Commonwealth Director of Public Prosecutions v Poniatowska

[2010] HCATrans 251

[2010] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A20 of 2010

B e t w e e n -

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

MALGORZATA BARBARA PONIATOWSKA

Respondent

Application for expedition

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON MONDAY, 27 SEPTEMBER 2010, AT 10.00 AM

Copyright in the High Court of Australia

MS L.J. CHAPMAN:   May it please the Court, I appear for the applicant for expedition.  (instructed by Director of Public Prosecutions (Cth))

MR M.L. ABBOTT, QC:   If your Honour pleases, I appear with my learned friend, MS M.E. SHAW, QC, for the respondent.  (instructed by Town & Country Lawyers)

HIS HONOUR:   Ms Chapman, it is your application.  I think you move, I assume, on the summons that has been filed and the affidavit that has been filed in support, is that right?

MS CHAPMAN:   Yes, we do, your Honour.

HIS HONOUR:   Yes.  Is there any objection to my receiving the affidavit, Mr Abbott?

MR ABBOTT:   No, your Honour, we also have an affidavit on which we rely.

HIS HONOUR:   Yes.  You have the affidavit of Ms Repasky of 24 September, is that right?

MR ABBOTT:   That is so, your Honour.  We rely on that.

HIS HONOUR:   Yes.  Is there any objection of my receiving that, Ms Chapman?

MS CHAPMAN:   No, your Honour.

HIS HONOUR:   Yes.  Just before you begin, Ms Chapman, can I say this to you, that if there were to be expedition of this matter, the date available would have to be Friday, 12 November in the Sydney list.  That would not deny the possibility, indeed, probability of being able to do it by video link to Adelaide, but the only available time I think that we can be fairly confident of is Friday, 12 November.  The lists in December on Friday, 10 December are looking sufficiently gloomy for me to say that it would be 12 November at the moment or most likely over into next year.  So that is the position as far as we understand it.  What do you say in support of the application?

MS CHAPMAN:   Your Honour, if the Court pleases, we would be ready to argue the matter on 12 November.  Ms Abraham is to be senior counsel and she would be in Sydney to do that on 12 November.

HIS HONOUR:   Yes.

MS CHAPMAN:   In regard to the reasons for expedition, my submission is quite straightforward and is largely set out in the affidavit.  The decision of the majority of the Court of Criminal Appeal affects a large number of cases which are currently before the courts across Australia.  As your Honour would know ‑ ‑ ‑

HIS HONOUR:   It would also affect past cases, would it not?

MS CHAPMAN:   Well, indeed, your Honour.  There is a real risk, if this matter is not expedited, that in the meantime appeals will be lodged against past convictions which of course would be on an ad hoc basis across the country which by its very nature would be undesirable and cause significant concern, uncertainty and delay all around the country.  Really, two aspects are the fact that there are a significant number of cases currently before the courts, matters are being adjourned pending some indication as to when this matter may be heard and also, as your Honour indicated, there is the issue of the likelihood of past convictions being the subject of an appeal.  So the reason for the application for expedition really is quite straightforward as the ramifications of the decision are widespread and certainly the longer the delay in an outcome in this case, the more uncertainty that may arise.  Your Honour, may I briefly respond to the affidavit filed by the respondent?

HIS HONOUR:   It may be, I think, more efficient if I perhaps hear what Mr Abbott has to say and then if there are matters that he has raised whether by reference to the affidavit or otherwise, you deal with those in reply, Ms Chapman, I think.

MS CHAPMAN:   Thank you, your Honour.  Your Honour can see from the applicant’s affidavit that there were a significant number of these offences charged and the subject of the convictions in the 2009‑2010 financial year, over 3,800.  So your Honour can get some idea of the scale that my submissions are directed towards.  Those are my submissions on the application.

HIS HONOUR:   Yes.  Thank you, Ms Chapman.  Yes, Mr Abbot.

MR ABBOTT:   If your Honour pleases, I regret to say that neither I nor Ms Shaw are available in November.  We only got notice that this was a possible date on Friday.  I am overseas at that time and my learned friend, Ms Shaw, is in a case, not that that would necessarily be indeterminate, but we strongly ask that this matter be listed on December 10 if it were possible for the court list to accommodate this special leave application either in Melbourne or Sydney in December.  I heard what your Honour said about the list being gloomy but, if your Honour pleases, we would be able to, in that timeframe, do everything that is necessary to get this special leave application, from the respondent’s point of view, in proper form.

