Taylor v Attorney-General

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Bell,Gageler,Keane JJ.,Edelman J.
• Judgment Date: 11 September 2021
• Neutral Citation: [2019] HCA 30
• Docket Number: M36/2018
• Date: 11 September 2019

Daniel Taylor

Plaintiff

and

Attorney-General of the Commonwealth

Defendant

[2019] HCA 30

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

M36/2018

HIGH COURT OF AUSTRALIA

Criminal practice — Private prosecution — Authority to prosecute — Where private citizen sought to commence criminal proceeding for offence of crime against humanity contrary to s 268.11 of Criminal Code (Cth) — Where offence located within Div 268 of Criminal Code — Where s 268.121(1) provides that proceedings under Div 268 must not be commenced without Attorney-General's written consent — Where Attorney-General did not consent — Where s 268.121(2) of Criminal Code provides that offence against Div 268 “may only be prosecuted in the name of the Attorney-General” — Where s 13(a) of Crimes Act 1914 (Cth) provides that any person may “institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth” unless contrary intention appears — Whether s 268.121(2) expresses contrary intention for purpose of s 13(a) — Whether s 268.121(2) precludes private prosecution of offence against Div 268.

Words and phrases — “commencement of proceedings”, “committal”, “consent”, “consent of the Attorney-General”, “contrary intention”, “crime against humanity”, “in the name of”, “indictable offence against the law of the Commonwealth”, “private prosecution”, “prosecuted in the name of the Attorney-General”, “relator proceeding”, “right to prosecute”, “summary proceedings”, “trial on indictment”.

Crimes Act 1914 (Cth), s 13(a).

Criminal Code (Cth), ss 268.11, 268.121.

Judiciary Act 1903 (Cth), ss 68, 69.

Representation

R Merkel QC with R J Sharp and M A J Isobel for the plaintiff (instructed by Human Rights for All Pty Ltd)

S P Donaghue QC, Solicitor-General of the Commonwealth, with T M Begbie, K M Evans and C Ernst for the defendant (instructed by Australian Government Solicitor)

ORDER

The questions stated in the revised special case filed on 26 November 2018 be answered as follows:

• 1. Is the defendant's decision to refuse to consent under s 268.121 of the Criminal Code (Cth) to the prosecution of Ms Suu Kyi insusceptible of judicial review on the grounds raised in the amended application?

  Answer: Unnecessary to answer.

• 2. If “no” to question 1, did the defendant make a jurisdictional error in refusing consent under s 268.121 of the Criminal Code to the prosecution of Ms Suu Kyi on the ground that Australia was obliged under customary international law to afford an incumbent foreign minister absolute immunity from Australia's domestic criminal jurisdiction (the asserted immunity) for one or more of the following reasons:

  • a. Under customary international law as at the date of the defendant's decision, the asserted immunity did not apply in a domestic criminal prosecution in respect of crimes defined in the Rome Statute?

  • b. By reason of:

    • i. the declaration made by Australia upon ratifying the Rome Statute;

    • ii. Australia's treaty obligations under the Rome Statute; and/or

    • iii. the enactment of the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth),

      the obligations assumed by Australia under international law were such that the defendant was not entitled to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute?

  • c. By reason of:

    • i. the declaration made by Australia upon ratifying the Rome Statute;

    • ii. Australia's treaty obligations under the Rome Statute;

    • iii. the enactment of the International Criminal Court Act and the International Criminal Court (Consequential Amendments) Act; and/or

    • iv. the Diplomatic Privileges and Immunities Act 1967 (Cth), the Consular Privileges and Immunities Act 1972 (Cth) and the Foreign States Immunities Act 1985 (Cth),

      the defendant was not entitled under Australian domestic law to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute?

    Answer: Does not arise.

• 3. If “no” to question 1, did the defendant make a jurisdictional error in refusing consent to the prosecution of Ms Suu Kyi on the ground that he failed to afford the plaintiff procedural fairness?

  Answer: Does not arise.

• 4. What relief, if any, should be granted?

  Answer: None. The amended application should be dismissed with costs.

