Giovannone v The Queen

[2002] HCATrans 402

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S315 of 2002

B e t w e e n -

PHILIP GIOVANNONE

Applicant

and

THE QUEEN

Respondent

Summons for expedition

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 OCTOBER 2002, AT 10.25 AM

Copyright in the High Court of Australia

MR R.A. BONNICI:   May it please your Honour, I appear for the applicant.  (instructed by S. Moran & Co)

MR R.D. COGSWELL, SC:   I appear for the respondent with my learned friend, MS J.A. QUILTER.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

HER HONOUR:   This is neither consented to, nor opposed?

MR COGSWELL:   That is right, your Honour.

HER HONOUR:   When does this sentence expire?

MR BONNICI:   On 12 September the full sentence expires.  He is due for release ‑ ‑ ‑

HER HONOUR:   That is 2003?

MR BONNICI:   Yes, 2003.  He is due for release on 12 December this year on parole, provided - so that is one of the problems.  This matter has had that chequered history that in between appeals he served two months, got Supreme Court bail, came back out, waited four months for a probation….. had judgment reserved for about 12 weeks, I think.

HER HONOUR:   Mr Bonnici, I can give you February.  Is that any use?

MR BONNICI:   Well, yes, it certainly assists before May.  It only assists for the parole period, of course.  The only other use may be that, subject to instructions - and we are going to see him on Thursday - depending on what your Honour does and says, we could put on a possible stay of the rest of the period, but that would mean the third time that the man has gone in and out on a short sentence and I do not know what effect that would have.  It is one of those fortunate cases, as the history of it has shown.  But February would assist.  Certainly an earlier date before his release would have been more effective, but it seems that the court ‑ ‑ ‑

HER HONOUR:   Yes, I would be minded to expedite it until February but I do not know whether ‑ ‑ ‑

MR BONNICI:   February is the earliest ‑ ‑ ‑

HER HONOUR:   It is unfortunately.  The November and December lists are full.  I have just filled Melbourne.  No, I am sorry.  Even to have it in February you will have to take some steps, will you not?  Have you filed ‑ ‑ ‑

MR COGSWELL:   Not yet, your Honour.

HER HONOUR:   Do I need to give directions or can I take it you will file the respondent’s summary of argument?

MR COGSWELL:   No, your Honour.  The time has not arrived yet for them to be filed.

HER HONOUR:   No, I know the time has not arrived yet, but if I am to expedite this one, I may need to give further directions unless you give me an undertaking that you will do everything on your part to have the matter ready for hearing in February.

MR COGSWELL:   I will get some instructions.

HER HONOUR:   You see in the other matters all their outlines were in and so forth and so on and the Registry is closed.  We would need the books by December, would we not?

THE DEPUTY REGISTRAR:   By 12 January at the latest.

HER HONOUR:   12 January.  You see nearly everybody is missing at that time.  Did you want to get some instructions?

MR COGSWELL:   Yes.  We can do all we need to do within the time, your Honour, including getting in the written submissions, and we will assist in any way that we can so far as the applicant is concerned.

HER HONOUR:   Now, Mr Bonnici, are you familiar with what you will have to do to get this matter ready for the February list?

MR BONNICI:   Apart from our final written submissions ‑ ‑ ‑

HER HONOUR:   You are waiting on their ‑ ‑ ‑

MR BONNICI:   Certainly the outline of arguments, the draft grounds of appeal, the special leave, all our materials have been filed there, your Honour.  Apart from that, I am not sure what else is needed.

HER HONOUR:   Well, there will have to be application books ‑ ‑ ‑

MR BONNICI:   Yes.

HER HONOUR:   ‑ ‑ ‑ the Deputy Registrar has said they will have to be filed by 12 January at the latest, but I can tell you from my experience of old that your chances of getting your appeal books done over the Christmas/early January period are not good.

MR BONNICI:   I would probably agree with your Honour on that, yes.

HER HONOUR:   So what I am suggesting is could I request - it will be a request only - that the respondent file its submissions in reply within the next seven days.

MR COGSWELL:   Asking for 10 days, your Honour.  They just arrived last week apparently.

HER HONOUR:   Ten days, and that you should file your submissions in reply within a further seven days and you should take steps then to have your books printed in December.  Is that ‑ ‑ ‑

MR BONNICI:   Yes.  My instructing solicitor ‑ and I did not think things had changed - there must have been a misdirection somewhere.  Obviously the appeal books have to be prepared ‑ ‑ ‑

HER HONOUR:   By you.

MR BONNICI:    ‑ ‑ by us, yes, not by the Registry.

HER HONOUR:   No, by you.

MR BONNICI:   That was wishful thinking.

HER HONOUR:   Yes.  No, you will have to get them printed and you will have to have that underway by December I should have thought to get in the February list.

MR BONNICI:   My instructing solicitor and myself are going out to the gaol on Thursday.  At this stage, because things had to move so quickly, we have not even approached the Legal Aid Commission.  This has just been done basically to - because there was not enough time to do anything else.  I am not sure what the client will be saying on Thursday when we tell him the date of the expedited - given the expedition is February, but certainly by Friday we will certainly be consenting to - we will be doing everything in our power to get the matter on that quickly.

HER HONOUR:   You will have it on, I am here to tell you.  Yes, once I have expedited it, it will be expedited, but you will have to co‑operate in the process.

MR BONNICI:   We will certainly do that, yes.

MR COGSWELL:   Would a directions hearing for the purpose of settling the index be of any assistance?

HER HONOUR:   No.  If grown men cannot settle an index in a matter such as this, then it is a sorry day for the country.  I am not going to ‑ ‑ ‑

MR BONNICI:   Yes, your Honour, I would ordinarily agree with you but the history of this matter ‑ ‑ ‑

HER HONOUR:   Yes, I do not mind.

MR BONNICI:   But I said that in half jest.

HER HONOUR:   Yes, thank you.  At this stage I will simply order that the special leave application be expedited to be heard in Sydney on 14 February 2003.  I will certify for the attendance of counsel.  The parties have noted my requests as to what should be done to get the matter ready in time for February hearing.  The Court will now adjourn, thank you.

AT 10.34 AM THE MATTER WAS CONCLUDED