Director of Public Prosecutions (NSW) v Hardman

[2004] HCATrans 95

[2004] HCATrans 095

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S473 of 2003

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS (NEW SOUTH WALES)

Applicant

and

JAMIE RONALD HARDMAN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 APRIL 2004, AT 11.58 AM

Copyright in the High Court of Australia

MR R.D. COGSWELL, SC:   May it please your Honours, I appear for the applicant with my learned friend, MS J.A. QUILTER.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Officer, would you call Jamie Ronald Hardman, please?

COURT OFFICER:   No response, your Honour.

GLEESON CJ:   There is a certificate from the Deputy Registrar that she has been informed by the solicitor for the respondent that the respondent will submit to any order save as to costs.

Mr Cogswell, we have read the papers and we understand the point at issue.  The only thing that I think we need your assistance on is this.  There is a suggestion that the legislation has been amended, in effect, to uphold the view of the dissenting judge in the Court of Criminal Appeal, in this case ‑ ‑ ‑

MR COGSWELL:   It is more than a suggestion; it is the fact, your Honour.

GLEESON CJ:   Then what is the point of this other than to bring Mr Hardman to what is regarded as justice?

MR COGSWELL:   The special leave point is now refined to this, your Honours.  For 30 years there has been a line of authorities which has stood for the proposition that what occurs in a car which is in itself in a public place occurs in a public place.  An important component in the reasoning of those cases has been what might be regarded as a common sense proposition, and it was stated in these terms in one of the cases from Victoria, where the car was, there the defendant was, and the judgment of the court in this case runs contrary to those propositions albeit ‑ ‑ ‑

GLEESON CJ:   Does the legislation that reverses the judgment in this Court only deal with firearms or does it cover the wider proposition you just mentioned?

MR COGSWELL:   No, it only deals with firearms, your Honour, or at least it – I will hand up copies of the legislation.

GLEESON CJ:   Thank you.

MR COGSWELL:   There are three documents.  The top document is the legislation which effected the amendment.  Section 3 effected the amendment, and it refers to schedule 1, and:

For the purposes of this Part, a person who is in a vehicle or a vessel in a public place is taken to be in that place.

GLEESON CJ:   Say that again, please?

MR COGSWELL:   Yes:

For the purposes of this Part, a person who is in a vehicle or a vessel in a public place is taken to be in that place.

GLEESON CJ:   That is for the purposes of the Part of the Crimes Act that deals with firearms?

MR COGSWELL:   Yes.  So if your Honour goes to the second blue tag, I have extracted the legislation as consolidated, so that your Honour can see that the effect of the amendment, which took effect, by the way, on 15 December 2003, is to insert subsection (2) in the interpretation section ‑ ‑ ‑

GLEESON CJ:   Why do they limit it to the purposes of the Part?

MR COGSWELL:   Because they were concerned about this particular decision, this particular judgment.

GLEESON CJ:   No.  That is their motive in making the amendment, but if the issue has the wider significance that you mention, why did the legislation not deal with that point?

MR COGSWELL:   In fact, the issue that I say is why there is that there are pieces of legislation interstate in the – and it boils down to this.  In other States there are offences which are created in various Summary Offences Acts which turn upon the proposition that a person can commit an offence in a public place and we ‑ ‑ ‑

GLEESON CJ:   I would have thought, without having looked at the matter in great detail, Mr Cogswell, that whether or not something that is done in a car, when the car is in a public place, is itself done in a public place, might depend upon what exactly it is that you are talking about.  I understand fully the strength of your argument in relation to carrying a firearm in a car in a public place.  I suppose you might have been wanting to argue that if the majority decision in the Court of Criminal Appeal was right in this case, carrying a firearm in your pocket might be carrying a firearm in a public place.

MR COGSWELL:    Right, or on a bicycle.

GLEESON CJ:   But would not whether or not conduct that occurs in a car which is in a public place amount to conduct in a public place depend on the nature of the conduct and what is in question?

MR COGSWELL:   Yes.  If your Honours take that view, then that does away with the special leave point.  The special leave point really now that the legislature has intervened boils down to the proposition that if your Honours are not satisfied that this judgment should stand as indicating as a general broad proposition that an offence committed in a car which is in itself in a public place ought to be regarded as being committed in a public place, if your Honours do not accept that proposition, then that is the point.

GLEESON CJ:   It might depend on the offence, might it not?

MR COGSWELL:   That is certainly arguable.  That is the view which her Honour took in a very, with respect, closely reasoned judgment, and the special leave point now boils down to the broad proposition that if the Court does not accept the general proposition that it turns upon a particular interpretation of the statute but, in fact, the fact that an offence committed in a car in a public place ought always to be regarded as having been committed in a public place, then we would seek leave.  Otherwise, your Honour, that is what remains ‑ ‑ ‑

GLEESON CJ:   Just give me a moment, please.  I want to look at what Mr Justice Meagher said.

MR COGSWELL:    Paragraph 8 at application book 32, at the bottom of the page, is the proposition that we are advancing:

where the car was there also was the appellant.

GLEESON CJ:   But he goes on to relate it to the particular problem of firearms, does he not?

MR COGSWELL:   At paragraph 11, at the foot of 33, yes, your Honour, and, indeed, at paragraph 7 on page 32, his Honour indicates it is not all cases.  They are our submissions, if it please the Court.

GLEESON CJ:   Since the decision of the Court of Appeal in this case, legislation has been enacted which effectively reverses the position found by the Court of Appeal to apply in relation to firearms.  Because of the enactment of that legislation, the particular point decided by the Court of Appeal in this case is no longer of general importance.  For that reason, we would dismiss the application for special leave to appeal, without thereby indicating any preference for the view of the majority in the Court of Appeal.  The application is refused. 

AT 12.09 PM THE MATTER WAS CONCLUDED