AT SYDNEY v 4 ?

into account irrelevant considerations - whether Tribunal made findings on certain material questions of fact - whether Tribunal

treated deportation as part of punitive process Migration Act s. 12

Administrative Appeals Tribunal Act ss. 33, 44 (i) MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v.- DANIELE

NO. G2 OF 1981 CORAM: FISHER, DAVIES AND LOCKHART JJ. 17 DECEMBER 1981

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IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.2/1981

Appellant AND : AGAZIO DANIELE Respondent ORDER JUDGES MAKING ORDER : FISHER, J DAVIES, J LOCKHART, J DATE OF ORDER 2 17 December 1981 WHERE MADE 2 Sydney THE COURT ORDERS (1) that the appeal be allowed and that the

matter be remitted to the Administrative Appeals Tribunal for re-hearing;

(2) that leave be reserved to the parties to apply in relation to costs.

) NEW SOUTH WALES DISTRICT REGISTRY ) NO. G2 OF 1981

Agazio Daniele ("the respondent) was born in Italy on 23

November 1951 and is an Italian citizen. He arrived in Australia on 12

April 1970. He is a single man and has no children or other

dependants in Australia. His parents separated when he was seven years

of age and they reside in Italy. He has one sister aged 21 years who

resides with his mother. He has one relative living in Australia

After his arrival in Australia the respondent worked as a

On the night of 10 April 1975 the respondent was involved in

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an argument with another man of Italian origin in a Sydney restaurant.

The two men left the restaurant and went onto the street which was

crowded with shoppers where the respondent produced a pistol and shot

On 10 December 1975 the respondent was arraigned in the Supreme Court of New South Wales, Criminal jurisdiction, on an indictment charging that he, on 10 April 1975, at Petersham feloniously and maliciously murdered the deceased. The respondent pleaded not guilty, his defence being basically one of self defence. On 16 December 1975 the jury returned a verdict of not guilty of murder but guilty of manslaughter. He was remanded in custody by the learned trial Judge until 19 December 1975 when he was sentenced to penal servitude for 12 years; and a non parole period was specified of four

On 9 June 1980 the respondent was released from prison on

' On 24 June 1980 the Minister for Immigration and Ethnic Affairs ordered, pursuant to s. 12 of the Migration Act 1958, that the

On 18 July 1980 the respondent applied to the Administrative

Appeals Tribunal for a review of the Minister's decision to deport him.

His application was heard by a presidential member of the Tribunal

who, on 10 December 1980, recommended that the deportation order be

revoked and remitted the matter to the Minister for reconsideration in

The Minister appeals to this Court from the decision of the

An appeal to this Court from the decision of the Tribunal

lies on a question of law (s. 44 (1) of the Administrative Appeals

Administrative Appeals Act should be given a wide meaning to encompass any failure to apply relevant

considerations or to understand the nature of the task."

per Bowen C. J. in Kuswardana v. Minister for Immigration (1981) 135 A.L.R. 186 at p. 190.

The Minister asserts that the questions of law are as

correctness of the summing up to the jury of the trial Judge as to self

defence and in considering the matters which the jury might or might

not have taken into account in arriving at their verdict;

2. The Tribunal erred in concluding that the summing up was

defective; that the jury must therefore have ignored the

proportionality of the force used by reference to the danger in which

the respondent might reasonably have believed himself to be placed;

that if this matter had been taken into account by the jury it might

have led to the respondent's acquittal; and that these conclusions led

the Tribunal to substantially diminish the importance of the conviction

3. The Tribunal failed to state the facts upon which it

{(b) the respondent's status as an immigrant and the extent of his absorption into the

4. The Tribunal failed to pay any regard to the fact that the respondent was an immigrant when the offence occurred; and that it

was relevant to consider that the Australian community would choose not

5. The Tribunal erred in considering that deportation would

It is convenient to consider questions 1 and 2 together; but

to understand them and the submissions of the parties it is necessary

to state the course taken by the Tribunal in the reasons for decision.

The Tribunal devoted the greater part of the reasons to an analysis of

the evidence adduced at the trial of the respondent for murder and the

directions of the learned trial Judge to the jury. The Tribunal said

that it embarked upon this course in order to ascertain the case that

was made against the respondent which must necessarily have been accepted by the jury in reaching their verdict. The Tribunal reviewed certain of the evidence; observed that many of the Crown witnesses

were either biased or at least unreliable as witnesses; said that

"there was certainly a gangland atmosphere about the trial"; and said

that the jury must have accepted a version of the facts which embraced

some measure of self defence on the part of the respondent. The

Tribunal then summarised the trial Judge's summing up to the jury, said

that his Honour explained the law of self defence according to the

principles laid down in R. v. Howe (1958) 100 C.L.R. 448; and then

said that since the decision of the High Court in Viro v. R. (1978) 141

conviction being quashed on the ground that justice had miscarried. I set out the current law on this

subject not for the purposes of criticism of the trial judge, but to indicate that if the jury had been properly instructed on the law as it has been defined by the High Court since the triai, the

applicant" (i.e. the respondent in this appeal) "might well have been acquitted by the jury".

