AB (A Pseudonym) v The Queen
[2018] HCATrans 134
[2018] HCATrans 134
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S186 of 2018
B e t w e e n -
AB (A PSEUDONYM)
Applicant
and
THE QUEEN
Respondent
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 25 JULY 2018, AT 9.28 AM
Copyright in the High Court of Australia
MR M.A. ROBINSON, SC: If the Court pleases, I appear with my learned friend, MS V.M. HEATH, for the applicant. (instructed by Brendon Dunstan, Solicitor)
MR H. BAKER, SC: If the Court pleases, I appear for the respondent with my learned friend, MS B.K. BAKER. (instructed by Office of the Director of Public Prosecutions (NSW))
HIS HONOUR: Mr Robinson.
MR ROBINSON: Your Honour, I move on the summons for a stay that was filed on 20 July this year.
HIS HONOUR: Yes.
MR ROBINSON: In support of the summons I read an affidavit of Mr Brendon Tony Dunstan made 19 July 2018 and filed on 20 July 2018.
HIS HONOUR: Yes, thank you. I have looked at that affidavit. Is there any particular part you wish me to focus on?
MR ROBINSON: I will come to that if I may. Can I also tender the exhibit, BDT‑1, referred to in that affidavit? Does your Honour have the exhibit as well?
HIS HONOUR: You can, but do you need to?
MR ROBINSON: I think I do, your Honour. I need to, even if I only refer to it in reply.
HIS HONOUR: I read the affidavit of Brendon Tony Dunstan sworn 19 July 2018 and I admit as the exhibit bearing that designation exhibit BTD‑1 of that affidavit.
MR ROBINSON: I think I might have got it the other way around, sorry, your Honour ‑ it is BTD. I am happy to take your Honour through the salient parts of this affidavit. If your Honour has read the body of it, what appears at the back of it is an update of the social media, as it were, that appears now on Facebook. These are not private lists, your Honour. These are lists that are made public and, indeed, my instructing solicitor, Mr Dunstan, who swore this affidavit, pulled down this material and printed it and it is presented from – I am sorry, the pages are not numbered, your Honour, but from page 10 onwards this is an indication of what is being said about my client.
Your Honour will see, for example, on what would be page 11 my client is named, after the word “Dubbo” at point 4 on the page. Can your Honour see that? I am reluctant to name it – to say his name publicly.
HIS HONOUR: I am sorry – page?
MR ROBINSON: It would be 11, but after page 10.
HIS HONOUR: Of the affidavit are you speaking of?
MR ROBINSON: Yes, under the heading “The Criminali list”:
Red flag Alert – Red Flag Alert
Dubbo –
and your Honour sees my client’s name there. Page 10 is the District Court orders, the sealed orders of the District Court. Page 11 is a Facebook printout. Does your Honour have that?
HIS HONOUR: Yes.
MR ROBINSON: My client is named at point 4 on that page under the word “Dubbo”.
HIS HONOUR: Yes.
MR ROBINSON: If your Honour would go two pages – three pages on, the first substantive line is “a conflict of interest has not been brought to light”. Does your Honour have that page? It is really the last page of the Facebook printouts.
HIS HONOUR: I am not familiar with Facebook printouts so I am taking a while to take it in.
MR ROBINSON: Well, it is the second‑last page of the annexures, your Honour.
HIS HONOUR: Yes, I see it. Thank you.
MR ROBINSON: In the middle of the page the judge – the primary judge from the District Court is named - does your Honour see that – point 5 – is named as a sympathiser. Then the next entry is they “protect each other” and the next entry at the bottom is quite ‑ ‑ ‑
HIS HONOUR: Yes, I see.
MR ROBINSON: This is still current on Facebook, your Honour.
HIS HONOUR: Yes.
MR ROBINSON: Over the page at annexure B – it has page number 10 - your Honour will see at about point 5 on the page – this is from the New South Wales police, about four lines up from the bottom:
Facebook would not provide information on –
our client and –
Facebook would not provide information on these new groups, the identity of those making the posts, or remove the posts at the request of police.
So that is where it lies, your Honour. This material is there. My client, in this application, of course, as your Honour is aware, is attempting to stem the tide of further material which we have already had a taste of for a short period when there were not orders.
