Ansari v The Queen

[2009] HCATrans 198

[2009] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S479 of 2007

B e t w e e n -

HAJAMAIDEEN MOHAMED ANSARI

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S481 of 2007

B e t w e e n -

ABDUL AZEES MOHAMED ANSARI

Applicant

and

THE QUEEN

Respondent

Applications for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 AUGUST 2009, AT 9.33 AM

Copyright in the High Court of Australia

__________________

MS C. NASH:   If your Honour please, I appear for both applicants.  (instructed by Ford Criminal Lawyers)

MR P.W. NEIL, SC:   I appear for the respondent, may it please, your Honour.  (instructed by Commonwealth Director of Public Prosecutions)

HER HONOUR:   Now, I have read an affidavit filed by your solicitor, Ms Nash, the affidavit of Christopher John Ford which was filed on 10 August 2009.  Mr Neil, any objection to any part of that?

MR NEIL:   No objection and may I just say to your Honour that the respondent’s position is that we do not oppose the application.  We do not formally consent, but that is our position.

HER HONOUR:   Thank you.  In light of the contents of the affidavit my inclination is to grant the relief which is sought which is an order reinstating the proceedings pursuant to rule 41.13.

MR NEIL:   Yes, your Honour.

HER HONOUR:   Now, it is just a question of directions for the future conduct of the matter.  Ms Nash, there have been considerable difficulties in getting the application books prepared.  The rules give one 21 days.  The summary of argument is on from both sides.  How quickly can the application books be filed?

MS NASH:   Your Honour, I will have to get instructions on that.  I am only briefed for today in this application.  Counsel, I understand, who is briefed in it is Mr Robinson, SC.  If your Honour would allow me, I will just get some instructions from Mr Ford in relation to that.

HER HONOUR:   Yes.

MS NASH:   Your Honour, I am instructed that because of the lack of funds that were available to this point, the counsel in the matter had first asked this hurdle to be overcome and it is only after the outcome of today that we will be in a position to advise the Court as to how long it will take.  But, obviously, if your Honour were to put a time on it, it would have to be complied with.

HER HONOUR:   I intend to put a time on it.

MS NASH:   I thought so, I anticipated that.

HER HONOUR:   Let us just go back to the rules.  The rules allow 21 days.

MS NASH:   Would it be possible to get a little longer than the rules allow for, your Honour?  I know it is difficult, but it is ‑ ‑ ‑

HER HONOUR:   Ms Nash, it does seem to me there needs to be some finality in this matter.  The matter needs to be listed for the hearing of the application for special leave.  If special leave is granted it would appear that there may be some sense to the matter being married up with the matter of LK in respect of which a grant of leave has been made.  Now, for that to happen, it is necessary for the application books to be on so that the anterior question can be considered.

MS NASH:   Yes.  I had anticipated that the Court may be minded to do that.

HER HONOUR:   Yes.

MR NEIL:   Your Honour, may I just mention one aspect?

HER HONOUR:   Yes.

MR NEIL:   It is the case that the primary submissions on each side are on, but the matter got interrupted before there was any submission in reply on the part of the respondent.  Now, this has not really been considered, but the respondent may wish to file a short reply.  If it did, it would not need long to do it but probably perhaps 14 days, minimum seven.

HER HONOUR:   Yes.

MR NEIL:   I do not know – I cannot say to your Honour that that would be considered necessary, but we would just like to reflect upon it.  Can I say, your Honour, the issues are probably very fully canvassed in the primary submissions.  However, because we anticipated that LK and this matter could get married up there may be a couple of aspects that arise from that matter that we would want to pick up on.

HER HONOUR:   I am sorry, Mr Neil, I understand now.  Yes.  What I have in mind is directions that the applicant for special leave in each of the applications is to file the application books within 21 days of today’s date.  Now, just in terms of – what you have in mind, Mr Neil, is amending the submissions that have been filed by way of the respondent’s summary of argument to take into account matters that arose in the LK matter on the application for special leave.  At this junction?

MR NEIL:   Well, that is what we wish to consider, but if we did that, it could perhaps conveniently be done quickly by a short document which refers to the LK material and just identifies the paragraphs relied upon so that the Court and our colleagues know in what way our case in opposition is sought to be modified.

HER HONOUR:   Yes.  Any difficulty with that, Ms Nash?

MS NASH:   No, your Honour.

HER HONOUR:   How long?

MR NEIL:   Your Honour, if it would not unduly delay the printing of the books we would ask for 14 days.  If it is going to cause a problem, we will constrain ourselves.

HER HONOUR:   Yes.

MR NEIL:   Could I ask for 10 days in the circumstances?

HER HONOUR:   I am just concerned that we get the books on so that we can get the special leave.

MR NEIL:   Your Honour, could I ask for seven days?  We will get it done one way or another.

HER HONOUR:   Yes, seven days, Mr Neil, I think.  Otherwise, Ms Nash, you do not require any further directions.  Your material is in, save for the books.

MS NASH:   Yes, I am just wondering ‑ ‑ ‑

HER HONOUR:   Yes.  Do you see a need to modify the summary of argument in light of considerations analogous to those raised by Mr Neil?

MS NASH:   I was just going to say that may be a situation.  As I said, I am not actually briefed in the matter that is for special leave, but I would imagine that counsel would wish to have a look at that and perhaps there would be a need for some modification.

MR NEIL:   Your Honour, we can probably each do it in seven days.  There is probably only a need to identify the particular parts that we wish to pick up on from LK.

HER HONOUR:   Yes.  It, nonetheless, Mr Neil, leads to the difficulty that you should be responding to submissions put by the applicant, rather than both being given the same deadline.

MR NEIL:   Your Honour, if the applicants perhaps have seven days and we have a further half a week, or perhaps a further three or four working days, we could meet that.

HER HONOUR:   I think, Ms Nash, if you were to file any amended outline of argument within seven days of today’s date, the respondent within three working days thereafter, and the application books to be filed within 21 days of today’s date would address all issues that have been raised.

MS NASH:   Thank you, your Honour.

HER HONOUR:   Formally, the order that I make pursuant to rule 41.13 of the High Court Rules is to reinstate each of the applications and I give directions as stated with respect to the filing of amended outlines of submissions and the application books.

Yes, I will adjourn.

AT 9.43 AM THE MATTER WAS ADJOURNED