The Tribunal later turned to the evidence before it relating

to the circumstances surrounding the commission of the crime of which

the respondent had been convicted. The Tribunal said that the real

explanation as to any motive by the respondent for the killing "will

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have to remain a mystery, 1f it is other than that advanced by the

applicant" namely, in effect that he took out his gun and fired at the deceased when he was scared and confused because the deceased started

The Tribunal reviewed the evidence given before it by the

respondent as to why he was carrying a loaded pistol on the night of

the killing, including evidence that he had bought the gun long before

the date of the killing; that there was no reason for carrying it on that particular day; that he did not know that the deceased was

carrying a gun; that his reason for carrying it was simply that he was

young and silly; that it was his practice to take the gun to work;

that he had picked it up at home; that it was not his habit to take the gun with him when he went out on social occasions; and that he had not fired the gun or shown it to anybody before the night of the

killing. The Tribunal said that it was a matter of grave concern that

' the respondent was carrying a loaded pistol on the night of the

The Tribunal said that 1t considered these and other matters

in order to determine the risk of recidivism and the respondent's

The Tribunal referred to the evidence of the Catholic

Chaplain to the New South Wales Prison Department as to the

respondent's conduct whilst in gaol; the evidence of a school teacher

who had taught the respondent English whilst he was serving his

sentence; and to the fact that whilst serving his sentence he was

permitted to resume work on a daily basis in his former employment as a

plasterer. There was evidence from the respondent's employer as to his

conduct during that period and subsequently after he was released on

The Tribunal concluded that on the whole of the evidence it was satisfied that, notwithstanding the serious offence committed by

the respondent, he is a person who 1s unlikely to offend again. The

Tribunal said that the respondent was doing everything he could to

rehabilitate himself by way of employment, association with relatives

and generally by leading a stable life. The Tribunal said that the crime was committed amongst members of the Italian community and that it was in no doubt that the deportation of the respondent would serve to some extent as a deterrent to members of that community from engaging in lawlessness and serious crime; but that it must balance that consideration with the undoubted fact that deportation would be an

"additional detriment or punishment to the applicant after he has

served his sentence for a serious crime". The Tribunal said that

deportation would be a heavy additional burden in ail the

The conviction is the genesis of the Minister's power to

deport. There are powerful reasons of public policy why the Tribunal

cannot ignore the conviction or seek to set it at nought. That is not

to say that the circumstances surrounding the commission of the offence

or matters relating to the trial itself cannot be examined by the

Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the

extent of that enquiry will vary from case to case. The matters which

the Tribunal is called upon to determine are wider than and different

from the questions which a trial Judge and jury must determine.

The Tribunal's task includes assessing the deportee's

character and personality, his criminal behaviour, the risk of

repetition of criminal acts, the likelihood of his rehabilitation, the

future risk to the Australian community if he remains here and the

Counsel for the applicant contended that the Tribunal in

performance of this task was bound to accept the conviction and the

facts necessarily found by the jury in reaching its verdict. We agree

that the Tribunal is bound to accept the fact of the conviction as the

source of jurisdiction and as a stigma affecting the applicant's

standing and credit in the community. However we cannot accept that

the Tribunal is not entitled to examine for itself all facts including

those necessarily found by the jury. To conclude otherwise would be to

attempt to introduce into proceedings of the Tribunal a doctrine

equivalent to that of issue estoppel. Such a doctrine has not found a

place in respect of issues arising out of criminal proceedings either

in this country or the United Kingdom and is even less at home in the

proceedings of a Tribunal composed in part of laymen and directed to

Three members of the High Court (Barwick C.J., Gibbs and

Mason JJ) in R. v. Storey & Anor (1978) 140 C.B.R. 364 held that the

doctrine of issue estoppel was not applicable to criminal proceedings. The other members of the bench (Stephen, Jacobs, Murphy and Aickin JJ.) held that the doctrine was applicable only in rare cases where an issue can be identified as having been determined in favour of the accused at

