courts would have been constitutionally invalid!!

The problem with Cosmos Tipiloura’s case, apart from the fact that the decision in Eastman indicates very strongly that he won’t succeed anyway, is that he’s on even weaker ground than David Eastman was. Not only did the Court in Eastman decline to overrule R v Bernasconi (which had specifically held that section 80 did not require jury trial for territory offences) but, if judges of the ACT (and NT) Supreme Court aren’t required to have section 72 federal judicial tenure despite the fact that both courts were originally created by Commonwealth enactment, then it’s highly unlikely the Court is going to overrule Bernasconi in relation to section 80, and the argument that it should do so is utterly unconvincing. Section 80 requires that:

“The trial on indictment of any offence against any law of the Commonwealth shall be by jury”

Unlike in Eastman, where the law establishing the trial court had originally been a Commonwealth law, the law for whose breach Tipiloura was convicted is a law passed by the Legislative Assembly of the Northern Territory, namely the NT Criminal Code. It’s difficult to imagine any even vaguely persuasive argument whereby one could regard the NT Criminal Code as a “law of the Commonwealth”, when it’s actually a law made by a Territory Parliament that the High Court has repeatedly held is a sovereign entity in its own right.

In fact, perhaps the more interesting question is why Legal Aid would choose to fund such an apparently unmeritorious appeal with miniscule chances of success in the first place. However, I’d better not pursue that line of argument much further, because a previous CLP Chief Minister was found by the Federal Court to have been guilty of contempt of court for making not dissimilar (although even more disparaging) remarks about a Legal Aid case challenging the validity of the appointment of the Chief Magistrate of the Northern Territory. There’s a very real argument as to whether that contempt finding is itself unconstitutional given the implied freedom of political speech guaranteed by the Constitution, but former Chief Minister Denis Burke was denied the opportunity to test it when the Martin Labor government unexpectedly won power in 2001 and defunded the litigation! My own bank balance doesn’t encourage me to be a constitutional guinea pig in place of Mr Burke.