AT SYDNEY v 4 ?

Federal Court of Australia|1981-12-17|Before: Lockhart JJ

CATCHWORDS Administrative Law ~ deportation order ~ respondent an Italian citizen convicted of manslaughter and sentenced to period of penal servitude ~ upon release of respondent a deportation order made by Minister for Immigration and Ethnic Affairs pursuant to s. 12 of Migration Act 1958 (Cth.) - Administrative Appeals Tribunal recommended revocation of order and remitted matter to

Minister for reconsideration - Minister appeals on question of law pursuant to s. 44 (i) of Administrative Appeals Tribunal Act

1975 (Cth.) - issue estoppel - purposes for which the Tribunal

is entitled to consider all evidence - whether Tribunal took

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;

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

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

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

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

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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

At a glance

Court

Decision date

Before

Source

Judgment (388 paragraphs)

Parties

Cases Cited (3)

Cited By (3)