an- earlier trial. Barwick C.J. on page 372 expressly approved the

unanimous decision of the Law Lords in Director of Public Prosecutions

v. Humphrys [1977] A.c.1; and the comments of Lord Hailsham on page 34

"The doctrine of issue estoppel has developed to its present degree of sophistication by a relatively sensitive and precise system of pleadings and, in the great majority of modern

cases, by a reasoned judgment delivered by a judge sitting alone. In modern criminal procedure, the

indictment is jejune to the extreme, and, except in the rarest cases, the only pleading is the oral

plea of not guilty on arraignment. The Jury delivers an unreasoned verdict of 'guilty' or 'not guilty'. It can only be in the rarest case that an

as to give rise to issue estoppel as understood in civil proceedings, and such a case depends not at

all upon the merits or danger of double jeopardy but upon the course which the previous proceedings

Issue estoppel, generally but not universally seen as a rule

of evidence, can not have any place in proceedings of the Tribunal and

is, to the extent that it is a rule of evidence, expressly excluded by

the provisions of s. 33 of the Administrative Appeals Tribunal Act.

Sub-section 33 (1) (b) directing that proceedings should be conducted

as far as possible with little formality and technicality and sub-s. 33

(1) (¢) to the effect that the Tribunal is not bound by the rules of

evidence would appear conclusively to point to exclusion of the

doctrine. It is our opinion that the Tribunal is entitled to consider

all evidence. It will attach appropriate weight thereto in its task of evaluating the conduct of the applicant; but not for the purpose of

The Tribunal purported to approach the matter in accordance

with Brennan J.'s views 1n Re Pochi (1979) 36 F.L.R. 482. The Tribunal

"I am not endeavouring to express a view whether the applicant's conviction 1s quashable. My analysis of has trial and conviction for manslaughter is directed to the identification of the conduct of which he has been found guilty.I have to ascertain what was the case made against him which must be taken to have been accepted by the jury in returning their verdict (see re Pochi (1979) 36 F.L.R. 482 per Brennan J. at p. 488). It is all directed to ascertaining some moral culpability of the applicant so as to make a judgment whether he is the sort of person who is likely to offend again."

The Tribunal cited a passage from the judgment of Mason J. in Viro (supra) and relied on it to support its conclusion that if the jury had been properly instructed on the law as it has been defined by

the High Court since the trial of the respondent he might well have

been acquitted by the jury. The Tribunal went on to say:-

from the jury's verdict that the appellant must have believed that an unlawful attack was being

| LS fe yt fee ee PD heat 90 Gasgadls Woeabte de oe FRA ag Bee TTY GTR eh Re aie eee tL

made by him but, applying the law as outlined by the trial judge, he went too far in using the gun, i.e. he used more force than was reasonably necessary or he could have reasonably supposed was

necessary. In the result it would seem probable that the members of the jury did not address their

minds to assessing the proportionality of the force used by reference to the danger in which the

accused might reasonably have believed himself to be placed, but confined themselves to the objective

question enunciated by his Honour. That might well have resulted in the particular circumstances in a

In our opinion it was permissible for his Honour to ascertain what was the case made against the respondent at his trial so as to identify the matters which the jury must be taken to have accepted in reaching their verdict. Much weight will invariably be attached to these matters by the Tribunal in its task of evaluating the respondent's conduct. However, we must say that we see no inconsistency between the judgment of Mason J. in Viro (supra) and the trial Judge's directions to the jury on the respondent's trial. We have read the summing up to the jury by the trial Judge and his redirection to them after they asked his Honour to "re-read that part of his Honour's summing up which deals with self-defence and manslaughter". In our opinion the trial Judge made it sufficiently

clear to the jury that they must consider whether the force used by the

respondent in self-defence was proportionate to the danger which the

These comments by the Tribunal on the directions to the jury

led him to conclude that if they had been properly instructed on the

jaw as it has been defined by the High Court since the trial of the

respondent, he might well have been acquitted by the jury and that

probably the jury did not address their minds to the task of assessing

the proportionality of the force used by reference to the danger in

which the accused might reasonably have believed himself to be placed;

and that this might well have resulted in the particular circumstances in a view of the case less favourable to the accused. Even if, contrary to our opinion, these conclusions of the Deputy President are

correct, they are matters for consideration, if at all, by Courts of

Criminal Appeal or the Crown in the exercise of its prerogative and not

It follows that the Tribunal took into account considerations

which were irrelevant and thus it erred in law. The decision should

As to the questions of law 3 (a) and (b) and 4, we have had the advantage of reading the judgment of Davies J. and agree with his conclusion that findings were not made by the Tribunal on certain material questions of fact and that, in the resuit, the decision should

The final matter relied on by the Minister was that the

Tribunal erred 1n considering that deportation would be an additional punishment. It was contended on behalf of the Minister that his Honour treated the deportation process as part of the punitive process and that that this was an impermissible approach. The Tribunal did refer

to "the undoubted fact that deportation would be an additional

detriment or punishment to the applicant after he has served his

sentence for a serious crime...deportation would be a heavy additional

burden in all the circumstances"; but on a fair reading of the Trabunal's reasons it was not treating deportation as part of the punitive process. It was merely saying that, viewed from the point of view of the respondent, deportation would be to him an additional

detriment, burden or punishment. This attack fails.

