AB v Director of Public Prosecutions (Cth)

[2006] HCATrans 234

[2006] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A8 of 2006

B e t w e e n -

AB

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Respondent

Summons

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 MAY 2006, AT 9.17 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honour, I appear for the applicant.  (instructed by George Mancini & Co)

MS W.J. ABRAHAM, QC:   If it please your Honour, I appear for the Director.  (instructed by Director of Public Prosecutions (Commonwealth))

HIS HONOUR:   Yes, Mr Walker.

MR WALKER:   Your Honour has, I think, an application for special leave to appeal and I trust your Honour has seen the summons which seeks an order for expedition of that application for special leave to appeal.  May I inquire whether your Honour has also had the opportunity to see the two affidavits of my instructor George Joseph Stephen Mancini?

HIS HONOUR:   I think I only have one of them at the moment, Mr Walker.  I have one which is dated 9 May.  What is the date of the other one?

MR WALKER:   Your Honour, I wish I knew.  Being only counsel, I have unsworn copies I am afraid.  Does your Honour have the one that exhibits all the documents?

HIS HONOUR:   Yes, it will be there, Mr Walker.  I will just get it out.

MR WALKER:   20 April, your Honour.  The one that exhibits all the documents, as it were, application book style is 20 April.  The one to which your Honour referred, 9 May, is the one which declares itself to be for the purposes of seeking orders for expedition and confidentiality.

HIS HONOUR:   Yes, I have those now, Mr Walker.

MR WALKER:   Does your Honour wish me to read those?

HIS HONOUR:   You mean ‑ ‑ ‑

MR WALKER:   Aloud.

HIS HONOUR:   No.  Mr Walker, just tell me what the basis of the matter is.  Why the confidentiality?  Just explain that to me.

MR WALKER:   The confidentiality arises from the nature of the assistance given ‑ ‑ ‑

HIS HONOUR:   And the jeopardy that that has placed him in in prison?

MR WALKER:   ‑ ‑ ‑ and the jeopardy which is something which ‑ ‑ ‑

HIS HONOUR:   A bit like the York Case.

MR WALKER:   It is so tempting to say yes, but no.  Only in the broadest generic sense can I say that.  It has none of the special evidence which was available in the York Case.  Indeed, that will be, I have no doubt, a subject of some contest from the DPP were I to put an argument at special leave.

HIS HONOUR:   Well, in any event, it is sufficient for your purposes that he is in jeopardy, is that right?

MR WALKER:   That is accepted at the first instance sentencing court.  It is accepted, albeit without anything special a la York, in the Court of Criminal Appeal.

HIS HONOUR:   I really do not understand why he is at particular jeopardy in prison or what suppression would do to help him to ameliorate his conditions or to make him less endangered.

MR WALKER:   It is the capacity for those in prison to know who he is ‑ ‑ ‑

HIS HONOUR:   Because he is there under a false name?

MR WALKER:   He is there under a false name.  So it is to protect the security of the pseudonym which is given to him in prison for security purposes under the South Australian provisions that your Honour has seen, the confidentiality or the embargoing of access to the file.

HIS HONOUR:   When you say confidentiality, what you want are orders of non‑access to the file?

MR WALKER:   Non‑access, except upon notice permitting an opportunity to be heard and pseudonymous designation of my client.

HIS HONOUR:   All right, and expedition so that if the appeal succeeds he will not have served a lengthy term of imprisonment?

MR WALKER:   Yes.  The argument cannot stand any elaboration.  It is as simple as it is.  The first instance decision was one which, while imposing a sentence of imprisonment, wholly suspended it on the usual onerous conditions.  There is, of course, to the forefront of our proposed appeal, were we granted special leave, the simple but critical point that there is insufficient demonstration of the kind of error which would justify the rare and exceptional case of a Crown appeal on severity succeeding.  There are

other points that your Honour has seen reference to, but as counsel I am bound to tell your Honour that they have yet to reach the stage of proper refinement which would be reflected in an outline in support of the special leave application.

HIS HONOUR:   I think I will hear the Director then.

MR WALKER:   If it please the Court.

HIS HONOUR:   Yes, Ms Abraham.

MS ABRAHAM:   Your Honour, we are obviously ready to argue whenever the Court lists the matter, but can I just make the observation in the Crown submission there is, in fact, no basis for expedition.  The draft special leave grounds we have are really well settled areas of law and, indeed, an application of the facts to the law.

HIS HONOUR:   That is an argument as to the merits, is it not?  What is the policy reason for opposing expedition?

MS ABRAHAM:   I am sorry.  All I am doing is making the observation that in the Crown’s submission there is no basis for it.  We will be ready to argue if your Honour orders expedition.  So in one sense it is not an opposition.  We are in the Court’s hands what the Court does about it, but there is nothing out of the ordinary, in the Crown’s submission, in this case as opposed to any other.  The question of confidentiality ‑ ‑ ‑

HIS HONOUR:   Except that if he succeeds he has served a term or a period of imprisonment which he should not have served and as time goes on that period lengthens and he is serving it anyway under onerous conditions.

MS ABRAHAM:   Your Honour, I make two comments about that.  In most criminal matters that come before this Court on special leave applications people are in custody, the result of which might end up being that they are not ‑ ‑ ‑

HIS HONOUR:   Yes, I know, and it is a very, very harsh thing, as I have observed on other occasions.  I think I observed it in an application Mr Walker made to me.  I observed it in my reasons for judgment.

MS ABRAHAM:   Your Honour, I am not quibbling ‑ ‑ ‑

HIS HONOUR:   That was a case in which ultimately the applicant was acquitted, was it not?  Was it Hanson, Mr Walker?

MR WALKER:   Yes, quite so, your Honour.

MS ABRAHAM:   Indeed, I am not quibbling with that.

