Green v The Queen; Quinn v The Queen [2011] HCATrans 71

[2011] HCATrans 71

[2011] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S18 of 2011

B e t w e e n -

BRETT ANDREW GREEN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S61 of 2011

B e t w e e n -

SHANE DARRIN QUINN

Applicant

and

THE QUEEN

Respondent

Summonses

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 23 MARCH 2011, AT 9.42 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court please, I appear for the applicant in Matter No S18 of 2011.  (instructed by Legal Aid NSW)

MS G.A. BASHIR:   If the Court please, I appear for the applicant in Matter No S61 of 2011 with MS A. BETTS.  (instructed by Ford Criminal Lawyers)

MR C.K. MAXWELL, SC:   If the Court please, I appear for the respondent in both matters.  (instructed by Solicitor for Public Prosecutions (NSW))

HER HONOUR:   Yes, Mr Game.

MR GAME:   Your Honour, we have a summons and an affidavit.

HER HONOUR:   That is the affidavit of Janet Witmer affirmed on 16 February 2011?

MR GAME:   Yes, your Honour, and I read that affidavit.

HER HONOUR:   Yes.

MR GAME:   Your Honour, the basis of the application can be shortly stated.  With the increase in the sentence of the non‑parole period in the case of the applicant I appear for from 16 May 2011 to 16 May 2012, the subject matter of the application will be effectively eaten up with the time taken for the case to be brought to hearing.  There is that.  Then, in our submission, there is at least one, and probably more important questions.  So I just mention that for the purposes of saying that the application has prospective merit insofar as that is an issue on this application. 

While I am on my feet, your Honour, could I indicate that we filed an amended draft notice of appeal and I would like to tidy up the special leave application and seek leave to amend the application for special leave grounds to bring them in line with the amended draft notice of appeal.  So if I could have leave to do that, your Honour, I would be grateful.

HER HONOUR:   Yes.  Mr Crown, any difficulty with that course?

MR MAXWELL:   No, your Honour.

HER HONOUR:   Yes.

MR GAME:   Unless your Honour wishes to hear from me further, that is the basis of the application.

HER HONOUR:   Yes, thank you, Mr Game.

MR GAME:   Thank you, your Honour.

HER HONOUR:   Mr Crown, is there any objection to the proposal for expedition?

MR MAXWELL:   No, your Honour, it appears appropriate, so the Crown does not oppose that.

HER HONOUR:   Yes.  Do I take it, having regard to the state of readiness – I see that the applicant’s summary has been filed and the respondent’s in this matter.  I think there is a question of a reply still to be filed.

MR GAME:   Ms Bashir has filed her reply and we need a day or two to get ours in, but we will put one on and it will be fairly short because most of it is in Ms Bashir’s reply.

HER HONOUR:   I see.

MR GAME:   But we do wish to say something.  There is one thing we do wish to say which is important, which is that we wish to, shall I say, elevate the standard non‑parole question to a special leave question, so we will flag that in the reply, your Honour.  Ms Bashir has already flagged that in her reply.

HER HONOUR:   All right.  Yes.

MR GAME:   I am talking sort of code, but I did not mean to be.  I am just saying that the question about how the standard non‑parole period was treated as a starting pointing by Justice Hulme, particularly in the case of Mr Green, but where his feeling was found to be below the middle range of seriousness and then how the standard non‑parole period was applied, in our submission, does raise a separate special leave question.

HER HONOUR:   I understand.

MR GAME:   I am not trying to piggyback, but there is another case that got special leave about standard non‑parole periods called Muldrock a couple of weeks ago, I think.

HER HONOUR:   I see.  All right.  Do I take it that the parties would be in a position, assuming the order for expedition is made, for each of these matters to go into the special leave list in Sydney on Friday, 8 April next?

MR GAME:   Yes, your Honour.

MS BASHIR:   Yes, your Honour.

MR MAXWELL:   Yes, your Honour.

HER HONOUR:   Yes, all right.  Ms Bashir.

MS BASHIR:   Your Honour, I move on the summons filed on 18 February 2011 and I read two affidavits of Victoria Georgenia Havryliv sworn on 17 February 2011 and the affidavit sworn 22 March 2011 filed just this morning, your Honour, which is just to inform the Court of matters that have occurred since the summary of argument and respondent’s summary of argument were filed with the Court.  It was briefly summarised in one of the last paragraphs of my reply.  But, your Honour, we are asking for a further order in our summons, that is, that there be an extension of time granted for filing the application for special leave.

HER HONOUR:   Yes.  Mr Crown, is there any opposition to the extension that is sought?

MR MAXWELL:   No, your Honour.

HER HONOUR:   Yes, very well.  I do not need to hear from you further, thank you, Ms Bashir.

In each of these related applications, were the orders of the sentencing judge to be restored, the non‑parole period of the sentence of the applicant, Green, would expire on 16 May 2011 and the non‑parole period of the applicant, Quinn, would expire on 29 April 2011.  In the circumstances, it is appropriate that the hearing of the applications for special leave to appeal from the orders of the Court of Criminal Appeal be expedited and I so order. 

In the case of the applicant, Shane Darrin Quinn, his solicitor, Victoria Havryliv, in an affidavit sworn on 17 February 2011 sets out the chronology.  Relevantly, judgment was delivered on 17 December 2010, however, the grant of legal aid to Ms Havryliv’s firm was not made until 31 January 2011.  Thereafter Ms Havryliv promptly briefed counsel.  The extension of time that is sought is not opposed.  In the matter of Shane Darrin Quinn, I direct that the time for the filing of his application for special leave to appeal be extended to 18 February 2011.

In each matter I stand the applications over to the list in Sydney on 8 April 2011 for hearing. 

Does that attend to all matters?

MR GAME:   Could I have leave to amend the application for special leave?

HER HONOUR:   My apologies, Mr Game, yes.  In the matter of Brett Andrew Green, I grant – the leave that you seek is to?

MR GAME:   File an amended ‑ ‑ ‑

HER HONOUR:   It is the amended draft notice of appeal dated 22 February 2011, is that right?

MR GAME:   We just want to bring the application for special leave into line with the amended draft notice of appeal.

HER HONOUR:   Yes.  The order that you seek?

MR GAME:   Is to amend the application to reflect the draft notice ‑ ‑ ‑

HER HONOUR:   Is to amend the application for special leave to reflect the amended draft notice of appeal filed on 22 February 2011, is that right?

MR GAME:   Yes, thank you, your Honour.

HER HONOUR:   Yes.  I so direct.   Yes, very well, I will adjourn.

AT 9.53 AM THE MATTERS WERE ADJOURNED