We would allow the appeal and remit the matter to the Administative Appeals Tribunal to be re-determined. In _ the

circumstances we think 1t appropriate to reserve costs.

preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Juptice Fisher and his Honour Mr. Justice Lockhart.

TER EG ect aR REP RG mnths eidint Ook Mul shad TUX 18

IN THE FEDERAL COURT OF AUSTRALIA } NEW SOUTH WALES DISTRICT REGISTRY ; No. G.2/1981

This is an appeal from a decision of a Deputy President of the Administrative Appeals Tribunal recommending to the Minister of State for Immigration and Ethnic Affairs that his order dated 24 June 1980 that Agazio Daniele be deported from Australia be revoked. His Honour remitted the matter to the Minister for re~consideration in accordance with that recommendation. The matters 1n issue in the appeal arise from the consideration which his Honour gave to the conviction which Mr. Daniele suffered in the Supreme Court of New South Wales on 16 December 1975 for the manslaughter of Guiseppe Canuto on 10 April 1975.

In.a review by the Administrative Appeals Tribunal of an order for deportation made under either s.12 or s.13 of the Migration Act 1958, 1t is not the function of the Tribunal to review the propriety of the relevant conviction. That is the function of appellate courts. While it stands, the conviction invokes the power to make the order and in itself affects the reputation or standing in the community of the convicted person. An immigrant seeking to be permitted to remain in Australia so that he may become fully assimilated into the community may be met with an argument that once convicted he no longer meets the standards

required of persons, who in the exercise of discretion, will be permitted to enter or to become absorbed into the community.

And the conviction itself is evidence and usually strong evidence of the commission of the crime for which the deportee was

But that is not to say that, in a review of an order for deportation, it will never be necessary or useful to give detailed consideration to the circumstances of the trial or to attempt to identify precisely the conduct which was accepted by the jury in giving its verdict. In a particular case, the

circumstances of the crime may or may not be admitted. The

transcript of the evidence at the trial may or may not be put in evidence. The learned trial Judge's summing up or his remarks

on sentence may or may not be in evidence. If the transcript of the proceedings at the trial or the learned trial Judge's summing

up or his remarks on sentence are in evidence before the Tribunal, they may be taken as evidence of the matters which they

state for s.33 of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal 1s not bound by the rules of evidence. But there may be before the Tribunal other evidence bearing upon the circumstances of the crime. There may be oral evidence. Or there may be other documentary evidence such as a copy of the depositions at committal proceedings. Some of the evidence before the Tribunal may tend to support the conviction. Other parts of the evidence may tend to contradict it.

1 EL TE a ae EE Ae RE a EN Bae SEES Ee CREE SIN

• • oa o cremate Te et * :

The fundamental task of the Tribunal is to give to the applicant before it and to the respondent a hearing and to form its own judgment on all the matters which are relevant to the exercise of the power of deportation. Many of the matters which were in issue before the criminal court will also be either in issue or relevant to matters in issue before the Tribunal. But, because

of the scope of the enquiry before the Tribunal will ordinarily be much wider than the enquiry before the criminal court, it is likely that the Tribunal will have to examine the criminal activity with eyes different from those of the criminal jury. The total pattern of the deportee's behaviour, including his criminal behaviour, his personality and characteristics, the risk

of recidivism, the risk of harm to the community should be remain

"in Australia, the prospects of his rehabilitation and the

detriment to him should he be deported are all matters concerning which the Tribunal will usually have to make up its own mind and

concerning which the view of the jury as to whether or not a crime occurred may, in a particular case, be of only limited

No principle of estoppel precludes an examination of these

matters. A conviction does not constitute an estoppel in rem save as to the fact of conviction. Spencer Bower & Turner, Res Judicata, 3rd ed, pp.215, 221. And, whatever may be the

conflict between R v Storey (1978) 140 CLR 364 and Director of Public Prosecutions v Humphrys (1977) Ac 1, no issue estoppel

will arise. Thus the criminal proceedings were between the Crown in right of the State of New South Wales and the appellant

whereas the parties to the review were the appellant and the Federal Minister of State for Immigration and Ethnic Affairs.