• 5. Who should bear the costs of the special case?

  Answer: The plaintiff.

1 Kiefel CJ, Bell, Gageler AND Keane JJ. On 16 March 2018, the plaintiff, a private citizen, attended the Magistrates' Court at Melbourne. There he lodged a charge-sheet together with a draft summons. The charge-sheet alleged that Aung San Suu Kyi, the Minister of the Office of the President and Foreign Minister of the Republic of the Union of Myanmar, had committed a crime against humanity in contravention of s 268.11 of the Criminal Code (Cth). Section 268.11, which is located within Div 268 of the Criminal Code, creates an offence punishable by imprisonment for up to 17 years. By operation of ss 4G and 4J of the Crimes Act 1914 (Cth), an offence against s 268.11 is an indictable offence incapable of being heard and determined summarily.

2 The plaintiff lodged the charge-sheet and draft summons in purported reliance on s 13(a) of the Crimes Act, in an attempt to invoke the procedure for the commencement of a criminal proceeding set out in Pt 2.2 of the Criminal Procedure Act 2009 (Vic).

3 By these steps, the plaintiff attempted to commence a proceeding commonly and appropriately described as a private prosecution. Section 13 of the Crimes Act, which operates to the exclusion of the common law in relation to prosecutions for Commonwealth offences 1, provides:

“Unless the contrary intention appears in the Act or regulation creating the offence, any person may:

• (a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or

• (b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.”

4 Part 2.2 of the Criminal Procedure Act provides for a criminal proceeding to be commenced by methods which include filing a charge-sheet with a registrar of the Magistrates' Court 2. On application by the person so commencing a criminal proceeding, a registrar must issue a summons to answer the charge directed to the accused if the registrar is satisfied that the charge discloses an

offence known to law 3. The summons to answer the charge needs then to be served on the accused 4. In a case where the charge is of an indictable offence unable to be heard and determined summarily under Ch 3 and no direct indictment has been filed, the Magistrates' Court must then hold a committal hearing under Ch 4 5. At the conclusion of the committal hearing, the Magistrates' Court must commit the accused for trial of the offence charged if it is of the opinion that the evidence is of sufficient weight to support a conviction for the offence 6. If the accused is committed for trial, the trial can only occur after the filing of an indictment in the Supreme Court or in the County Court in accordance with the procedure set out in Ch 5 7. The filing of an indictment does not commence a new criminal proceeding against the accused 8 but is rather a continuation of the proceeding commenced by the filing of the charge-sheet

5 In accordance with the policy of the Magistrates' Court in relation to private prosecutions, the Registrar of the Magistrates' Court at Melbourne did not immediately file the charge-sheet or issue the summons. The Registrar instead referred the charge-sheet and draft summons for review by a Magistrate.

6 On the same day as he lodged the charge-sheet and draft summons, the plaintiff sent an email to the defendant, the Attorney-General of the Commonwealth, requesting his consent under s 268.121(1) of the Criminal Code to the commencement of the prosecution. Section 268.121 provides:

• “(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General's written consent.

• (2) An offence against this Division may only be prosecuted in the name of the Attorney-General.

• (3) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.”

7 The defendant did not consent to the prosecution. The defendant communicated his decision to the plaintiff in a letter three days later.

8 On 23 March 2018, the plaintiff commenced a proceeding against the defendant in the original jurisdiction of the High Court under s 75(v) of the Constitution. The principal relief sought by the plaintiff in his amended application in that proceeding was a writ of certiorari quashing the decision of the defendant not to consent to the commencement of the prosecution and a writ of mandamus compelling the defendant to reconsider the plaintiff's request for consent. The grounds on which that relief was sought were that, in deciding not to consent, the defendant failed to comply with implied conditions on which the Attorney-General's power to give written consent is conferred by s 268.121(1) of the Criminal Code by adopting an erroneous view of the content of international law and by denying the plaintiff procedural fairness.

9 By special case in the proceeding, the parties agreed in stating questions for the consideration of the Full Court. The questions, set out in full at the conclusion of these reasons, asked whether the defendant's decision was susceptible to judicial review on the grounds on which the...