Crump v State of New South Wales & Anor

[2011] HCATrans 225

[2011] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S165 of 2011

B e t w e e n -

KEVIN GARRY CRUMP

Plaintiff

and

STATE OF NEW SOUTH WALES

First Defendant

NEW SOUTH WALES STATE PAROLE AUTHORITY

Second Defendant

Summons

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 25 AUGUST 2011, AT 9.30 AM

Copyright in the High Court of Australia

MR D.P. BARROW:   May it please the Court, I appear for the plaintiff.  (instructed by Legal Aid (NSW))

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the first defendant.  (instructed by Crown Solicitor (NSW))

HER HONOUR:   I think a submitting appearance has been filed for the second respondent?

MR SEXTON:   I believe so, your Honour.

HER HONOUR:   Yes, Mr Barrow.

MR BARROW:   Your Honour, what is proposed is, I think, the orders that are set out in the summons that has been filed essentially that the matter go over for a further directions hearing and in the interim a timetable be set for the defendant to file a defence or to demur in the case.

HER HONOUR:   Yes.  May I inquire, Mr Barrow, the suggestion is, as I understand it, that the legislation – and I will not trace the history, but culminating in section 154A of the Sentencing Administration Act – is invalid because it infringes the Kable principle?

MR BARROW:   Yes.

HER HONOUR:   Can you flesh out a little for me how that is said to arise in the circumstances of this case?

MR BARROW:   As I understand the argument, Mr Crump, the plaintiff in this matter, is the only person who is the subject of this piece of legislation at the moment and, as I anticipate the argument, the plaintiff will contend that the legislation that has been passed that precludes the Parole Board from even considering his suitability for parole is invalid because of the impact that it has on the independence of the court.  That, as I understand it, is going to be contended.  Mr Crump has been given a non‑parole period that expired I think in 2003.  He sought to be considered for parole then and was told that this legislation precluded him being considered for parole.  As I say, at the moment he is the only person that the legislation applies to.

HER HONOUR:   Ordinarily the Kable principle is seen as precluding the conferral of power on a State court that is inconsistent with the integrity of the State court as a repository of federal jurisdiction.  How, in the scheme of things, does the passing of legislation affecting the circumstances in which the Parole Authority of New South Wales may consider an application for parole said to trench on the institutional authority of the Supreme Court of New South Wales?

MR BARROW:   As I understand, the plaintiff will contend that he sought to have his life sentence determined, and in fact was successful in doing so, in 1997.  He received a determined sentence from Justice McInerney.  This legislation was, it is contended, enacted to, in effect, thwart the determination of Justice McInerney by effectively making it impossible for him to be considered for parole because the legislation that has been enacted requires him to be, I think, either dying and, also, no threat to the community, effectively.  The contention will be that that makes the work of the court to have been a charade, that it is ‑ ‑ ‑

HER HONOUR:   The work of what court?  What work is there for a court to do?

MR BARROW:   Well, the determination of Justice McInerney, as I understand it.

HER HONOUR:   Does this proposed challenge necessitate challenging the decision of this Court in Baker v The Queen?

MR BARROW:   No, I do not believe it does.  I must say – if I could just make this comment, your Honour – this is not a matter that I have got the character of.

HER HONOUR:   I see.

MR BARROW:   Ms Burgess is junior counsel, and she on long service leave.  I understand that Baker v The Queen considered different legislation.  It is relevant in a way.  In Baker v The Queen the challenge to the legislation related to a requirement that a person who was the subject of a never to be released recommendation established that there were special reasons before they could have their application considered.  So this is a step beyond that and so it has a relationship with Baker but it is quite a different case.

HER HONOUR:   I had in mind that I think in the plurality reasons in Baker, amongst other things, was reference to the circumstance that if a person is the subject of a sentence of life imprisonment imposed under the regime existing in 1974 when your client was sentenced, the circumstance that subsequent changes effected by legislation to the circumstances in which some less burdensome or merciful exercise of executive power may result in release, does not involve characterising the exercise of that legislative power as in any sense imposing a burden, taking into account

that the person was subject to a sentence of life imprisonment.  I do not purport to be quoting it exactly, Mr Barrow, but it seemed to me there may be some questions arising out of observations of that character, but, as I understand, your challenge is bound up with the notion that the legislation is ad hominem, directed specifically to the circumstances of your client.

MR BARROW:   Yes, I think that is a significant part of the argument.

HER HONOUR:   Perhaps I might just hear from the Solicitor‑General.  Mr Solicitor, what is the first defendant’s attitude?  Is the first defendant content ‑ ‑ ‑

MR SEXTON:   It is the State of New South Wales, your Honour.