Moreover, the review was conducted by a body, the Administrative Appeals Tribunal, which has an independent duty to investigate

for itself the facts of the matter. The Tribunal is not

restricted by any estoppel which binds a primary decision-maker

t any pte ESE EN Rate eee Ste TL I oR tetera ethan te ey ecipestattedire LA, ine O

An example of the application of the principles which I have stated will be seen in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279. That was an

analagous type of case for it concerned a barrister who had been

convicted of manslaughter and of whom the question was whether or not he should be disbarred from practice. In that case, as in the review of ss.12 and 13 deportation decisions, the conviction was relevant for it at least detracted from the standing and reputation of the barrister. It was in itself a disgrace. An issue which was considered by the Court was whether the decision to disbar should take into account also the full circumstances of the offence and the general character and reputation of the barrister. Though the learned members of the Court each approached the matter somewhat differently, there was a majority

view that matters other than the conviction itself may and in that case should be taken into consideration. The Chief

"In the Supreme Court the view seems to have been adopted, at all events by Street CJ, that the conviction and sentence constituted grounds in themselves for disbarring the appellant and that the court should not be concerned to go behind them and review the facts or circumstances. No doubt the fact of the conviction and sentence is in itself a matter of great importance but I do not agree that all the circumstances lying behind them should not be taken into consideration before determining that the appellant should not remain a member of the Bar."

His Honour then looked at all the material which was before the Court including the depositions before the Coroner. At page 285 his Honour examined evidence that had not been given at the trial

"He (the police sergeant) was not, however, called at the trial by the prosecutor and the appellant's counsel was forced to put him in the witness-box, where his evidence proved much less favourable to the appellant than had his depositions, and where he was not exposed to cross-examination on the appellant's behalf. In this and perhaps other respects the trial was not altogether satisfactory. But the fact remains that the jury completely rejected the appellant's case and on ample

materials convicted him of manslaughter. Further, the judge presiding at quarter sessions treated his

offence as very serious and imposed a substantial term of imprisonment."

remain on the roll of barristers the special if not singular position of counsel should be borne

steadily in mind. If counsel is adequately to perform his functions and serve the interests of his clients, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment upon him which must ordinarily mean the loss by him of the standing before- the -court and : the public which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and responsibilities of an advocate. There

may be convictions for a crime of which this is not true, but I cannot think that the present is one of

In his final conclusion, the Chief Justice was in the minority. He placed rather more weight upon the conviction than did the

majority but nevertheless, in the course of his reasons, he examined and considered relevant the whole of the evidence which

was before the Supreme Court 1n the disbarment proceedings.

MeTiernan J also was in the minority in his ultimate conclusion

and, as his judgment was brief, I need not deal with it.

"In a case of this kind it is essential, in my opinion, to begin by defining the ground on which an order of disbarment is to be made. It as stated in general terms by saying that the person in question 1s not a fit and proper person to be permitted to practise at the Bar. The next question is - at what facts is it proper to look in order to see whether that conclusion is established? The answer must surely be that we must look at every fact which can throw any light on that question. But, descending to particularity, is 1t the conviction that is the

ultimate issue? Or must we look beyond the conviction, and endeavour to ascertain, as best we can on the material before us, the facts and circumstances of the particular case? To my mind, there can be only one answer to these questions. The conviction is not irrelevant : it is admissible prima facie evidence bearing on the ultimate issue, and may be regarded as carrying a degree of disgrace itself. But, in the first place, its weight may be seriously affected by circumstances attending it, and it must _ be permissible to look at the conduct of the trial. And, in the second place, it is on what the man did that the case must ultimately be decided, and we are bound to ascertain, so far as we can on the material available, the real facts of the case. It is only when we have done this that we can be in a position to characterise the conduct in question,and to see-whether we are really justified in saying that a man is disgualified from practising his profession. I would only add that there is one thing that we manifestly cannot do. We cannot look behind the conviction to the extent of saying that there is much evidence that the appellant was driving his car in a state of intoxication, and refuse to look any further behind it."

