Bell v The Queen

[2021] HCATrans 132

[2021] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A2 of 2021

No A3 of 2021

B e t w e e n -

TROY STEPHEN BELL

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GAGELER J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY AND MELBOURNE BY VIDEO CONNECTION

ON FRIDAY, 13 AUGUST 2021, AT 3.28 PM

Copyright in the High Court of Australia

MS M.E. SHAW, QC appears with MR B.J. DOYLE, QC and MR S. JOYCE for the applicant in each application.  (instructed by Shaw & Henderson)

MR M.G. HINTON, QC appears with MS K.J. PARK for the respondent in each application.  (instructed by Office of the Director of Public Prosecutions (SA))

GAGELER J:   Mr Doyle, could you stay on mute for a moment, please?  I have a couple of questions to ask Mr Hinton.

MR DOYLE:   If your Honour pleases.

GAGELER J:   Mr Hinton, there were three proceedings before the Full Court.  There was the appeal proceeding and the order in that is the subject of the first of the applications before us.  There was what was described as the reservation proceeding and the answers to the questions reserved in that proceeding are the subject matter of – I am sorry, that is the subject matter of the first proceeding before us.  The orders in the appeal proceeding are the subject matter of the second application before us.  Then there was also a third proceeding, a declaration proceeding, to which I think you were not a party.  The Commissioner was the moving party there.  Was the Commissioner separately represented?

MR HINTON:   She was.

GAGELER J:   What has happened to that declaration proceeding?

MR HINTON:   My understanding is it remains in abeyance.  The orders ‑ ‑ ‑

GAGELER J:   So, no orders have been made or no ‑ ‑ ‑

MR HINTON:   That is my understanding.

GAGELER J:   Okay.

GORDON J:   Can we ask why it was in abeyance?

MR HINTON:   I think the answer to that question can be found at 203 of the application book.

GAGELER J:   What numbers are you using, Mr Hinton?

MR HINTON:   The bold numbers, top right‑hand corner.

GAGELER J:   Excellent, thank you.  Whereabouts?

MR HINTON:   At paragraphs 417 through to 419.

GAGELER J:   All right.  Has it just proved too hard, or what is happening?

MR HINTON:   I cannot really answer your Honour’s question other than to say that the Commissioner has not seen fit to go back before the Full Court at this point in time.

GAGELER J:   All right.  Was the Commissioner an active participant in the argument before the Full Court?

MR HINTON:   On her application, yes.

GAGELER J:   So, going to the proceeding where you were the moving party, the questions reserved, no doubt you accept them to be important questions?

MR HINTON:   Yes.  We would not have made the application if they were not.  I have to concede that.

GAGELER J:   Of course.  I think we regard them as important questions as well, Mr Hinton.  We understand your argument to be that those questions were correctly answered by the Full Court, but beyond that, is there any reason why us regarding them as important questions we should not grant special leave to appeal in the first of the two matters before us, that is A2/2021?

MR HINTON:   Concentrating simply on the questions, the primary reason why the Court would not grant special leave would be because simply answering the questions will not resolve this matter, nor, I think it is eight other matters we have before the courts in this State where there has been a direct referral.  If your Honours were to decide the questions against the respondent and find the Full Court erred, there remains a raft of litigation yet to be had in this trial and others as we go through the process of working out the ramifications.

GORDON J:   But those applications would then proceed on a certain footing, would they not?

MR HINTON:   To the extent that there is the foundation of unlawfulness, yes.  But what we would really have is differences in each case as to the consequences for the admissibility of evidence.  In my submission, whatever the Court in this application were to conclude, in the related application it is not reasonably arguable that there was a forensic advantage that the prosecution was able to obtain, nor has there been an error of the kind that goes to the fundamental root of the trial.

What I am saying there is that the option of a stay is not reasonably arguable.  So we are in the realms of well, if the High Court decides the Full Court was wrong, in part or in whole, we have a foundation, yes, if your Honour Justice Gordon pleases, upon which the public policy discretion would be enlivened and we would have to go through, as referred to in Bunning v Cross with which the Court are all familiar, and in addition, we would have to take into account section 56A(1)(a) and whatever it means as to the savings of a jurisdictional error. 

So, with respect to your Honour Justice Gageler’s question, yes, the questions are important.  Will they decide matters quickly and speedily for us?  No.  In answer to your Honour Justice Gordon, yes, there is a sounder footing, but, nonetheless, we would go on in all eight matters to determine the ramifications.

