Cherry v State of Queensland

[2024] HCATrans 66

[2024] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B11 of 2024

B e t w e e n -

RODNEY MICHAEL CHERRY

Plaintiff

and

STATE OF QUEENSLAND

Defendant

GAGELER CJ

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE BY VIDEO CONNECTION

ON MONDAY, 23 SEPTEMBER 2024, AT 1.58 PM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR A.D. SCOTT, KC appears for the plaintiff.  (instructed by Prisoners’ Legal Service (Qld))

MR G.J.D. DEL VILLAR, KC, Solicitor‑General of the State of Queensland, appears with MR G.F. PERRY for the defendant.  (instructed by Crown Law (Qld))

HIS HONOUR:   Good afternoon, gentlemen.  I have your proposed special case and the proposed consent orders.  I just want to ask you a couple of questions about the special case and I want to discuss one matter of timetabling with you.  Starting with the special case, perhaps if I can direct the questions to you initially, Mr Scott, I am looking at question (a) in paragraph 32.  In presenting your argument on that question, will you be seeking leave to reopen any authority of this Court?

MR SCOTT:   No, your Honour.

HIS HONOUR:   Very well.  Then, question (c) is linked to question (a).  It is a kind of dependent relative revocation argument that you are presenting, I understand that.  But it is implicit in question (c), as I take it, that there is no challenge to section 193A in that earlier form.

MR SCOTT:   That is so, your Honour.

HIS HONOUR:   Then, coming to question (b), it is not apparent on the face of the facts recounted in the special case that question (b) is one that arises.  As you know, we are careful not to go combing through legislation for potential issues.  Is there anything that makes the invocation of that provision more than a remote possibility?

MR SCOTT:   There is, your Honour, and it is for this reason.  In the event that the answer to question (a) is yes, then what would happen is that Mr Cherry would then have re‑enlivened his right to apply for parole.  In the event that he avails himself of that right there would, by operation of the provisions, be a duty on the president of the parole board to consider whether to make a declaration under that section.  There is no discretion on the president of the parole board not to – the provisions automatically require a notice from the chief executive that would then trigger a consideration by the president.  So it is, we would submit, not a hypothetical question.

HIS HONOUR:   I see.  Thank you.  Mr Solicitor, do you agree with those answers?

MR DEL VILLAR:   Yes, your Honour.

HIS HONOUR:   Yes.  Thank you.  All right.  Thank you, I am satisfied that the special case is in an appropriate form and that the questions arise.  The question of timetabling that I wanted to discuss with you concerns the timing that you have in mind for the hearing.  The proposed consent order would have the matter ready for a one‑day hearing in February.  There is a possibility – and at this stage it is only a possibility – of a day being available in the first week of the December sittings of the Court, which are commencing 2 December.  If that does become available, would the parties be able to work towards that hearing date?  Mr Scott.

MR SCOTT:   We could accommodate that, your Honour.  There is one matter, which is presently the special case is due to be filed under the draft orders tomorrow, so there would need to be an amendment to accommodate that, but subject to that, we could work towards the week of 2 December.

HIS HONOUR:   Thank you.  Mr Solicitor.

MR DEL VILLAR:   We could accommodate that as well, your Honour.  There are a number of other matters in the December sittings which would involve Queensland, but I think we could accommodate that.

HIS HONOUR:   I am sure you can do it.  All right.  At this stage, I will not make the orders that are proposed by consent.  I will allow the Registry to be in touch with the parties when the position in relation to the first week of the December sittings becomes clearer.  If we are to accommodate the one‑day hearing of this matter in that week, there will need to be an amendment to the proposed timetable.  I will let the parties formulate that.  In any event, there will need to be an amendment to the consent order, given that we are waiting a couple of days, so one way or another, I will receive from you by the end of the week another piece of paper which I will sign as a consent order.

MR DEL VILLAR:   Your Honour, I just wanted to make one point.  I think the parties are agreed one day should be sufficient, even taking into account the likely intervention of various States and Territories.

HIS HONOUR:   You might tell me about that, Mr Solicitor.  We know about the intervention of one State at this stage.  Is the likelihood that other States will also intervene?

MR DEL VILLAR:   Yes, your Honour, it is likely.

HIS HONOUR:   Yes.  Thank you.  All right, Mr Scott, did you want to add anything to the discussion so far?

MR SCOTT:   No, your Honour, I am in agreement with Mr Del Villar.

HIS HONOUR:   Yes.  Thank you.  Very well, I will do nothing other than adjourn the matter on the understanding that consent orders will be made by the end of the week which will accommodate a hearing either in the first week of December or in February next year.

The Court will now adjourn.

AT 2.05 PM THE MATTER WAS ADJOURNED