Your Honour, may I just say this. There seems to have been a deliberate policy on the part of the Commonwealth to charge people under section 135.2 of the Criminal Code and what my learned friend has said about the number of cases outstanding appears to be a result of that policy.  There are, of course, many sections under the Social Security (Administration) Act which would respond to the allegations of the sort that were made in this case and, indeed, we apprehend, in many, many of the other cases that my learned friend has referred to.  True it is that we accept that there may be cases which are now going to be waiting but this matter has taken a long time to come on.  It is a matter that is more than a year old.

HIS HONOUR:   Sorry, can you just explain that a bit better, Mr Abbott.  I was not conscious of any great delay.  You say it is more than a year old.  Is that, what, a year from the events which give rise to the charge or what?

MR ABBOTT:   The events relate to 2005.  The complaint was laid in 2009.  So they have hardly be expeditious is prosecuting these matters, albeit under the Criminal Code.  Further issues concerning time are that on 2 August the judgment of the Supreme Court of South Australia was handed down.  We received this application on 16 September.  We have been only briefed in the matter since last Wednesday and we have had very little time, that is Ms Shaw and I, to deal with this matter, but, of course, obviously we will deal with it in whatever time constraints are necessary. 

All I am saying, your Honour, is that we would need until December, in terms of the hearing, to adequately prepare and have this matter in shape for us to properly argue this matter by way of the respondent’s case.  As you can see, your Honour, we have also filed an affidavit containing a notice of contention which I appreciate does not obviously arise until after, if and when special leave were granted, but there are issues in the notice of contention which we would need to take into account in this matter.

HIS HONOUR:   Can I just, Mr Abbott, take up one matter and it may be that it is a matter that either does not permit or should not allow of a positive answer, but both the affidavit and at least part of your submission proceeds on the footing that offences other than the Criminal Code offence could be charged.  Now, at least at first blush that would seem to cut across the very foundation of the Full Court’s judgment that there is no criminal liability because the omission alleged did not constitute a failure to perform a legal obligation.  If conduct of a kind of which your client is accused constitutes a crime under the Social Security Act, it seems to run a little counter to the central proposition of the Full Court that her conduct was not a failure to perform a legal obligation thus, so the Full Court concluded, the relevant provision of the Code was not engaged.

MR ABBOTT:   Your Honour, what the Full Court said, at paragraph [21] of their judgment, was that my learned friend, Ms Chapman:

did not rely on any provision in the Administration Act as establishing a duty of disclosure –

Indeed, my understanding of reading the transcript is that the applicant disavowed any reliance on the Social Security (Administration) Act and, in effect, we are saying, well, regardless of what offences are created and regardless of what duties and obligations and responsibilities arise under the Social Security (Administration) Act, one can find in the Criminal Code the obligation itself and the Criminal Code by containing both a physical element and a fault element is complete and one need have no regard whatsoever to the Social Security (Administration) Act.  Now, I may be doing my learned friend a disservice in her argument, but that is at least as I understood it from the little time I have had to read the judgment and the transcript.  I understand, moreover, that my learned friend, Ms Chapman, takes issue with one of the conclusions of the Full Court at paragraph [21] where the Full Court says that the submission was:

that the Code provides that the offence can be committed by way of an omission and s 135.2 is directed at conduct, including omissions, which result in a person obtaining a benefit to which there is no entitlement.  It was argued that a duty is thereby created not to obtain a benefit by means of an omission. 

So I cite that to pray in aid my submission that this case, at least on my reading of it, coming fresh to it, appeared to be run on the basis that section 135.2 of the Code was complete and one need have no regard whatsoever to whether or not the conduct complained of would be caught and constitute a criminal offence under the Social Security (Administration) Act or, indeed, the Social Security Act.  I hope that goes some way to advancing your Honour’s ‑ ‑ ‑

HIS HONOUR:   I understand, yes. 

MR ABBOTT:   So there are obviously serious matters involved in this special leave application.  It is not something that, in terms of the respondent, we can deal with within the timeframe that my learned friend suggests.  As I said, I renew my application that if your Honour is to list it that it be listed in December if at all possible either in Melbourne or Sydney.  We will attend in that time.