GAGELER J:   What we are exploring, Mr Hinton, is whether there would be utility in granting special leave to appeal in A2 dealing with these foundational questions of law, and perhaps we have to hear Mr Doyle, refusing special leave in A3 upon the understanding that a fresh application for a stay could always be made on the basis of the current circumstances and in light of whatever result emerges from the appeal in A2.  Is that a sensible way to proceed, or is there a problem with it?

MR HINTON:   There is no problem in proceeding that way.  If the Court were to grant special leave to appeal in A2, and the answers were adverse to the respondent, then, as Justice Gordon has indicated, we would know where we are with respect to any discretionary exclusion of evidence and, possibly, it would remain open to the applicant to reagitate a stay because there has been a change in circumstances.

GAGELER J:   Very good.  You would not raise any procedural objection to a renewed application for a stay if there has not been a change in factual circumstances?

MR HINTON:   I would raise no objection if there is a change in the circumstances, that change being your Honour’s judgment which is adverse ‑ ‑ ‑

GAGELER J:   Okay, we understand that.  Thank you, that is very helpful, Mr Hinton.

MR HINTON:   If the Court pleases.

GAGELER J:   Mr Doyle, you will have picked up that we have an inclination to grant special leave in A2.  You need to persuade us if you wish to obtain a grant of special leave in A3.

MR DOYLE:   Your Honours, in our respectful submission, the Court will be seized of a full appreciation of the legislative scheme which would bear critically upon an assessment of our contention that in all the circumstances the combination of the degree of indeterminate prejudice, having regard to the primary judge’s findings, and the seriousness of the departure from the legislative scheme necessitate the grant of a stay and it would not add substantially to the argument before the High Court were we to be given permission to advance that argument if it were to emerge in the course of argument that the Court thought it more appropriate that matters be remitted if it should emerge, for example, that some sort of mixed result has not been considered by the courts below.  It might emerge that this Court would regard it appropriate to remit that question but, in our respectful submission, in all the circumstances we should have permission to agitate it before the Court.

We do say that the approach to the question of the granting of a stay by the primary judge and, in effect, continued by the Full Court did involve errors of principle inasmuch as it regarded as a panacea to the extent of the forensic disadvantage that was accepted to have been caused that the trial would be adjourned for a period of time enabling the applicant and his advisers to make further enquiries of witnesses and so forth.

In our respectful submission, it is an important matter of principle that was overlooked below that the fact of delay is itself a matter that ought to count against the suitability – pardon me, ought to count in favour of the grant of a stay.  So, your Honours, for those reasons we would submit that both matters could go up to this Court, bearing in mind that as I say, it will not involve extensive additional argument and the matters do involve, for the reasons we have set out in the application relating to matter A3/2021, various matters of principle.

If the Court pleases, those are my submissions.

GAGELER J:   Thank you, Mr Doyle.  …..  We do not need to hear you on A3.

MR HINTON:   I have pretty much made all my submissions in relation to A2 in answer to the Court’s questions.

GAGELER J:   Thank you.

MR HINTON:   If you do not need to hear me on A3 then I am content to sit.

GAGELER J:   Thank you, Mr Hinton.

MR HINTON:   If the Court please.

GAGELER J:   In matter A2/2021 there will be a grant of special leave to appeal.

In matter A3/2021 special leave will be refused.

How long is this going to take – Mr Hinton?

MR HINTON:   I do not see us going past half a day, your Honour.

GAGELER J:   What about this odd position of the Commissioner?  I would expect you as the party appearing for the Crown to make all submissions that could be expected to be made in support of the position that the Commissioner would agitate if the Commissioner was a party.

MR HINTON:   At no time did the Commissioner attempt to be made a party to the appeal or the questions reserved.  They were only heard on the Commissioner’s own application.  I envisage there will be only two speakers – the applicant and the respondent.

GAGELER J:   Very well.  If the Commissioner wants to be here the Commissioner will need to make an application.

MR HINTON:   If the Court pleases.

GAGELER J:   Do you agree, Mr Doyle, half a day?

MR DOYLE:   Your Honour, we have some reservation about that.  We thought it might be appropriate and prudent to allow a day.  There are some intricate aspects of this legislative scheme which the Court might benefit from hearing oral submissions about, albeit that of course they will be covered in the written material.

GAGELER J:   All right, I will note that, but I must say I am inclined to think Mr Hinton’s estimate is something to be aimed for.  Thank you very much. 

The Full Court will now adjourn.

AT 3.43 PM THE MATTER WAS CONCLUDED