Hamdan v Callanan; Younan v Callanan

[2015] HCATrans 271

[2015] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B2 of 2015

B e t w e e n -

HAYSAM HAMDAN

Applicant

and

JOHN DAVID CALLANAN

Respondent

Office of the Registry
  Brisbane  No B3 of 2015

B e t w e e n -

PAUL YOUNAN

Applicant

and

JOHN DAVID CALLANAN

Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 9.45 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, I appear with MR A. BOE for the applicant in each of these cases.  (instructed by Nyman Gibson Miralis)

MR M.J. COPLEY, QC:   If the Court pleases, I appear with my learned friend, MS E.J. LONGBOTTOM, for the respondent in each matter.  (instructed by Crime and Corruption Commission (Qld))

KIEFEL J:   Yes, Mr Walker.

MR WALKER:   Your Honours, these provisions are provisions which are relevantly directed to the investigations – that is, the obtaining of information for the prosecution in appropriate cases of persons or offences.

KEANE J:   But in this case no prosecution has been commenced.

MR WALKER:   Your Honour goes straight to the point, with respect, and one reason, we submit, for this Court to take the matter up – and perhaps I should add the word “now” – is the critical question as to whether the possibility, not a certainty, the possibility of a trial in future which is the explicit aim or purpose of these investigations is something which affects the nature and true meaning, in their constitutional setting, of these provisions.

We accept entirely – it is obvious in the position of anybody who resists an assertion of criminal involvement against themselves, it is obvious – that we not only contemplate but we earnestly look forward to there never being a trial.  We also accept, as with respect our learned friends have well put it in their written submission, that at a trial it may well be – and that is our words not theirs – that there will be power in the trial court, by voir dire or otherwise, to restrain the prosecution from the use of material which it would be unfair to deploy because, for example, it was derived from compelled information from our clients.  It would be perverse for us to say that possibility does not exist.  However, it is not perverse for us to point to the fact that that possibility is not to be found in the statute.

Now, your Honours appreciate that the last sentence of our paragraph 8 in our written submission, page 47 of the application book in the version it is convenient to go to, is of course highly controversial on that last point.  I accept that the express provision in section 197, which you will find in various places but conveniently at page 69 of the book, I accept that our argument does resemble in a sense an expressio unius argument with all the caveats that that should ordinarily attract.

But it is to be recalled in what setting these provisions provide what they do and do not provide what they do not provide.  These are provisions to abrogate one of the most fundamental common law privileges.  It has done so by appropriately plain language and necessary intendment, and it has followed one of the fashionable routes to provide the trade‑off – that is, the direct use immunity in this case in section 197(2) – which ordinarily prevents concerns about fair trial being affected by the extraction from people compulsorily, under threat of penalty if they do not answer, information which may incriminate them.

KIEFEL J:   Mr Walker, your argument rather uniquely combines X7 and Kable.

MR WALKER:   Yes, your Honour.  When your Honour says “rather uniquely” ‑ ‑ ‑

KIEFEL J:   But it is not entirely clear to me how this would be – how the outcome and the extent to which you rely upon some extension of X7 ‑ ‑ ‑

MR WALKER:   It is without doubt an extension case that we seek to bring to the Court.  It would be extended in a number of ways, if I can just catalogue them.  First of all, we draw on the proposition that criminal investigation in this country, and we submit for constitutional reasons, has an accusatorial character, and we submit that that is not merely incidentally related to but is inherently related to the existence of the privilege.

It raises the question, given that it is utterly well established that the privilege can be affected by, indeed abrogated by legislation, as to whether the outcome of such legislation will have effect upon the ultimate fairness of a trial in constitutional terms where material thus compulsorily extracted of an incriminating nature is sought to be used. 

That problem has been avoided, if I may say, traditionally by the provision of use immunities.  This case raises the question as to whether when that trade‑off protection is not complete, so when there can be derivative use, whether that has an effect not only at trial because, as Justice Keane has pointed out, we may never face a trial.  There may never be enough information to justify prosecution.  To digress for a moment, if on the facts of this case – a reason that makes this a good vehicle is that it appears from the material that there is regarded by the authorities, with all the usual caveats, to be an inadequacy of material to justify a prosecution, that being one of the operational reasons impelling the discretion, to issue these notices to our clients.

So that the centrality or significance of the proposed interrogation to a possible prosecution is really clear in this case.  We say that means it is part of the process all of which – pre‑trial as well as trial, it is accusatorial in nature – is thrown up for this Court.  Of course there is an extension to previous doctrine in the Court because, on our researches, there has been thoroughgoing investigation and adjudication in this Court of the question of the extent of the privilege – Sir Harry Gibbs in Sorby would be the classic place to find it – considered and rejected what was pronounced to be a fallacy that the privilege actually only related to what we would now call in American, direct use, and that of course it includes the right to resist supplying material from which there may be derived material to be used against one at a trial – the train or chain of inquiry link, which must be examined by the court entertaining the claim to privilege. 