"There was, at the appellant's trial, ample evidence on which a jury, properly directed, could find that the appellant, driving his car in a grossly negligent manner when in a state of intoxication, caused the death of a motor cyclist with whom he came into head-on collision, and that he was therefore guilty of manslaughter. The appellant did not appeal to the Court of Criminal

Appeal, and he could not, of course, challenge the conviction as such in these proceedings. In the

Supreme Court, however, his counsel sought to have all the circumstances of the case and the evidence

on the trial investigated - not for the purpose of Maintaining that the verdict could not be

supported, but with a view to showing that a verdict of acquittal would not have been an

unreasonable verdict, and that in any case it could not be said to be established beyond doubt that the appellant's conduct was so disgraceful as. to justify his be1ung disbarred. It appears to

have been thought by the Supreme Court that it was not permissible to look behind 'the plain facts

that a member of the Bar was convicted of manslaughter by a jury and was sentenced to a term

of imprisonment". I have already stated my inability to accept this view."

"I feel bound to examine the circumstances of the case in detail for myself. When this 1s done, I

think that two things appear. The first is that there is a reasonably probable version of the whole

episode which, as I think, leaves one with a grave doubt as to whether the ultimate issue in the case

can properly be found against the appellant. The second is that there were at least two

umsatisfactory features of the trial which resulted in the appellant's conviction."

"The matters which I have mentioned, and-especially the grave misdirection, mean to my mind that the

conviction as such is deprived, for present purposes, of practical significance. Then, when

one looks at the evidence apart from the verdict, it seems to me impossible to say that it justifies

a finding that the appellant is not a fit and proper person to practise at the Bar."

Kitto J's approach was different. At pages 298-9 his Honour said :

"In the present case 1t is not for conduct, but because of a conviction, that the appellant has

been disbarred. The Supreme Court, in my opinion, was right in refusing to go behind the conviction,

since it had not called upon the appellant to show cause in respect of anything else. If the issue before the court had been whether the appellant's conduct on the occasion to which the conviction

related had in fact been such as to disqualify him from continuing a member of the Bar, that conduct

would have had to be proved by admissible evidence." It will be noted that his Honour based his view that the Court was raght in refusing to go behind the conviction upon the fact that the barrister had not been called upon to show cause in relation to a wider issue. I pause to say that in a review of an order for deportation, issues other than the conviction

ordinarily are raised and the criminal's total conduct ordinarily

is in issue. Having limited the ambit of consideration to the

conviction, Kitto J upheld the appeal on the ground that, as the conviction related to an isolated occasion and was not a conviction of a premeditated crime or itself andicated any tendency to vice or violence or lacked any probity or had any

connection with or significance for any professional function,

then the conviction and the imprisonment did not disqualify the barrister from practising at the Bar.

Taylor J approached the matter much in the same manner as did Fullagar J. At page 302 his Honour said :

"The Full Court, however, was not concerned with the appellant's conduct as such; it was concerned

merely with the fact of conviction and sentence and the underlying facts were thought by the members of

the court to be irrelevant. But, whilst I respectfully agree with the observations of the

learned Chief Justice concerning the high standard of conduct expected and required of members of the

Bar, I find it impossible to assent to the proposition that proof of the fact of the

appellant's conviction and sentence, without more, made it inevitable that an order should be made

directing that his name be removed from the roll of barristers; the vital question, in my opinion, in

such cases, 1S not whether a practitioner has been convicted of an offence against the criminal law

but whether his conduct has been such as to show that he is unfit to remain a member of his profession."

"In the circumstances it is, I think, incumbent upon us to examine the facts which led to the

appellant's conviction for the purpose of seeing whether they disclose conduct on his part which

shows that he 1s not a f1t and proper person to remain a member of the Bar."

His Honour then examined the whole of the evidence which was before the Supreme Court in the disbarment proceedings. At page

"There is, however, other relevant evidence before us which ought to be considered and for reasons which will readily appear, this Court is in a far better position to consider it than the jury was

TER NOLL EE RE NE EE Se RE SAVORS A alae Dea SPORES DS a ETT RACE

"For the reasons I have given it is, I think, possible to say, firstly, that the mere fact of the

appellant's conviction involving, as it may have done, a finding that, on the occasion in question, he drove his car with gross negligence and under the influence of intoxicating liquor did not justify the removal of his name from the roll of barristers. Secondly, it may be said that, when the whole of the evidence now available is examined, the fact of the appellant's conviction, as a factor for consideration, loses a great deal of its weight and, finally, that it is impossible, upon the evidence, to conclude that the appellant's conduct on the occasion in question was such as to

• make it appear that he was unfit to remain a member " of the Bar."

Those judgments, in my view, bear out the principles I have stated and adequately illustrate the manner in which an enquiry

should proceed when a conviction is a relevant but not a determinative factor.

