Alqudsi v The Commonwealth of Australia; Alqudsi v The Queen

[2015] HCATrans 163

[2015] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S119 of 2015

B e t w e e n -

HAMDI ALQUDSI

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Sydney  No S132 of 2015

B e t w e e n -

HAMDI ALQUDSI

Applicant

and

THE QUEEN

Respondent

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT PERTH BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 15 JULY 2015, AT 10.01 AM

Copyright in the High Court of Australia

____________________

MR D.P. HUME:   May it please the Court, I appear for the plaintiff in S119, and the applicant in S132.  (instructed by Zali Burrows Lawyers)

MR C.L. LENEHAN:   May it please the Court, I appear for the Commonwealth in S119 of 2015 (instructed by Australian Government Solicitor), and with MS J.M. SINGLE in matter S132.  (instructed by Director of Public Prosecutions (Cth))

HIS HONOUR:   Yes, Mr Hume.

MR HUME:   Yes, your Honour.  The position that we take this afternoon is that the determination of the Commonwealth summons in S119 should be adjourned and heard concurrently with the removal application in S132.  We are willing and able to facilitate that removal application to be determined expeditiously.  This morning Mr Alqudsi filed a summons seeking adjournment in S119.  The basis on which we seek those orders is set out in the written submissions that were filed on Monday morning.

Essentially, if the Commonwealth summons were to be determined today and were to be determined adversely to Mr Alqudsi we say, first, that will result in a matter being with the Supreme Court in circumstances where there remains a real possibility that a connected controversy will be determined in this Court and it is inconvenient for that result to follow.

Secondly, we say – and I understand the Commonwealth’s position to be that the determination of the remittal application will, in substance, determine the issues in the removal application and, in my submission, it would be inconvenient to impair the potential exercise of this Court’s jurisdiction on the removal application which is this morning listed only for directions.  So I am willing to speak this afternoon, if you wish, on issues related to the remittal application, but that is the primary way in which we put it.

HIS HONOUR:   Well, what further would need to be done in relation to the removal application?  It seems to me the practical issues are effectively the same, are they not?  It is really to do with the case management of the relationship between pending proceedings in the Supreme Court of New South Wales and the proceedings which you have commenced in this Court.

MR HUME:   Yes, that is so, and the steps that we would propose to bring the removal application and any adjourned remittal application to an expeditious hearing would be the filing of written submissions in accordance with the usual Court ‑ ‑ ‑

HIS HONOUR:   Well, wait a minute.  How complex are the arguments?  I mean if you were to lose on the remittal application what more could you say in favour of the removal application?

MR HUME:   Your Honour, the first way in which the Commonwealth puts the opposition to the S119 remaining in this Court is the fragmentation of criminal proceedings and, obviously, we say that does not arise if the whole of the cause is removed.

HIS HONOUR:   You want a criminal trial to be removed into this Court?

MR HUME:   Yes, your Honour.  Now, other than that, it may very well be that similar issues would arise but what we would ask is for the opportunity to put on written submissions in accordance with the usual Court ‑ ‑ ‑

HIS HONOUR:   What are you going to say that is different from what you would say in answer to the remittal application and which you have already said, I think, in the affidavit filed in support of the removal application?

MR HUME:   It may very well be, your Honour, that the removal raises a more crystallised issue for this Court than would arise in any declaratory proceedings before the Court on any removed proceedings would be an indictment ‑ ‑ ‑

HIS HONOUR:   Well, the proceeding ‑ as I understand it, what you want to do if you get removed into this Court is to then file a motion, or a summons, to quash the indictment and that would be the issue which you would want to have determined by this Court.  How is that different from the declaratory relief that you are seeking in terms of the issues that would have to be addressed?

MR HUME:   Yes, it may be that the provision is valid but, nevertheless, needs to be read down, and so read down cannot capture the conduct that is stated in the indictments.  That is why we say that the matter constituted in the Supreme Court may very well raise distinct issues from those pressed in the declaratory proceedings, and in circumstances where there would be an indictment before this Court there would be particulars before this Court in respect of that indictment.  The issues raised may be more crystallised and apt for resolution by this Court.

HIS HONOUR:   Now, is there any material that you have put on to address the question of delay in bringing the proceedings in this Court?

MR HUME:   Your Honour, the position as to delay – I have to accept that there has been – the issue as to the constitutional invalidity of section 7(1)(e) was first raised by my instructing solicitor late last year.  What I can say from the record is that the indictment was not presented to the Supreme Court until May of this year.  Within a month and a half of that the High Court proceedings in S119 were commenced.  The Commonwealth then filed its summons seeking remittal in part on the basis that there was fragmentation of the criminal proceedings before the Supreme Court and shortly after that my client filed this removal application.  My client now seeks the expeditious determination of the removal application.

Now, I understand the Commonwealth says, well, this will prejudice, or may prejudice the trial date that has been fixed in the Supreme Court.  What I would say on that is that that may very well happen irrespective of what happens in this Court.  The Commonwealth’s position is that the declaratory proceedings should be remitted to the Supreme Court, I understand, and determined in advance of the hearing, and it would not be unforeseeable that if those declaratory proceedings are determined adversely to my client that there would be an appeal to the Court of Criminal Appeal and ultimately a possible special leave application in this Court. 

That certainly has happened in a number of cases, not just in the recent past.  So there may very well be an inevitable prejudice to that hearing date, irrespective of what happens and whether these proceedings stay in this Court.