HIS HONOUR: We will just deal with the evidence for a moment.
MR ROBINSON: Yes, your Honour. They are the salient parts of that affidavit I wish to take your Honour to.
HIS HONOUR: Yes.
MR ROBINSON: I will leave the exhibit until – if it is necessary, your Honour.
HIS HONOUR: Thank you. Is there any other material upon which you rely, Mr Robinson? There were some documents that were sent to me this morning.
MR ROBINSON: Your Honour has two written submissions from us – our main submissions and our reply submissions from this morning.
HIS HONOUR: Yes. Attached to the reply, at least notionally, was a document – or several documents labelled “Attachment A”, “Attachment B” and “Attachment C”.
MR ROBINSON: I will take your Honour through those briefly.
HIS HONOUR: You wish them to be in evidence before me?
MR ROBINSON: Yes, your Honour, and in fact it is convenient for me to tender it and take your Honour through it briefly.
HIS HONOUR: I will admit those documents as exhibit 1 on the application.
EXHIBIT 1:Documents labelled “Attachment A”, “Attachment B” and “Attachment C” attached to reply submissions.
MR ROBINSON: If the Court pleases. I will take your Honour through that in a moment.
HIS HONOUR: Mr Baker.
MR BAKER: Thank you, your Honour. I seek to read an affidavit of Marley Zelinka filed 24 July 2018 and that affidavit refers to sealed orders which are marked MZ‑1 and the respondent tenders the exhibit to the affidavit.
HIS HONOUR: Yes, I read that affidavit and I admit the exhibit which will be the exhibit marking MZ‑1.
EXHIBIT 2:Affidavit of Marley Zelinka filed 24 July 2018 and exhibit MZ‑1 attached to that affidavit.
MR BAKER: Is it convenient to just make a point about the exhibit, your Honour, which I have spoken to my friend about and that is that the order is deficient in two respects. Those two respects are firstly, it refers to section 8(1)(c) rather than section 10 and it also does not set out the time of the order. Those things are referred in paragraphs 2 and 3 of Ms Zelinka’s affidavit.
HIS HONOUR: Yes.
MR BAKER: Can I also say that the parties have approached the judge to amend the order and that was done last night. We have not received an amended order but I think I can say the parties agree that the order that was
given that has not made its way into the formal order is as set out in the affidavit.
HIS HONOUR: Yes, thank you. Mr Robinson, you can take it that I have read your submissions. Is there anything you wish to add?
MR ROBINSON: There is not a lot more to say. Can I take your Honour to exhibit A so that your Honour has it in context?
HIS HONOUR: Yes.
MR ROBINSON: It is better if your Honour would – right at the top of exhibit A – I am sorry they are not consecutively numbered but attachment A in exhibit 1 – if your Honour could, right at the top, “Crown submissions CCA 20 June 2018” and your Honour will see that the passage we rely on is 16 there where the Crown submitted to the Court of Appeal that:
It is open to conclude that it was only the rim which “came off” –
et cetera, and that the court in the decision upon which we have appealed and sought special leave on, that there was “a misapprehension”. On the second page ‑ ‑ ‑
HIS HONOUR: I am sorry, when you say “20 June” these are the submissions relied on?
MR ROBINSON: By the Crown.
HIS HONOUR: By the Crown.
MR ROBINSON: Crown submissions 20 June before the Court of Criminal Appeal on the second ground.
HIS HONOUR: Yes, which fed into the judgment of 20 July?
MR ROBINSON: Correct.
HIS HONOUR: Thank you.
MR ROBINSON: Attachment B, if your Honour could, right at the top, “CCA transcript on 6 April 2018” and again, the passage we rely on is marked on the side down the bottom where the Crown talks about “wheel nuts”. Attachment C, if your Honour could, right at the top, “Applicant submissions before” - the primary judge - “North DCJ”. Again, the passage we rely on “These are our written submissions below” and below “below” if your Honour sees at 18 we rely on 18f and g.
