Golding & Anor v The Queen

[2015] HCATrans 199

[2015] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B41 of 2015

B e t w e e n -

SIMON GOLDING

First Applicant

TERRANCE ELFAR

Second Applicant

and

THE QUEEN

Respondent

Application for removal

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 18 AUGUST 2015, AT 10.14 AM

Copyright in the High Court of Australia

MR R.K. NEWTON:   If the Court pleases, I appear for the applicants.  (instructed by Zali Burrows Lawyers)

MR G.R. RICE, QC:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Cth))

HIS HONOUR:   Yes, Mr Newton.

MR NEWTON:   Your Honour, this is an application which was filed on 27 July 2015 for the removal of proceedings in the Supreme Court of Queensland – sorry, can your Honour hear me?

HIS HONOUR:   I can hear you quite well, thanks.  You might just tell me what material you are relying on.

MR NEWTON:   Yes, your Honour, I rely on the affidavit of Zali Burrows, which was sworn on 17 August 2015.

HIS HONOUR:   And you are reading a summons for removal.  Is that right?

MR NEWTON:   Yes, your Honour.

HIS HONOUR:   Application for removal?

MR NEWTON:   Yes, your Honour.  Your Honour, I should say this ‑ ‑ ‑

HIS HONOUR:   What was the date of the affidavit of Ms Burrows that you have read?

MR NEWTON:   17 August, your Honour.

HIS HONOUR:   Right.  Mr Rice, have you any material?

MR RICE:   Yes, your Honour, I read the affidavit of Jessica Lee Williams, filed 14 August.

HIS HONOUR:   Thanks, Mr Rice.  Yes, thanks, Mr Newton.

MR NEWTON:   Your Honour, the application for removal itself is essentially based on two grounds.  One is that the circumstances leading up to the indictment of my clients involved a compulsory examination before the Australian Crimes Commission, and there is a concern about the manner in which those examinations were attended by persons who may have some connection with the investigative or prosecutorial aspects of the proceedings and, in turn, that in some respects that material may have been disseminated improperly to the Queensland Supreme Court.  Now, that is one aspect of the matter which we say is a matter ‑ ‑ ‑

HIS HONOUR:   Was that question raised before or at the trial in the Supreme Court?

MR NEWTON:   It has been raised on various occasions, your Honour.  There was an application last year for a stay of proceedings in which some of this material was canvassed.

HIS HONOUR:   Well, on the face of things then, to the extent that you might have a good complaint, it is a question that can be agitated on appeal.

MR NEWTON:   It could, indeed, your Honour, and I put it this way.  Since the X7 decision and the decision in Lee this Court has partly covered the field in terms of how embargoed material ought to be dealt with and how access should be given to examinations and what impact that might have on proceedings.  It is, of course, possible that we could agitate those matters in the Court of Appeal and it is, of course, definitely possible that even if it came to this Court that it might be remitted to another court.  But, with respect, we say it is such an important question that it deserves the attention of this Court in the first instance.

HIS HONOUR:   Well, it is not really a question, is it, at the moment because insofar as it was ever a question, it was a question pending in the Supreme Court in relation to the trial and that question has now been resolved against your client by the guilty verdict. So, insofar as section 40 allows this Court to remove matters or remove causes that are pending in other courts into this Court, so far as it concerns that question, that question has been decided and your remedy now, if you have one, is an appeal.

MR NEWTON:   There is a further element, your Honour, which we say complicates that kind of analysis, and that is to say that what has emerged and what is not shown as a ground on the application for removal but is dealt with in Ms Burrows’ affidavit is that notwithstanding the terms of the indictment which specifies an offence in Queensland or elsewhere, it appears from the trial that the thrust of the evidence put against my clients is that the events in fact took place offshore and out of the State of Queensland.

HIS HONOUR:   Now, was that question agitated as a question before the trial judge or at the trial?

MR NEWTON:   I am instructed it was.  I was not there, your Honour, I do not have the transcript ‑ ‑ ‑

HIS HONOUR:   Well, in the event that it was agitated, then we can take it from the jury’s verdict that it must have been resolved against you, so that once again that is a question that has been resolved.  It is not a question pending in the Supreme Court any more because it has been resolved by this verdict.  There is nothing for this Court to remove and you have a remedy if you have a good point.