HIS HONOUR:   Could I just understand a little better than I presently do the timetable that would ordinarily be engaged.  The applicant Director filed the application for leave on 16 August and the draft notice of appeal and summary of argument was filed on 7 September.  Assuming service to have occurred – service that is of draft notice and applicant’s summary – at or about that time, that would ordinarily, I think, make your summary due on 28 September, 21 after the ‑ ‑ ‑

MR ABBOTT:   Due tomorrow.

HIS HONOUR:   Due tomorrow?

MR ABBOTT:   Yes.

HIS HONOUR:   The reply would ordinarily be due 5 October, which would ordinarily mean that the application should be in good order without any extraordinary directions for hearing on 12 November, but do I misunderstand the sequence of events that would ordinarily be engaged, Mr Abbott?

MR ABBOTT:   No, your Honour does not misunderstand the sequence of events, but in this case there will be, we apprehend, a necessity for some other orders.  Firstly, for the transcript of hearing of argument before the Full Court on 16 June – because the applicant joins issue with a finding of the Full Court as to what was or what was not conceded by the applicant before the Full Court, we would say that there will be necessity for an order for the transcript to be included and also, were special leave to be granted, obviously we would need further documents to be included, or seek to have further documents included in support of our notice of contention.  Let me be perfectly frank about it, your Honour, it was my intention, and still is my intention, to ask your Honour to indulge us a further week and therefore to extend the time under rule 4.02 to allow to file the respondent’s outline of argument by next Monday.

HIS HONOUR:   So that would take us to Monday, 4 October.  Do I have the date correct?

MR ABBOTT:   Yes, your Honour.

HIS HONOUR:   That would make the reply due Monday, 11 October.

MR ABBOTT:   I am sorry, your Honour, Monday is a holiday apparently, I have just been informed, at least in some States.

HIS HONOUR:   Yes, but is it in Adelaide, that is all that presently, I think, matters?

MR ABBOTT:   Yes, it is.  I am just told it is.  It is not a holiday that I observe, but it is a holiday apparently in terms of the Registry, your Honour.

HIS HONOUR:   Well, it would have to be Tuesday, 5 October and Monday, 12 October.  If we were to adopt that timetable, 5 October and 12 October, then depending on what I conclude about when to fix it, there would need to be an adjustment to the due date for application books.  As I say, that turns on whether or not I fix it for Friday, 12 November.  There is this further consideration which troubles me more than a little, Mr Abbott.  If we were to put it over to December, it would mean that, I think, the first available fixing date would most likely go over into March rather than into the February sittings of the year 2011. 

I am presently struck by the submissions on the part of the Director that this is a matter which, if we are to consider granting leave, we should consider doing so promptly because were we to grant leave, then it is something that would need to be sorted out sooner rather than later and if leave were to be granted, and this is about three hurdles down the track I well understand, but if leave were to be granted, we would, I suspect, be looking towards a fixture sometime in February sittings rather than in the March settings.  Those are matters that are concerning me.  I raise them with you so that you can – how can I put this – set me straight.

MR ABBOTT:   Your Honour, of course I cannot say anything against your Honour’s timeframe.  All I can say, your Honour, is that I could perhaps tell your Honour this, that the Director has arranged to pay for the costs of the respondent in this matter.  That took from the time when the request was first made by letter dated 8 September to last Tuesday, and we were instructed on Wednesday.  If your Honour is to fix the matter for hearing in November and not December, then new counsel will need to be instructed and neither I nor Ms Shaw will be able to be counsel in this matter in November.  I say that not in any way in terrorem but just as one of the facts that is going to happen, your Honour.

HIS HONOUR:   I understand that.  I understand it perfectly, Mr Abbott, yes.

MR ABBOTT:   I apprehend that some further time would be needed to instruct new counsel.  As I said, I have been working on this since Friday and I had hoped – we could, I think, file our submission in reply by this Friday, that would be tight, but that is why I was asking for next Monday.

HIS HONOUR:   It would be preferable, I think, Mr Abbot, whatever happens, to adjust the timetable to 5 October for your submission in answer,

11 October rather than 12 October for submission in reply.  Then much turns on what date I fix to determine application book.  Application book would include, by the sound of it, some extracts of transcript if there is to be this fight about what was or was not conceded.

MR ABBOTT:   Could I take your Honour to my learned friend’s outline?