The Court of Appeal does not seem to think so, that mental illness and so on was argued at all below, but it was, of course, in our submission, and perhaps one example of where it was – attachment D is the submissions that were made before Judge North, the oral argument. That goes three pages and again it is designed – the passage is highlighted there with a black mark on the right‑hand side. It goes to the question of mental illness and risk to our client’s mental condition and just simply to show that it was argued below. We showed the Court of Appeal these references as well, your Honour.
Attachment E is also the transcript before Judge North and there is quite a bit there and I would ask your Honour to look at only the passages there with the black marking on the page.
HIS HONOUR: Thank you.
MR ROBINSON: That is all that your Honour really needs to - your Honour would note at attachment D, at lines 5 to 10, Dalton for the applicant is talking to his Honour. He is saying:
It doesn’t appear, my learned friend will correct me if I’m wrong, the only real challenge to the evidence, the primary evidence, in regards to - or the publications speak for themselves, the various reports in the newspapers and indeed, the publications that have been identified on the social media.
Counsel for the Crown says:
That’s not challenged.
So that was the position. Two pages on, your Honour, in the transcript, and that is the same day, counsel for the Crown at line 25 is addressing the court and then at line 30, or 31, your Honour sees the sentence:
I can’t say anything in relation to –
Does your Honour have that?
HIS HONOUR: Yes.
MR ROBINSON:
and of course I don’t cavil with my friend’s submission in relation to the factual matters that have been put forward such as are outlined in the bundle. It’s difficult to challenge those.
He says at line 38:
They’re in black and white and I don’t take issue with them.
That was the lie of the land before the primary judge. There is not a lot more I can say in support of the application. We say that we are invoking the Court’s extraordinary inherent jurisdiction and the fact is the District Court order that was made only recently, and which my friend correctly said will be corrected, should simply make it correct and to give it an end time, the end time will be when the motion – the new motion before the District Court is moved on and argued.
That will happen on the 30th in a list in Dubbo with many other criminal matters listed for hearing. It may not get on at all and it may not get on until a week or two afterwards but the order of the District Court the other day is designed to protect us up until that point. The Crown can appeal it. There can be a revocation application at any time but in any event it will only live until the District Court hears this new motion.
HIS HONOUR: Yes.
MR ROBINSON: That is why we are still here, your Honour. Your Honour might be thinking why are you still here, why are you here at all when you have some protection but we say it is a limited protection, it is a fragile protection and we want the ability to prepare and conduct our special leave application without any pressure on the High Court.
HIS HONOUR: Mr Robinson, you are well aware of the procedures that accompany the filing of a special leave application.
MR ROBINSON: Yes, your Honour.
HIS HONOUR: You are asking for expedition as well as a stay.
MR ROBINSON: Yes, your Honour.
HIS HONOUR: Are you prepared to file the application book at the same time as you file your reply?
MR ROBINSON: We are certainly happy to do that, your Honour. We are ready to go, your Honour, ready to do that I mean.
HIS HONOUR: Very well. All right, thank you.
MR ROBINSON: If the Court pleases.
HIS HONOUR: Mr Baker.
MR BAKER: Thank you, your Honour. Your Honour, the respondent relies on the written submissions which set out the arguments that we make.
HIS HONOUR: Yes.
MR BAKER: The primary reason that is put forward is the fact that the District Court proceedings are now on foot and that an order has been made on Monday which will last until those proceedings conclude. The respondent’s position is that this is the most persuasive of the circumstances that are referred to by the Crown in the submissions.
HIS HONOUR: I think you told me in the submissions that the application – or the fresh application currently before the District Court is due to be heard on 30 July.
MR BAKER: Could I assist your Honour with that? It is listed in the Dubbo list on 30 July. It will be mentioned on that day – there are two week sittings. We now understand there is only going to be one judge sitting in those sittings which will be Judge North. There are many matters listed for trial which, on the face of it, have priority over this application. So that is why in the submissions we say that we have some concerns about the likelihood that it will get on during that period and particularly not, we would think, at the outset of the sittings.
HIS HONOUR: Very well.
MR BAKER: So it is the respondent’s position that the fact that this interim non‑publication order is in place now removes the need for urgent consideration of this application because there is protection on foot at the moment in relation to this applicant. That is the first issue.