MR NEWTON:   Well, no, your Honour, with respect.  On a factual basis, it would be possible for the jury to make certain findings about what took place at a factual level, but ‑ ‑ ‑

HIS HONOUR:   They might be invited to make findings on the basis of the evidence that was adduced.  Now, I do not know what the evidence was that was adduced.  I have not been given the evidence.  But, to the extent that it was an issue ‑ to the extent that it was a question on which your side wished to rely, it was a question which has been resolved by the verdict against you.  To the extent that you can make the point by reference to the evidence at the trial, you can make the point on an appeal.

MR NEWTON:   Well, with respect, it is not purely an evidentiary matter.  It goes down ultimately to the question ‑ ‑ ‑

HIS HONOUR:   No, there are probably some questions of law as well, not the least of which being, given that this is a Commonwealth offence, the question you are seeking to agitate may or may not have any legal significance.  But these are all questions which could – and to the extent that you have a good point, should have been agitated at the trial, and to the extent that you have a good point I cannot understand you are saying to me that you cannot agitate them on an appeal.

MR NEWTON:   They could be agitated on an appeal, your Honour.

HIS HONOUR:   Well, given that is so, and given that the question has been resolved in the proceedings that are pending in the Supreme Court of Queensland, then you do not have a basis for an application for removal to this Court. You seem to be proceeding on some sort of assumption that section 40 is a warrant to this Court to exercise a roving jurisdiction over the supervision of the courts in the hierarchy. This is not correct.

MR NEWTON:   Your Honour, I do not put it on that basis.  Your Honour, the question that a judge raised goes fundamentally to the jurisdiction of the Queensland Supreme Court to have dealt with this matter at all ‑ ‑ ‑

HIS HONOUR:   The Supreme Court of Queensland is a supreme court of record.  It has the lawful authority to determine its jurisdiction.  It is not an inferior court.  It is not some tribunal created by statute that does not have

the authority to determine its jurisdiction.  If it makes an error of law in determining its jurisdiction then you have a remedy by way of appeal.  There is little point in you making submissions to me in support of an application for removal which might be appropriate if it were an inferior court or tribunal and if you are seeking relief other than removal.

MR NEWTON: Yes. I will move on, your Honour. Your Honour, the third leg of the application is this, that there was an application which was refused for a trial by judge alone and that involved an analysis of section 80 of the Constitution and the impact – and how that was interpreted by the decision in Brown’s Case. 

HIS HONOUR:   Did it also involve a contention that as a matter of fact your clients could not receive a fair trial by a jury because of pre‑trial publicity?

MR NEWTON:   That is, in part, the ‑ ‑ ‑

HIS HONOUR:   Was that question of fact agitated and resolved in your favour?

MR NEWTON:   No, your Honour.

HIS HONOUR:   Well, given that that question was not resolved in your favour, even if it were held that section 80, in accordance with the decision of this Court in Brown, which has stood for 30 years, even if it were the case that section 80 did not mandate a jury trial, the factual basis on which you suggest that a discretion to have trial by judge alone was not made out on the facts.

MR NEWTON:   No, your Honour.  If the Court pleases, those are my submissions.

HIS HONOUR:   Yes.  Yes, Mr Rice.

MR RICE:   The respondent’s contention is that there is no pending cause to be removed to the High Court.

HIS HONOUR:   No.

MR RICE:   The proceedings identified are the proceedings on indictment 864 of 2011.  In relation to that verdicts have been delivered and convictions have been entered.

HIS HONOUR:   The question of sentence remains.

MR RICE:   It does.

HIS HONOUR:   To remove the only question pending in the Supreme Court of Queensland to this Court would mean that this Court would have to deal with the question of sentence.

MR RICE:   That is the only outstanding matter in relation to the indictment.

HIS HONOUR:   This is not an attractive prospect. No question relating to the Constitution or involving its interpretation would seem to arise.

MR RICE:   No, it does not, your Honour.

HIS HONOUR:   At this late stage, to disrupt the proceedings by removing them into this Court when the only live matter pending in the Supreme Court of Queensland is the question of sentence would seem to be a very odd exercise of discretion.

MR RICE:   Well, we adopt that, respectfully.

HIS HONOUR:   Do you have anything else that you wish to raise?

MR RICE:   Your Honour, the particular issues that are raised in the grounds have been extinguished by the verdicts.

HIS HONOUR:   Yes.  Mr Newton, is there anything you want to say in reply?

MR NEWTON:   No, your Honour.