HIS HONOUR:   I do not need to trouble about whether that should or should not be included at the moment, Mr Abbott.  If the parties say it should, then they will follow that course.  If they have a fight about it, then that can be resolved otherwise, but I think it comes down to this; whether I should fix 12 November or not.  Is there anything else that you would want to say, Mr Abbott?

MR ABBOTT:   No, your Honour, only to repeat that we would seek 10 December.  Thank you, your Honour.

HIS HONOUR:   Yes, thank you.  Ms Chapman, I do not think I need hear you in response at the moment.

The applicant, Commonwealth Director of Public Prosecutions, applies for expedition of an application for special leave to appeal against orders made by the Full Court of the Supreme Court of the State of South Australia disposing of an appeal against conviction by the present respondent. 

The respondent was convicted of charges laid under section 135.2 of the Criminal Code (Cth). An issue determined by the Full Court concerned whether failure to notify Centrelink of certain changes in her financial circumstances was an omission of a kind that fell within the terms of section 135.2 of the Criminal Code (Cth) as understood in the light of the statutory definition of “act” contained within the Code.

The Director seeks expedition of the application for special leave to appeal on the footing that the decision of the Full Court that the alleged omission in this case did not bring the conduct within the relevant provisions of the Criminal Code (Cth) has a significant effect on both past, pending and future charges concerning receipt of social security benefits in circumstances where the Director would say the receipt was unauthorised.

The respondent submits that though there may or may not be some point of urgency about the resolution of the proper construction of the applicable provisions of the Code, the immediate issue confronting prosecutors could be dealt with by resorting to provisions of the Social Security Act which it is said could found prosecutions for conduct of a generally similar kind to that alleged against the respondent. 

Be that as it may, and I express no opinion on whether that course would be open to the Director, the decision of the Full Court is one which, at least arguably, may have a considerable effect on both pending and perhaps even past prosecutions of a kind similar to that instituted against the respondent.  In my opinion, the application for special leave to appeal brought by the Director should therefore be expedited. 

The question then becomes, expedited to when?  The Court would be able to accommodate this application in the list of cases to be heard in Sydney on Friday, 12 November.  The lists of cases to be heard in December of this year on motions day on 10 December are much more crowded.  Counsel for the respondent informs me that neither he nor Mrs Shaw, who also appears on behalf of the respondent and who appeared in the Full Court of the Supreme Court of South Australia on her behalf, is available to appear in a list of cases from Sydney on Friday, 12 November.  He urges that the matter should be expedited but expedited to a list to be heard in December.

Having regard to the other press of business presently listed for hearing on Friday, 10 December, I am of opinion that if this case is to be expedited it must be expedited to Friday, 12 November.  I recognise that doing that will deprive the respondent of counsel of her first choice and that is a step not lightly to be undertaken.  Nevertheless, having regard to the circumstances which require expedition of this application, the nature of the issues which are involved and the way in which the Court’s business appears presently to be falling out, I think there is no substantial choice except to expedite it to Friday, 12 November.  That being so, it will be necessary to give directions about the further conduct of the  matter. 

The respondent’s written submissions in answer to the application for special leave would ordinarily be due for filing and service on 28 September.  Counsel for the respondent asks that there be an extension of time and in my opinion that extension should be granted.  I would fix Tuesday, 5 October 2010 as the day by which the respondent should file and serve her written submissions in answer to the application for special leave to appeal. 

The time for reply by the Director would ordinarily expire on 12 October, but having regard to the timetable that will need to be followed, I would shorten that time and direct that the reply be filed on or before Monday, 11 October.  The application book would then be due for filing within 21 days after reply.  See rule 41.09.08.  That time will need to be abbreviated.  If the matter is to be ready for hearing on Friday, 12 November, the application books should be filed and served no later than 4.00 pm on Monday, 25 October 2010.

Do counsel wish to be heard about the form of those directions?

MS CHAPMAN:   No, thank you, your Honour.

MR ABBOTT:   No, your Honour.

HIS HONOUR:   There is no occasion I think, is there, counsel, for me to make any order concerning the costs of today?

MS CHAPMAN:   No, your Honour.

MR ABBOTT:   No, your Honour.

HIS HONOUR:   Yes.  There will be directions in the terms I have indicated. 

The Court will adjourn.

AT 10.30 AM THE MATTER WAS ADJOURNED