The second issue is that the District Court proceedings have now, in effect, overtaken the whole of this application because insofar as it was suggested in the reply that the Crown may take the position of estoppel or an abuse of process, that is referred to in the reply at paragraph 11 – I can say that I have looked at the matter and there will be no such application or submission made by the Crown on the District Court application.
There is, your Honour will see in the reply, a reference to the possibility that the Crown might argue that there is going to be a submission made that there is estoppel or an abuse of process. That will not be a submission made by the Crown.
So, in those circumstances, this applicant will have an opportunity in the District Court to now relitigate and revisit and expand on those two issues that are referred to and described as the “wheel rim” issue and the “psychological harm” issue. So, in those circumstances, the respondent’s submission is that these fresh proceedings in the District Court in effect have overtaken this application because if the applicant is successful in the District Court he will be protected by that order. Alternatively, he will have rights of appeal through to this Court on whatever factual decisions or orders are made in the District Court in Dubbo.
HIS HONOUR: Very well.
MR BAKER: They are essentially the Crown submissions, your Honour.
HIS HONOUR: What do you say about the argument presented in the reply by reference to the attachments? Was the Court of Appeal correct in the second judgment in saying psychological harm was not put to it?
MR BAKER: On the time available I have had to look at those attachments this morning the respondent stands by the position that the Court of Criminal Appeal was correct. I note what has been referred to in these attachments but the psychological harm, or the psychological material that was before the judge in December of last year, that clearly was not referred to or not part of the appeal book in the sense that the Court of Criminal Appeal when they raised it – just excuse me while I turn this up – so, as referred to on page 2 of the reply, the court did not have before it the appeal book – or in the appeal book the references to the risk of mental harm.
There was a position taken that if the psychological harm was relied upon it would have been something that counsel would have drawn attention to – have his attention drawn to and made it clear to the court that that material was not in the book. The references to which my friend has drawn your Honour’s attention where various things are said to be not challenged and various parts of the transcript are identified, there is reference there to various parts of psychological harm but how that made its way – or did not make its way into consideration by the Court of Criminal Appeal does not seem to be clear.
Our fundamental point, your Honour, is that they will now have the opportunity to relitigate all of these issues in the Dubbo District Court in the fresh proceedings. That is clearly what we understand to be done. The estimate for that hearing, I think, will then require it to be more than a day
where witnesses will be called, including the psychologist and other witnesses. So there will be a full hearing in which I understand Ms Howell will be called, and other witnesses, that will go to this very issue. So that is, in effect, why the Crown’s position is that these fresh proceedings have overtaken the matter that is currently before this Court.
HIS HONOUR: Indeed, the entirety of the special leave application you would say?
MR BAKER: Yes.
HIS HONOUR: All right, thank you. Mr Robinson.
MR ROBINSON: Yes, just briefly, your Honour. The CCA in its first hearing did not have the second report of Ms Howell, the psychologist, because it was omitted but it had that second report before it when it made its second decision of last week. Your Honour would see from the exhibit BTD‑1, at the index on the second page, that in the third entry there is the first report at page 106, the second report is at page 131 and the third report, which was used for the second Court of Criminal Appeal hearing only is at page 134.
So the Court of Criminal Appeal did not have it for its main hearing upon which the special leave application is made. It did have it before it in the second hearing, which was decided the other day. So notwithstanding even that report, it determined, we say, wrongly, for what that is worth, that there was no mental harm issue involved in the applicant’s case. There was, and the psychologist’s report number 2, which is at page 131 of the exhibit, was before his Honour Judge North at the time of the original application. He had two reports from the psychologist.
So, in addition to that and the material that forms exhibit 1, that is our answer to what the Court of Criminal Appeal recently said which is there was not a psychological case put below. There, in fact, was. In any event, your Honour, it forms part of the matrix of the applicant’s application here.
My friend is right as to paragraph 11 of the reply submissions and given what my friend has said I would ask your Honour to draw a line through paragraph 11 and we do not press it any longer. That is the estoppel/abuse of process point. If he is not taking that point then we do not need to counter it.
HIS HONOUR: Yes.