I have discussed at some length the approach which it is proper to take to such cases for Mr. K. Mason, QC, senior counsel for

the respondent, submitted that the Tribunal was bound to accept the conviction and the facts necessarily found by the jury. In

my view, the Tribunal could itself examine all relevant facts including the facts behind the conviction, as was done in Z1ems'

case, and, in my view, in the review of the order that Mr. Daniele be G@eported, it was proper that it should do so.

Nevertheless, although the learned Deputy President could and should have looked at those matters, it appears to me that this

function of the Tribunal was not adequately performed and that there was, in the reasons for decision, undue concentration upon the circumstances of the trial. Early in his reasons for decision, the learned Deputy President said,

"I think that it accords with sound principles to examine with care the conduct for which an

tat te ee RA 8 TAT ange Ut eer Ace aP REIT EN eee ras Pa

applicant was convicted in order to ascertain what was the case made against him and which must

necessarily have been accepted by the jury in giving their verdict."

His Honour referred to the remarks of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at

"Although the Tribunal cannot go behind the conviction upon which a section 12 order is based,

the significance of a conviction in the exercise of the discretion under section 12 will vary from case

to case. It is therefore necessary to identify the conduct of which the alien has been found guilty. In the present case, for example, to say

Indian hemp is not adequately to describe the conduct for which he was convicted. It is

necessary to ascertain what was the case made against him which must be taken to have been

accepted by the jury in returning the1r verdict, and I shall presently refer to that case."

But Brennan J did not I think intend to say that a review by the Administrative Appeals Tribunal of a deportation order made by

the Minister for Immigration and Ethnic Affairs necessarily starts with or is substantially limited to an examination of the

criminal trial for the purpose of identifying conduct of which the deportee had been found guilty. Indeed, that is not what

Brennan J did in Pochi's case. His Honour undertook the task, which in my view is: imposed upon the Administrative Appeals

Tribunal by the function which it performs, of ascertaining for himself what were all the facts, matters and circumstances

relevant to a decision as to whether Mr. Pochi should be

deported. In my view, in the decision under appeal, the

carrying out of the function which was imposed on the Tribunal, that of ascertaining all the facts, matters and circumstances

relevant to Mr. Daniele's deportation, was restricted by an undue concentration upon the summing up to the jury by the learned

It appears from the evidence that, within four years of his entry to Australia, Mr. Daniele, an Italian migrant and a single man,

had taken to carrying with him a loaded Beretta pistol. It was the practice of Mr. Daniele to take the gun to work though not on social occasions. On the night of 10 April 1975, Mr. Daniele had with him his pistol when he went to a social club. He and Mr. Canuto, the deceased, left the club either together or about

the same time. In his remarks on sentence, the learned trial

Judge described the shooting, which occurred outside the club and in which Mr.Canuto was killed, in these terms :

"Looked at quite objectively, the shooting could be described as a shoot-out in true gangster- - -land

fashion by two armed men, and it took place in Parramatta Road, Petersham at 7.30 pm on late

shopping night at a time when the street was thronged with shoppers."

Thus, the issues before the Administrative Appeals Tribunal were wider than were the issues before the jury. It was not in dispute that Mr. Daniele had shot and killed Mr. Canuto. Whether Mr. Daniele had been guilty of such behaviour as justified a conviction for manslaughter was certainly a matter

relevant to the enquiry which the Tribunal had to make but

equally relevant was Mr. Daniele's pattern of life over his years

in Australia, how he had come to adopt the practice of carrying a

loaded pistol, what type of people he associated with, how he came to be iunvolved in a shoot-out with Mr. Canuto, what was the

risk of recidivism and what was the risk of harm to others in the community should Mr. Daniele remain in this country. It was

relevant to enquire whether Mr. Daniele still had the status of immigrant and whether, if so, he met the standard of persons who

in the exercise of discretion are permitted to become assimilated anto the Australlan community.

It 1s not necessary that I deal in detail with the reasons for decision of the learned Deputy President. It is sufficient to

say that his Honour's reasons appear to concentrate upon the trial to the detriment of a full consideration of these wider

circumstances which in my view it was the function of the

Tribunal to examine. There is absent from his Honour's reasons any full examination of or statement of what, in the particular case, were the relevant facts to be taken into account for the purpose of the exercise of the power of deportation. Thus, as to the carrying of the pistol the learned Deputy President said, ",...indeed no credible reason, has ever been given by the applicant for carrying a loaded Beretta pistol". As to the shooting, his Honour said :

"I agree the shooting does not sit comfortably with the earlier confrontation, but I am not able to conclude that the solution reposes in the applicant. The death of the deceased seems to be

out of all proportion to the trivial disagreement which happened two weeks earlier. But the Crown,

having investigated the matter-fully, did not lead any evidence of motive for the killing at the

applicant's trial and there being no other explanation I should not speculate on this subject.