The other thing I would say is that there is often in these criminal cases a risk that there will be some prejudice to the position as to evidence where there is a delay in the trial, but I understand the Commonwealth’s position to be that the bulk of the evidence in these criminal proceedings is evidence of transcripts of intercepted telecommunications and I would say that that is not a case where the ordinary concerns as to loss of witnesses’ memory and recollection would ordinarily arise.  So I suppose that is what I would say on the question of delay, your Honour.

HIS HONOUR:   Yes, just a minute.  Now, Mr Hume, if I were disposed to grant your adjournment application would there be any reason why both matters could not be ready for hearing on Monday?

MR HUME:   Your Honour, the issue that I have is the silk that we have approached to assist with the removal application we have not been able to contact to determine his availability.  I understand that he is ‑ ‑ ‑

HIS HONOUR:   Well, this matter is not going to be determined by the availability of silk.  This matter is to be determined expeditiously.

MR HUME:   Yes.  Your Honour, I have discussed with my friend the possibility of having written submissions in this matter filed ‑ my preference was for next Wednesday; my friend’s preference, I understand, was for Friday of this week.  Aside from the availability of silk ‑ ‑ ‑

HIS HONOUR:   I must say, that is what I am thinking, Mr Hume.  It is not exactly rocket science we are dealing with here, it is case management.

MR HUME:   Yes.  Your Honour, aside from the availability of silk, I have no reason why this cannot be determined next Wednesday – sorry, I withdraw that – next Monday.

HIS HONOUR:   All right, I will hear from other counsel, Mr Hume.  Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  The adjournment application is opposed.  In relation to what my friend says, your Honour, we made consensually three points.  First, the removal application is unlikely to succeed, and my friend says, well, the removal application may better crystallise the issue for this Court.  In fact – and your Honour would have seen this from the submissions that the Commonwealth has filed on 13 July – there is no issue in controversy in the Supreme Court proceeding as to the validity of the Act.  What seems to be said – and I think your Honour alluded to this – is that a removal application is granted and then my friend will make the application in this Court to quash the indictment.  We say that that is a fairly novel view of the removal power.

We also say – and this is at paragraph 13 – that there is actually a straightforward way in which – if my friend is seriously committed to the removal application he could bring that application without any of the issues that we have adverted to in our submissions, which seem to us to raise real questions about an abuse of process; that is, to discontinue the current proceedings, file the foreshadowed application in the Supreme Court and then proceed with removal.

HIS HONOUR:   Well, I suppose if the – would it make any difference if the relevant motion was filed in the Supreme Court?  I mean, would there be a need to discontinue and start again?

MR LENEHAN:   Your Honour, the only reason I say that is because, as we apprehend it, the reason that that has not been done to date is a concern about abuse of process.  I may be wrong in that, but that is as we would apprehend it, the reason this issue has not crystallised to date, and that, in my submission, reveals that there are some serious procedural problems with what is sought to be done.

In relation to the second point, my friend disputes that the issues in the remittal and the removal application would be – and we put this entirely co‑extensive – and the only point in answer to your Honour’s question that he raises as to how they would differ is an assertion that if the criminal matter is removed in its entirety into this Court there will not be fragmentation and, for the very reason that your Honour gave, that is, the unlikelihood of this Court conducting a criminal trial, that must be wrong and, in any event, the authorities that evince reluctance to grant this sort of application speak more generally in terms of disturbance and that is what we rely upon.

That then leads to the third point, which is the way that the Commonwealth says, in a practical sense, this matter could be resolved, that is, hear the remittal application today.  That, in my submission, would lead to a significant narrowing at least of any issues on the removal application and may avoid the need altogether for the removal application to be heard.

I hear what your Honour has said to my friend in discussing timetabling, and if your Honour is nevertheless minded to grant the adjournment then my submission would be that the procedure that your Honour has referred to, that is, written submissions from both parties due on Friday and the matter be heard on Monday, is the appropriate way forward.

HIS HONOUR:   Yes, all right.  Thank you, Mr Lenehan.  Ms Single.

MS SINGLE:   Your Honour, the Commonwealth Director has nothing to add in relation to the remittal application.

HIS HONOUR:   Thank you.  Mr Hume, in reply.

MR HUME:   Your Honour, the only point I would make in reply is to briefly respond to the suggestion by Mr Lenehan that there is something controversial or that there may be some abuse in Mr Alqudsi commencing

declaratory proceedings in this Court while there are pending criminal proceedings against him in the Supreme Court.  That was precisely the approach that was taken in the case of XYZ which is referred to in my friend’s submissions where original jurisdiction proceedings seeking declaratory relief were commenced in this Court at the same time as there were pending indictment – proceedings on indictment in the Supreme Court.  So all I would say is I reject the characterisation of these proceedings is in any way an abuse of process.

HIS HONOUR:   All right, thank you.

MR HUME:   May it please the Court.

HIS HONOUR:   Now, in each matter, the remitter application and the removal application, I will order that:

1. The hearing of the application be listed for Monday, 20 July at 12 noon Australian Eastern Standard Time.

2. Any further written submissions to be filed and served by close of business on Friday, 17 July.

I do not think there are any further orders I need to make.  The matter will be set up by way of video link from Perth on Monday.  The Court will adjourn.

AT 10.19 AM THE MATTERS WERE ADJOURNED