HIS HONOUR:   No, I cannot think of a worse thing – one can always think of worse things, but what a dreadful thing it would be to have served a term of imprisonment – a period of imprisonment which you should never have served.  There is no compensation ‑ ‑ ‑

MS ABRAHAM:   Absolutely, but my only observation was ‑ ‑ ‑

HIS HONOUR:   Anyway, that is really by the by.

MS ABRAHAM:   ‑ ‑ ‑ that this is in essence no different from the other.

HIS HONOUR:   Any rate, you do not oppose the application?  You just say that in your submission there are no grounds to single it out for expedition, is that right?

MS ABRAHAM:   And we would say no arguable points in the draft grounds, at least, we have received.

HIS HONOUR:   All right.  There is nothing else you want to say about ‑ ‑ ‑

MS ABRAHAM:   No.

HIS HONOUR:   What do you say about the confidentiality?

MS ABRAHAM:   Your Honour, in terms of the Court file, the Crown does not oppose the Court file – no access to that except in certain circumstances.  The judgment is under the title AB and my understanding is well and truly accessible because matters relating to his identity have been withdrawn from the judgment and an edited form has been published.  So I am just not quite sure what further orders are sought in relation to that.  Any written submissions and the like I doubt would touch upon questions of identity, but one assumes that the ‑ ‑ ‑

HIS HONOUR:   I suppose that is the possibility, that somebody gets interested in it in – a journalist gets interested in it in South Australia and comes to the Court file here.  All right.  I might see what Mr Walker says about that if ‑ ‑ ‑

MR WALKER:   Your Honour, the reason that we seek that order is, first, in order to regularise my client’s filing process in this Court under the initials AB.  I do not understand that is opposed.  From what my friend says, that would appear to be appropriate so as not to render nugatory the benefit of the orders obtained in the South Australian courts.  That is the first thing.  The second thing is we respectfully adopt what your Honour has put.  It is, whether for good or ill, part of the job of journalists to make investigations of documents which are open for public inspection.

HIS HONOUR:   How would you tailor the order, Mr Walker?

MR WALKER:   Your Honour, we would simply ask for an order that there be no public access to the file of this Court in the matter except upon seven days prior notice to both parties in the case.

HIS HONOUR:   The courts, as you well know, are very reluctant to make suppression orders.  There was a suppression order made by the primary judge, was there not?

MR WALKER:   There was.  There have been orders made from first instance and appeal.  They have included what might be called a battery of orders.  They have been clearing the court, closing the court and there has been, most importantly for present purposes, the use of this pseudonymous initials and the restriction of access so as to require prior notice and the possibility of argued opposition.

HIS HONOUR: I have not looked at section 69A of the Evidence Act (SA) but I do have the impression that suppression orders are made much more frequently in South Australia than anywhere else in Australia and that the provisions are somewhat more ample. Is that right?

MR WALKER:   Your Honour’s impression is shared, I think, at the Bar table.

HIS HONOUR:   Not a bad thing in some circumstances.

MR WALKER:   Where life and limb ‑ ‑ ‑

HIS HONOUR:   I mean, sometimes a lot of damage can be done in committal proceedings, for example.

MR WALKER:   Quite.  The publication of inadmissible evidence, if I may digress very briefly, rather tends to suggest the wisdom of the old and current American notion of the grand jury being secret but, your Honour ‑ ‑ ‑

HIS HONOUR:   I mean, it is the reason why a lot of high profile defendants forego a committal because of the irreparable damage that their advisers sometimes think it will cause.

MR WALKER:   Hope that the contents of the paper committal do not somehow fall off the back of a truck.  Your Honour, may I say this.  Of course, our application has nothing to do with the jeopardy to fair trial values that your Honour has just been referring to.  It, of course, has nothing to do with what I am going to call embarrassment.  I do not mean to diminish the importance of reputational harm, but this is not what I will call an embarrassment case, nor is it a case about children, but it does belong ‑ ‑ ‑

HIS HONOUR:   I do not think I need to hear you any more, Mr Walker.

MR WALKER:   If it please your Honour.

HIS HONOUR:   I think there is a place available on 2 June.  Yes, I am prepared to make an order for expedition, that the matter be in the list to be heard on 2 June at the Melbourne sittings.  There will be a video link – I do not know whether the parties intend to be represented in Melbourne, but there will be a video link available and we would like to know whether it will be utilised for this case at some stage before then.

MR WALKER:   Yes.

HIS HONOUR:   Now, I am prepared to make an order for confidentiality generally along the lines of the order that was made by the judge at first instance but which would deny access to the papers subsequent to the trial and also that the order be subject to a right to be heard in the event that access is sought by anybody, but I would ask you, Mr Walker, to draw that order.

MR WALKER:   Yes, may it please your Honour.

HIS HONOUR:   What I have indicated is sufficient to the Director?

MS ABRAHAM:   Yes, I would think that is more than sufficient.

HIS HONOUR:   If you two can agree upon an order preferably before the end of today and I will formalise it and make it.  All right, nothing further?

MR WALKER:   Your Honour, we have discussed among ourselves the consequences of expedition in terms of the time for prior steps and we would suggest that the applicant ought to be directed to file and serve its summary of argument by Thursday, 18 May and that the respondent should be directed to file and serve its answering summary by Thursday, 25 May.

HIS HONOUR:   Is that satisfactory to you?

MS ABRAHAM:   It is.

MR WALKER:   Your Honour, if there were need for reply, not something I anticipate, but if there were need for reply we understand that it would have to be in a good day before the hearing.

HIS HONOUR:   Would you incorporate those proposals in the draft order?

MR WALKER:   May it please the Court.

HIS HONOUR:   All right.  Thank you.

AT 9.31 AM THE MATTER WAS CONCLUDED