Abibadra & Ors v The Queen

[2011] HCATrans 140

[2011] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S182 of 2011

B e t w e e n -

CAROL ABIBADRA

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S183 of 2011

B e t w e e n -

DEBORAH JUDITH JANDAGI

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S184 of 2011

B e t w e e n -

KEVIN ZERAFA

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 2011, AT 2.31 PM

Copyright in the High Court of Australia

____________________

MR D. JORDAN:   May it please the Court, I appear in matter S182/2011 for the applicant.  For the purposes of today, I also appear in matter S184/2011 for the applicant, who is otherwise represented by MR P.S. HASTINGS, QC.  (instructed by Brown Wright Stein)

MR K.H. AVERRE:   May it please the Court, I appear in matter S183/2011 for the applicant.  (instructed by Brown Wright Stein)

MR P. COADY:   May it please the Court, I appear for Mr Robert Agius.  Mr Agius’ matter does not appear in your Honour’s list.  That is because the application for special leave to appeal will only be filed on Monday afternoon.  However, he is listed on the indictment as well and will follow along with the other three applicants.  Obviously my submission will be that whatever orders are made in relation to the three applicants, Mr Agius’ matter should follow along, your Honour.  (instructed by Greg Murray Law)

HER HONOUR:   Thank you, Mr Coady.

MR P.W. NEIL, SC:   May it please your Honour, I appear with my learned friend, MS S.M. McNAUGHTON, for the respondents.  Your Honour, just on the matter of Mr Agius, the Crown agrees that he should effectively be joined in what occurs today.  (instructed by Commonwealth Director of Public Prosecutions)

HER HONOUR:   Yes, Mr Jordan.

MR JORDAN:   Your Honour, hopefully you have been provided with the applications for special leave.

HER HONOUR:   Yes, I have.

MR JORDAN:   They were filed only yesterday.

HER HONOUR:   Yes.  There is an affidavit filed in support of the proceedings in Abibadra by Suzie Manassa.

MR JORDAN:   Yes, your Honour.  There is one affidavit filed, but you will see it is filed in relation to all three matters.

HER HONOUR:   I see, yes.

MR JORDAN:   That is an affidavit in support of our application that the hearing of the special leave application be expedited.

HER HONOUR:   Yes.  Is there any objection to any part of that affidavit, Mr Neil?

MR NEIL:   No, your Honour.

HER HONOUR:   Yes, very well.  What is the present position, Mr Jordan, as far as the trial is concerned?  I understand the parties were before Justice Simpson earlier today?

MR JORDAN:   Yes, your Honour.  Your Honour, the matter is still pending before her Honour Justice Simpson.  There are a number of outstanding matters that I do not think I need to trouble your Honour with, but they relate to materials still to be provided and ‑ ‑ ‑

HER HONOUR:   There was a trial date fixed for 27 April.  That is now an historical fact.  Is there presently a trial date?

MR JORDAN:   No, there is not, your Honour.  27 April was the first day listed for the trial.  That was the day on which the applicants made the first application by notice of motion before Justice Simpson.  So on 27 April, the issues which we seek to ventilate in this Court were ventilated before her Honour Justice Simpson.  Her Honour delivered a judgment fairly quickly after that.  We went to the Court of Criminal Appeal.  In the interim, we have been continuing to work on the trial, but the principal point I think which has been made in terms of the application for the expedition of the special leave hearing is that the point, if it is a good point, has a very substantial impact on the scope of the trial and the materials which may or may not be admissible.

HER HONOUR:   Yes.  Perhaps I might take the matter up with Mr Neil.  It is desirable, one would think, that the matter receive expedition with a view to a determination of the leave application sooner rather than later to avoid any inconvenience in terms of the conduct of the trial, if there is to be a trial, on the present indictment.

MR NEIL:   It is, your Honour.

HER HONOUR:   Do I take it there is no opposition from you ‑ ‑ ‑

MR NEIL:   Your Honour, the Crown supports the application for expedition, the special leave applications.  The Crown will oppose grants of special leave.  Should special leave be granted, the Crown would support any application for the expedition of the hearing of the appeals.

HER HONOUR:   I understand.  What I am minded to do is this.  The next date for the hearing of special leaves in Sydney is Friday, 10 June.  There is already a full list and it is simply not possible to squeeze these four matters, as it turns out, into that list.  I have in mind granting expedition and standing the three applications over on the basis that Mr Agius’ application, if filed in a timely fashion, can also be heard on Wednesday, 15 June 2011.

Now, that will involve considerable compression of the timetable in terms of the parties’ submissions and the preparation of the application book, but do I take it the parties are able to accommodate that timeframe, that is, a hearing of the special leave application on Wednesday, 15 June?  What I had in mind would be that the applicants file their summary of argument by 3 June, that is a week from today, with the respondent to file by the following Wednesday, that is, 8 June, which would give two days for a reply. 

Now, in terms of physically putting together application books, provided the summary of argument is in and any other material necessary for the determination of the application, if there is a physical difficulty in putting the books together, so be it, but is that timetable a workable one?

MR NEIL:   It is, your Honour.  I am sure I speak for all my colleagues in saying that.

MR JORDAN:   Yes, your Honour.  I agree and I think that is certainly something that can be done.  The materials for the application book will be confined.  It is a confined point.

HER HONOUR:   It is a discrete issue, is it not?

MR JORDAN:   It is, yes.

HER HONOUR:   Yes, very well.  If I make directions in those terms I think that will be sufficient for your purposes, gentlemen.

MR JORDAN:   Thank you, your Honour.

MR NEIL:   It would, your Honour.  Your Honour, we would have assumed that a joint application book would be all that would be required?

HER HONOUR:   Yes.  In each of the matters I make the following orders:

1.The application for special leave is expedited.

2.The matters in each case are stood over for hearing before the Court in Sydney at 9.30 am on Wednesday, 15 June 2011.

3.The applicants are to file and serve a summary of argument by close of business on Friday, 3 June 2011.

4.The respondent is to file and serve its summary of argument in each matter by close of business on Wednesday, 8 June 2011.

5.The applicants are to file their replies by close of business on Friday, 10 June 2011.

6.As a practical matter, an application book could then be filed by Tuesday, 14 June 2011.

MR JORDAN:   Thank you, your Honour.

HER HONOUR:   Yes.  I so direct.  If there are no further matters, I will adjourn.

AT 2.41 PM THE MATTER WAS ADJOURNED