The real explanation will have to remain a mystery,

applicant." But these were matters of too great a significance to be so quickly dismissed. It may be that the learned Deputy President found himself, on the evidence available to him, unable to come to any firm view as to what was the true reason for the carrying of the pistol and for the shooting. But if that were so, 1t was surely relevant for the learned Deputy President to take into account a somewhat greater risk of future harm than he would have taken into account had he been entirely satisfied as to the

In my view, his Honour's reasons did not deal with matters which

were both relevant and significant to the decision to be made. As the Administrative Appeals Tribunal is required by s.43(2) of

the Administrative Appeals Tribunal Act to give reasons in writang for its decision and in those reasons to state its

findings on material questions of fact, the failure of the reasons to deal adequately with material issues must lead to the

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Furthermore, in the course of his examination of the trial, the learned Deputy President came to the view that a direction had been given by the learned trial Judge which was deficient according to the law as expounded in Viro v The Queen (1976-78)

141 CLR 88 and that "...1f the jury had been properly instructed on the law as it has been defined by the High Court since the

trial, the applicant might well have been acquitted by the jury". I would pause to say that, even were that true, the conclusion

would seem to have only limited significance. Mr. Daniele had in fact been convicted of manslaughter and he was a person who

had carried a loaded pistol and, in a gun fight, had shot and killed another man. That was conduct which many members of the

community would not find acceptable whether it amounted to

However, the defect in the summing up to which the learned Deputy President directed attention does not appear to me to be present.

The learned Deputy President referred to the statement by Mason J in Viro's case at pages 146-7 that,

"If the jury 1s not satisfied beyond reasonable doubt that there was no such reasonable belief by

the accused, it must then consider whether the force in fact used by the accused was reasonably

proportionate to the danger which he believed he faced."

The learned Deputy President said, and correctly said,

that the fact that the force used by an accused was disproportionate to the danger which he actually

faced did not in itself dispose of the defence of self-defence if the accused might have believed

that he faced a greater danger than he actually did «.. That being so, it was necessary that the jury

be directed to consider whether the force used by the applicant may have been proportionate to the

danger which he believed he faced." In my opinion, the principle which his Honour stated was in fact applied by the learned trial Judge in his summing up. Page 29 of the Appeal Book records the learned trial Judge's statement to the jury,

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"You must look at the situation as it appeared to him. You must look at it through his eyes in order to determine what the threat was and the nature of it and the extent of it."

And at page 54 of the Appeal Book, the learned trial Judge

"I told you gentlemen that in considering whether he had used no more force than was necessary or

than he reasonably supposed to be necessary you look at all the circumstances and you look at the

If you came to the conclusion that he was acting in self-defence and he used no more force than was reasonably necessary or than he reasonably supposed was necessary then he is entitled to go free. That 1s the law."

In my opinion, the learned trial Judge sufficiently made it clear to the jury in those passages that the jury was required to

consider whether the force used in self-defence may have been proportionate to the danger which Mr. Daniele believed he faced. Those passages were not referred to by the learned Deputy President in his reasons. :

It follows, in my view, that his Honour took into account an irrelevant consideration, namely, that, if the jury had been

properly instructed, the applicant might well have been acquitted or, to adopt another statement of the learned Deputy President,

"That (the summing up) might well have resulted in particular circumstances in a view of the case less favourable to the

accused". That is a further ground for allowing the appeal.

The last matter on which I make comment arises from the learned

Deputy President's comments that "...deportation would be an additional detriment or punishment to the respondent..." and

",..deportation would be a heavy additional burden in all the

Mr. Mason submitted that - "His Honour in the passage to which I have referred

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High Court has said it is not." In this appeal, it is unnecessary that I discuss the extent to which the deportation of a criminal may be seen as an additional punishment imposed upon him by reason of his crime. In my view, in the above comments his Honour was doing no more than referring to the hardship which Mr. Daniele would suffer if he were deported. His Honour considered that deportation would be to Mr. Daniele a hardship or detriment. In this event, that hardship or detriment was, in my view, a relevant factor to be taken into account in the balancing of all the factors for or ,against deportation. Once his Honour had formed the view that deportation would be a hardship or detriment, his Honour's decision would have omitted consideration of a material factor if

For the reasons I have mentioned, I would allow the appeal and would remit the matter to the Administrative Appeals Tribunal for re-hearing.

I certify that this and the fourteen (14) preceding pages are a true copy

of the Reasons for Judgment herein of his Honour Mr. Justice Davies.