MR ROBINSON: Finally, your Honour, the District Court application, the current order could be revoked any moment. That could be done on the Crown’s application. Secondly, it only has life until 30 July when the matter is called on. My friend says it will not get heard first. My friend, with respect, does not know. His Honour Judge North has dealt with the matter right from the very beginning to the criminal trial and to the sentencing and to the original suppression order. So he may well deal with it sooner rather than later in which case the orders that were made by the District Court the other day only have a very short shelf life and, as I submitted earlier, they are fragile in status. They could be removed at any moment.
What we are after is an order that will protect my client to the point in time when the special leave is actually conducted. Alternatively, as we have said in the reply submissions, your Honour, if your Honour is of the view that we have protection enough and we can come back if we are in trouble, then your Honour might stand the motion down until some time after – or on 30 July and then we will be back here troubling your Honour a second time, which we would rather not do. If the Court pleases.
HIS HONOUR: Yes, very well. I propose to take an adjournment and I will make orders and give reasons at 11.00 am.
AT 9.56 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 10.59 AM:
HIS HONOUR: I am in a position to give judgment.
The applicant pleaded guilty in the District Court of New South Wales to historic child sex offences which occurred in the 1980s and for which he was sentenced to terms of imprisonment, the execution of which was suspended. Subsequently, the applicant sought and obtained from a judge of the District Court an order under section 7 of the Court Suppression and Non‑publication Orders Act 2010 (NSW) suppressing and prohibiting the publication of information tending to reveal his identity. That order, which was made by North DCJ on 12 December 2017, was, on 6 June 2018, ordered to be set aside by order of the Court of Criminal Appeal on appeal by way of rehearing by the Crown in a judgment from which the applicant, on 4 July 2018, sought special leave to appeal to this Court.
The applicant applied for and was, on 20 July 2018, refused by the Court of Criminal Appeal a stay of its orders pending the determination of the special leave application. The orders which the Court of Criminal Appeal then made were relevantly limited to staying the orders it had made on 6 June until the first occurring of 30 July 2018 or the grant or refusal by this Court of a further stay.
Before me today is an application made by summons filed by the applicant on 20 July 2018 for a stay of the orders made by the Court of Criminal Appeal on 6 June pending the determination of the special leave application. What the applicant seeks from this Court, in effect, is a continuation of the orders made by North DCJ on 12 December 2017 until his special leave application is determined.
The gravamen of the application is that the applicant argues that based primarily, but not exclusively, on events which occurred between June and December 2017, if further publication identifying him with the proceedings in which he pleaded guilty to and was sentenced for the historic child sex offences is permitted, there is a real prospect that he will be subjected to a public vilification campaign which will adversely affect his safety and that of his family.
The Crown opposes the application, relying on the analysis of the Court of Criminal Appeal in its judgment of 20 July to demonstrate that the application for special leave to appeal has little or no prospect of success, and pointing out that the applicant on 4 July 2018 made a fresh application to the District Court for a further order under section 7 of the Court Suppression and Non‑publication Orders Act.
That fresh application is listed for mention before North DCJ on 30 July 2018. The estimate of the parties as to the hearing before his Honour, when it occurs, is that it will take a day and that evidence will be received. Whether the matter will be reached in the two‑week sitting scheduled to commence on 30 July is unclear. In the meantime, Berman DCJ, on 23 July 2018, made by consent an interim non‑publication order. Although that order is deficient in form, there can be no doubt that it is, as it purports to be, an order under section 10 of the Court Suppression and Non‑publication Orders Act. As an order under that section, subject to revocation by the court, it has effect until the fresh application is determined.
The principles informing the discretion to grant a stay in this Court are not in dispute. Justice Brennan emphasised in Edelsten v Ward (No 2) (1988) 63 ALJR 346 that the jurisdiction of this Court to grant a stay to preserve the subject matter of litigation pending the making of an application for special leave to appeal is an exceptional jurisdiction. The jurisdiction is not available merely to keep matters in status quo until litigation is finally resolved.