If that is true of the privilege which is well‑established in the court, what does that say about the accusatorial nature, as this Court has recently made it clear, we would respectfully submit, of criminal process not only at the trial itself.  If we are right in seeing that the derivative use, not protected by 197 while the direct use is protected in 197, then this Court does uniquely present a test of one of the patterns of legislation in this area.

The other pattern, of course, would never raise a difficulty because, as I think in this State’s Coroners Act there is a derivative use immunity provided as well.  So the public interest in obtaining the information is accompanied by a trade‑off reflecting an accusatorial tradition, we say a constitutional tenet, that a trial could not be fair where material is deployed against a person that has been compulsorily extracted from them or is derived from material compulsorily extracted from them.

KEANE J:   But if that situation were to arise, why is not section 130 of the Evidence Act the answer?

MR WALKER:   Your Honour, that is why I said it would be perverse for us to shun that.  That would be protective of my clients if they were ever to be in that position, and I do not want to say anything that would detract from the availability of those arguments which, as I say, are well and truly recognised in the written submissions against us.  But, we say, this is a case that raises – that point has not been utterly settled; it reflects an approach that can be seen in recent decisions; it reflects a reason for decision in a number of recent decisions but it is obviously going to be statute by statute.

This case raises, we think more clearly than any other that we can see in the courts, what happens when there is a specific trade‑off provision, section 197(2), regulating what can happen at trial, and there is silence about the other important part of the privilege, namely, to resist being compelled to provide material from which incriminating material may be derived.

Now, of course that has an expressio unius element to it.  We are saying, look what they have provided by way of protection, it follows that we do not have the other.  This Court, we submit, has not gone anywhere near so far as yet to say, regardless how incomplete the enacted protection upon abrogation of privilege is, it is a constitutional rule that a trial will not be fair unless there is complete protection.  Your Honours appreciate that that is a matter of constitutional doctrine, Chapter III doctrine, which we submit is ripe and ready in this case now.  We may not be right but, in our submission, that is a very important question which is pregnant in a number of the last three or four years’ decisions.

KEANE J:   Well, to the extent that it is an important and interesting question, it is unfortunate that it was not raised in the courts below for their attention.

MR WALKER:   Yes, unquestionably.

KIEFEL J:   And it remains rather hypothetical in this case.

MR WALKER:   It does not remain hypothetical, it alas remains unexplored in the record below, and thus unconsidered in the reasons below, and, your Honours, I cannot say anything beyond what we have written about that point.  Your Honours know that there, as it were, we hang on by our fingernails and say, well, this Court has never said that is a bar to considering such an argument for the first time upon an appeal in this Court.

I accept – how could I not – that it is a reason for your Honours to take into account in considering rightness and suitability of a vehicle at the special leave point.  As it happens, the fact that that point was not taken below does nothing to affect those attributes of the case, or the cases, which rendered them very considerable evocative vehicles for this point.  Neither, with great respect, bearing in mind the recency of this Court’s reasoning in cognate areas, should it be regarded as fatal to us in special leave that you will not have the benefit of the consideration of the judges below.  I accept that is, at the very least, regrettable but it should not be fatal on special leave.

Now, your Honours, in our submission, the question whether criminal investigation statutes regulating pre‑trial and also conduct that may produce a decision that there never will be a trial – in other words, an investigation in the ordinary sense – the question whether those statutes are subject to a requirement, that they do nothing to conduce to an unfair trial has not yet been determined by the court, is an extension of course and is very, very important because it amounts – it would be, as it were, a native form of the due process guarantee in relation to executive as well as judicial conduct.  In our submission, that is self‑evidently important. 

There are no factual difficulties in this case, no factual obscurities, and finally, to answer Justice Kiefel, it is not on that account rendered to the slightest degree hypothetical.  We have actual facts concerning the reasons why this compulsory process has been put in train.  They think they need more, they could not prosecute without, and it is for those reasons, in our submission, that notwithstanding the difficulties that I hope we have squarely recognised both in writing and in what I have said in relation to the matter not having been ventilated below, notwithstanding the fact that of course we look forward to there being no trial whatever, and notwithstanding that of course we do not give up the argument that at trial the court would have ample powers to prevent unfairness, we submit that this is the kind of legislation with which we are all probably bound to live forever and that it is appropriate for the Court to look at these fundamental aspects of them as soon as possible.  May it please the Court.

KIEFEL J:   We need not trouble you, Mr Copley.

We do not consider that the prospects of success in this matter are sufficient to warrant the grant of special leave.  Special leave is refused.

AT 10.00 AM THE MATTER WAS CONCLUDED