HIS HONOUR: This is an application under section 40 of the Judiciary Act 1903 (Cth) for the removal into the High Court of the whole of the cause pending in the Supreme Court of Queensland in respect of Supreme Court indictment number 864 of 2011. On that indictment, the applicants were charged with importing a commercial quantity of a border controlled drug, namely, cocaine, between 5 October 2010 and 12 October 2010, contrary to section 307.11 of the Criminal Code (Cth).

The applicants have been tried for the offence charged.  The trial commenced on 22 July 2015; and on 13 August 2015 the jury returned a verdict of guilty against each applicant.

The applicants seek to agitate a number of questions in this Court.  The first issue concerns the fairness of their trial, given the circumstances of their examination by the Australian Crime Commission, and the co‑operation between the ACC and the prosecution in that regard.

The second question relates to the contention that the Supreme Court of Queensland did not have jurisdiction to hear and determine the case against the applicants, given that the offence alleged against them is said to have occurred outside of the territorial jurisdiction of Queensland.

The third issue concerns the contention that the applicants, concerned by unfavourable pre‑trial publicity, waived their right to trial by jury, and the decision of this Court in Brown v The Queen (1986) 160 CLR 171, which held that the requirement in section 80 of the Constitution of a trial by jury of an offence under a law of the Commonwealth charged on indictment may not be waived by an accused, was wrongly decided and should be overruled.

The power conferred by section 40 of the Judiciary Act is exercisable in relation to “proceedings . . . pending in . . . a court of a State”.  The applicants are yet to be sentenced, but so far as any question relating to their guilt of the offence is concerned, that question has been resolved against them.  So, given the determination of their guilt by the Supreme Court, no issue as to their guilt is pending in the proceedings in that court which might be removed to this Court.  The applicants’ remedy, if any, lies by way of appeal to the Court of Appeal of Queensland and then, if special leave is granted, to this Court.

In addition, as to the first two questions which the applicants seek to agitate, it is to be noted that section 40(1) of the Judiciary Act authorises the removal of a:

cause or part of a cause arising under the Constitution or involving its interpretation –

It is, to say the least, doubtful whether either of the first two questions which the applicants seek to agitate arises under the Constitution or involves its interpretation.

As to the third question, whether this Court is disposed to reconsider its longstanding decision in Brown is an issue best resolved on an application for special leave after the Court of Appeal has considered, if appropriate, whether there was a basis in the applicants’ concerns, as a matter of fact, about the effects of pre‑trial publicity on their prospects of a fair trial.

Further, it is to be understood that the power conferred by section 40(1) does not invest this Court with a general supervisory jurisdiction over the other courts in the Australian judicial system. So in Bienstein v Bienstein (2003) 195 ALR 225 at paragraph [45] Justices McHugh, Kirby and Callinan said:

Orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed. Only where the issues are important and require this court’s urgent decision should the court make an order for removal. Not only do orders removing proceedings interrupt the processes of the lower courts but they deny this court the benefit of the reasons of the lower courts on the constitutional issues and allow parties to bypass the special leave and leave requirements of the Judiciary Act.

In particular, under section 40(4) of the Judiciary Act this Court must be satisfied on an application for removal:

that it is appropriate to make the order having regard to all the circumstances, including the interests of the parties and the public interest.

I am not satisfied that, even if it were otherwise open to me, it is appropriate in the public interest to make the orders sought. It is not in the public interest that these proceedings should be disrupted at this late stage by removing them into this Court when the applicants are yet to be sentenced. The power conferred by section 40 should not be exercised to disrupt the proceedings of a lower court, save where there is demonstrated urgency which requires that course and no such urgency is shown in this case.

Secondly, any question to be agitated as to the propriety of their convictions could be raised by the applicants before the Supreme Court.  This Court would then have the benefit of the consideration of those questions by the Supreme Court.  Thirdly, facts which may bear upon the resolution of the questions which the applicants seek to agitate and, indeed, their precise formulation, may need to be agreed or established by findings in the Court of Appeal in order to enable the questions to be determined.

Accordingly, the application for removal is dismissed.

Is there anything further?

MR RICE:   No, thank you, your Honour.

HIS HONOUR:   Mr Newton?

MR NEWTON:   Nothing, your Honour.

HIS HONOUR:   Very well.  Adjourn the Court.

AT 10.32 AM THE MATTER WAS CONCLUDED