HER HONOUR:   Yes.  What is your attitude to the orders that are sought?

MR SEXTON:   Well, assuming that the matter is going to proceed in this Court, we are happy with the orders that have been proposed this morning.  Your Honour has raised the question of the decisions in Baker and the subsequent decision in Blessington, which arises from the same legislation.  We are assuming that there is an argument to be made here that is different, at least in some respect, from what came out of those two decisions.

HER HONOUR:   Yes.  The fourth order proposed in the summons for direction contemplates the referral of a special case into the Full Court.  At this stage I am not persuaded that is necessarily a course to be followed.  It seems to me perhaps the issues need to be refined a little more than appears in the material before me today.  Do I take it it is right, Mr Solicitor, that to the extent that the challenge is refined, it is one that would be suitable for a special case in that there is no factual issues or anything of that character?

MR SEXTON:   I think that is right, your Honour.  There is only the legislation and there is, for example, the judgment of Justice McInerney and I do not think there is any dispute as to any factual matters between the parties.

HER HONOUR:   Yes.  Thank you, Mr Solicitor.  I think the first thing that is required, Mr Barrow, is you require an extension of time for filing the summons for directions.  Any opposition to that, Mr Solicitor?

MR SEXTON:   No, your Honour.

HER HONOUR:   Yes, very well.  I will extend time in that respect.  What I have in mind is that I will make the order in paragraph 2 requiring the defendants to file and serve their defence within 21 days.  Has there been any discussion between the parties?  The orders that you seek seem to slide between the concept that perhaps the matter might be dealt with by demurrer and the suggestion that the parties are to consult with a view to a special case.  Has there been any discussion between the two of you?

MR BARROW:   I am happy to be corrected.  I understand there has been some discussion, but I have not really been involved in it.  It may be something for the next occasion, I suspect.

MR SEXTON:   Your Honour, there has been some discussions, but not, I think, about the question of a special case.  As to whether it is a defence or a demurrer or both, that is something that we will just look at in the next week or so.

HER HONOUR:   All right.  If you have 21 days in which to file and serve a defence or a demurrer, that would take us, I think, to 15 September.  A fortnight from then brings us into the next sittings of the Court.  What about if I were to bring the matter back for further directions on Thursday, 22 September, in the circumstances in which I would expect perhaps the parties would have had an opportunity to consult and consider the question of a special case, in circumstances in which, Mr Barrow, perhaps some further consideration might be given to refining the basis upon which the challenge is put?  Now, does that date suit and that time?

MR SEXTON:   Well, that is the problem, your Honour.  I am just concerned, we are trying to look at Ms Mitchelmore’s dates here because she may have to do that, and I think that ‑ ‑ ‑

HER HONOUR:   Does that cause problems?

MR SEXTON:   Well, she cannot be sure at the moment about that date, your Honour.

HER HONOUR:   I see.  Is it just that date in that week?  What I am trying to do, Mr Solicitor, is avoid putting the matter off for another fortnight because there are sittings of the Court commencing on 27 September.  So it is really the week beginning 19 September that would seem to be ‑ ‑ ‑

MR SEXTON:   I think 19 and 20 September are ‑ ‑ ‑

HER HONOUR:   What about Tuesday, 20 September?  How does that suit you, Mr Barrow?

MR BARROW:   That is fine, your Honour, thank you.

HER HONOUR:   If we were to fix on Tuesday, 20 September then, that would still give the parties an opportunity to discuss the matter.  I am just

wondering if there is to be any change to the way the matter is framed, Mr Barrow, is that going to give sufficient time to you, Mr Solicitor, in terms of the filing of the defence?  Yes, it is hard to say, is it not?

MR SEXTON:   It depends what we find out.

HER HONOUR:   It is hard to say.  Let us proceed for present purposes on the basis that the defence will be filed within 21 days and the matter come back before me for further directions on Tuesday, 20 September.  Is there anything further that either of you wish to put?

MR BARROW:   Nothing, your Honour.

MR SEXTON:   No, your Honour.

HER HONOUR:   Yes.  In this matter I extend the time under the rules for the filing of the summons for directions to 9 June 2011.  I direct the first defendant to file and serve its defence or a demurrer or a combination, as it sees fit, within 21 days of today’s date.  I stand the proceedings over for further directions to 9.30 am on Tuesday, 20 September 2011.  I note that the parties will in the interim consult with one another concerning whether a special case should be stated for the opinion of the Full Court.  I order that the costs of the summons be costs in the proceedings.

AT 9.48 AM THE MATTER WAS ADJOURNED