Cerullo v The Queen

[2006] HCATrans 51

[2006] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A38 of 2005

B e t w e e n -

PIETROANTONIO CERULLO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 FEBRUARY 2006, AT 11.34 AM

Copyright in the High Court of Australia

MR G.J.S MANCINI:   If the Court pleases, I appear for the applicant.  (instructed by Tully & Co)

MS W.J. ABRAHAM, QC:   If the Court pleases, I appear with my learned friend, MR S.J. SMART, for the respondent.  (instructed by Director of Public Prosecutions (Commonwealth))

GUMMOW J:   Yes, Mr Mancini.  You seek an adjournment?

MR MANCINI:   I do.  We rely on what is set out essentially in my affidavit sworn yesterday.

GUMMOW J:   This is in support of the summons filed on 9 February?

MR MANCINI:    That is right, yes, if the Court pleases.

GUMMOW J:   Very well.  Let us see what the attitude is of the other side.  What do you say, Ms Abraham?

MS ABRAHAM:   Your Honour, the Crown’s position is that we are ready to proceed but we leave the matter in the Court’s hands.  We are concerned about a couple of aspects, one being from the affidavit that has been filed there appears to have been no attempt at all to brief counsel, apart from speaking to Mr Richter, some I think about 10 days ago.  The second concern is that the matter might, in effect, go off into the never‑never if it is adjourned.

GUMMOW J:   Yes.  On both those points, Ms Abraham, if we were going to grant an adjournment it would be on terms that any supplementary or revised submissions in support be filed within a fairly close time and that the matter then be considered not orally the next time we deal with matters from Adelaide, but on the papers by the present panel.

MS ABRAHAM:   Your Honour, in relation to the second aspect, obviously not knowing what future grounds might be added, we obviously have some concern about that aspect, whether there were any further submissions that we would want to put.

GUMMOW J:   Of course, yes, but the matter would be disposed of on the papers.

MS ABRAHAM:   Certainly.

GUMMOW J:   Yes.  Ms Abraham, the proposal at the moment would be 28 days for Mr Mancini’s side and 14 days after that for you.  Would that be suitable?

MS ABRAHAM:   Yes, that would be convenient.

GUMMOW J:   Thank you.  Yes, Mr Mancini, you have heard what has been said.

MR MANCINI:   Yes.  If the Court pleases, that 28 days is appropriate and convenient.  My client is making all endeavours to ensure that counsel they originally sought to be briefed, Mr Richter, will be briefed for the hearing, even if that means the Court convening ‑ ‑ ‑

GUMMOW J:   There will not be a hearing.  That is what I am putting to you.  It will be dealt with on the papers.

MR MANCINI:   Yes.  Would there be any scope for that to be done – therefore, without any oral argument whatsoever?

GUMMOW J:   That is right.  These matters cannot be strung out forever, Mr Mancini.

MR MANCINI:   No. I appreciate that, it is just that I would imagine that ‑ ‑ ‑

HAYNE J:   Slots on oral hearing are limited.

MR MANCINI:   I appreciate all of that, too.

GUMMOW J:   The net result of your client’s conduct is to exclude someone else from today’s list.

MR MANCINI:   I appreciate all of that but he is using his best endeavours to make sure that the matter will be ready and Mr Richter, as originally sought to be briefed is fully briefed with whatever additional grounds may be sought to be agitated.

HAYNE J:   The Court has repeatedly said that the principal means of putting before the Court the submissions that are to be made on special leave are to be found in the written argument.

MR MANCINI:   Yes.  I imagine, though, that my client would like to ensure that the full oral argument can be developed, at least, and for counsel to be able to do that.  That is all I wanted to say about that but obviously it is a matter for your Honours.

GUMMOW J:   Thank you. 

The present application will stand out of the list.  Any further submissions on behalf of the applicant together with any draft amended notice of appeal should be filed within 28 days.  Any supplementary submissions from the respondent should be filed within 14 days thereafter.

AT 11.39 AM THE MATTER WAS ADJOURNED