Subject to considering the significance of the fresh application that has been made to the District Court, there is no dispute between the parties that a stay is required to preserve the subject matter of the proposed appeal, narrowly and formally defined as the existing order of North DCJ as made on 12 December 2017. For this Court to go further and to find that a stay is required to preserve the safety of the applicant or any other person would involve canvassing the conclusion reached by the Court of Criminal Appeal on the merits of the case before it. The extent to which it is arguable that a stay is required to preserve the safety of the applicant or his family is best assessed in the circumstances of the case in the context of considering the applicant’s prospects of success on the application for special leave to appeal.
To be weighed then are the prospects of success and the balance of convenience.
As to the prospects of success, the application for special leave seeks to raise four grounds of appeal. Of them, only the first raises a question of principle which, in an appropriate case, might warrant the grant of special leave. That question is as to the meaning and application of the concept of necessity to protect safety in section 8(1)(c) of the Court Suppression and Non‑publication Orders Act. The view on which the Court of Criminal Appeal proceeded was that an order is necessary to protect the safety of a person within the meaning of the section if there is a real risk of physical harm. There is no basis for considering that the court elevated the test of necessity from one of real risk to one of likelihood.
To the extent that the applicant seeks to argue that the Court of Criminal Appeal erred in failing to consider a real risk of psychological harm, the absence of findings of fact by either North DCJ or by the Court of Criminal Appeal makes this a particularly unattractive vehicle for this Court to consider on appeal any concomitant issue of principle concerning the scope of the statutory concept of safety.
Whether the Court of Criminal Appeal was correct to conclude in its judgment of 20 July 2018, when rejecting an application for leave to reopen its decision of 6 June, that the applicant’s case for a stay was never put to it or to North DCJ on the basis of psychological harm is a topic on which I do not need to reach a firm view.
What is clear is that psychological harm was not at the forefront of the case, was not explored in submissions in any detail and that the result is that the nature and degree of psychological harm is simply not the subject of any findings that could inform the consideration of this Court.
The present case does not, in those circumstances, present as a suitable vehicle for considering the question of principle which the applicant now seeks to raise. To the extent that the applicant seeks to canvass the factual analysis of the Court of Criminal Appeal it is difficult to see that the applicant has a realistic prospect of this Court disturbing the conclusion of that court of an absence of a real risk of physical harm, even taking into account what might be referred to as the “wheel incident”. The explanation of the Court of Criminal Appeal in its judgment of 20 July convinces me that the court did not, in its earlier judgment, proceed on a misapprehension of the evidence despite a concession of the Crown before that court that it was open to conclude otherwise.
The fresh application to the District Court, to which I will refer in the context of considering the balance of convenience, removes the sting of the applicant’s complaint insofar as it is sought to be founded on the asserted occurrence of procedural irregularity. This is not a case of the truly exceptional kind in which special leave might be granted to address manifest injustice.
As to the balance of convenience, the fresh application which the applicant has chosen to make to the District Court in my opinion weighs heavily against a stay being granted by this Court. If the application were to be successful the new order would achieve the same effect as the stay. In the interim, the consent order of 23 July is in place which itself achieves the same effect as the stay.
Before me the Crown has made clear that it will not raise any argument on that application as to estoppel or abuse of process and that it will concede that it is open to the applicant to lead further evidence, including as to the wheel incident to seek to establish the risk of both physical harm and psychological harm to the applicant and his family.
In the result I am not satisfied that the grant of a stay by this Court is warranted. Nor in the circumstances in which the application has been made at a late stage in the process prescribed by the High Court Rules for dealing with a special leave application am I satisfied that anything useful would be achieved by making an order for expedition.
The order I am prepared to make is one for bringing forward by three weeks the time fixed by rule 41.07.6 of the High Court Rules for filing and serving copies of the application book. The parties can be assured that once the application book is filed and served the application for special leave will be dealt with in a timely way in accordance with the usual procedures of the Court. The application will otherwise be dismissed.
The orders that I make are therefore as follows:
1.The applicant is to file and serve copies of the application book at the time fixed by rule 41.06.1 of the High Court Rules 2004 (Cth) for the filing and serving of a reply.
2.The summons filed on 20 July 2018 is otherwise dismissed.
MR ROBINSON: May it please the Court.
MR BAKER: If the Court pleases.
HIS HONOUR: I will now adjourn.
AT 11.11 AM THE MATTER WAS CONCLUDED