Hart v The Commonwealth of Australia [2011] HCATrans 48

[2011] HCATrans 48

[2011] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C1 of 2011

B e t w e e n -

STEVEN IRVINE HART

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Summons for directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 7 MARCH 2011, AT 12.01 PM

Copyright in the High Court of Australia

MR A.J. GREINKE:   If it please the Court, I appear with my learned friend, MS G.C. DEMPSEY, for the plaintiff.  (instructed by Buchanan Law)

MR R.G. ORR, QC:   If the Court pleases, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   There is a summons dated ‑ ‑ ‑

MR GREINKE:   It was filed on 24 February 2011.

HIS HONOUR:   Filed on 24 February, yes.  Just tell me, what were the offences of which your client was convicted?

MR GREINKE: The offence was fraud against the Commonwealth under what was then section 26D of the Crimes Act.

HIS HONOUR:   That was at a trial?

MR GREINKE:   That was at a trial by jury in Queensland.

HIS HONOUR:   How long ago?

MR GREINKE:   I believe it was in 2004.  The exact date – I was not involved at that stage of the proceedings.

HIS HONOUR:   The other unlawful activity?

MR GREINKE: The other unlawful activity was the subject of the trial before a single judge of the District Court this year and the offences in relation to that were section 26D again, but also 135 under the Criminal Code, which are in similar terms, although there is a difference in the way that the Code operates.

HIS HONOUR:   The total there was a large sum of money, was it not?

MR GREINKE:   I apologise, I did not hear you.

HIS HONOUR:   It says here $18,850,000.

MR GREINKE:   That is correct.  That was the penalty imposed.

HIS HONOUR:   What is the current progress of the appeal to the Queensland Court of Appeal?

MR GREINKE:   An outline of argument has been filed by my client.  There will need to be amendments in relation to a notice of appeal, but that is the stage at which it has reached.  There has been no submissions in reply by the respondent to that appeal at this stage.

HIS HONOUR:   Do you have a copy of that notice of appeal in your brief?

MR GREINKE:   Not with me, no, your Honour.  I can indicate to your Honour that the principal grounds are, one, that on the evidence that the finding of fraud and other offences ought not have been made and that there are also some procedural challenges both to the admissibility of evidence and the way the trial was conducted, they are also the subject of appeal.  So the argument is either, on appeal, that the offences should not have been found or, in the alternative, that there should be a new trial based on those grounds of appeal.

HIS HONOUR:   Mr Orr has a copy.

MR GREINKE:   Indeed, your Honour.  Might I hand that up to you?

HIS HONOUR:   Yes, thank you.  Just sit down for a moment, please.  How long did the proceeding go in the District Court?

MR GREINKE:   I believe the trial was about two weeks, maybe longer, your Honour, in the first instance.

HIS HONOUR:   Yes.  Culminating in this judgment of 19 November 2010?

MR GREINKE:   That is correct.

HIS HONOUR:   What are these decisions of McMunn and Pearce?

MR GREINKE:   McMunn and Pearce are about the issue being whether or not the offence of fraud is perfected by a person relying upon the fraud or whether the fraud can be complete without any person having relied upon it or acted to their detriment.  There was an issue in the case about whether, in relation to taxation offences, whether the offence of fraud could be complete without the Commonwealth relying upon the fraudulent tax returns to issue an assessment in favour of the taxpayer. 

HIS HONOUR:   McMunn and Pearce, were they federal prosecutions?

MR GREINKE:   McMunn and Pearce, they were in relation to federal offences, but I believe they were heard in State courts.

HIS HONOUR:   Yes, but they were federal offences?

MR GREINKE:   Yes, your Honour.

HIS HONOUR:   Yes, thank you.  I will give Mr Orr back his notice of appeal.  It seems to me, having read the submissions you have both thoughtfully put on and prepared fully, that the better course would be to remit this to the Queensland Supreme Court to be linked in the Court of Appeal with your pending criminal appeal.  Do you have anything to say in opposition to that course?

MR GREINKE: Could I say three things, your Honour, and effectively reply to my learned friend’s outline. One is that one of the arguments for remittal is that it should be for the Queensland court to determine the factual substratum for the issues in this Court to be agitated. My client’s argument in relation to section 80 do not depend on any factual substratum. The only facts which are in issue are in relation to his standing and there is no real dispute about those facts.

HIS HONOUR:   The standing will disappear if you are successful, will it not?

MR GREINKE:   That is a possibility, yes, your Honour, although, as I said, one of the issues is that my client is arguing for a new trial based on procedural and other evidentiary issues and if that is the case, he still stands exposed to further trial in relation to those issues.  The other issue is that if this was a matter that had been raised in the Court of Appeal at first instance, it is a matter that might well have been brought before this Court by way of a section 40 removal application in relation to that question and given that it is a pure question of law, as I have indicated previously, and it is an issue that turns upon what a proper meaning of decisions of this Court are in the past, it is a matter that ought to be determined by this Court.  Those are the only further submissions I wish to add to my written outline.

HIS HONOUR:   I will see what Mr Orr says.  Yes, Mr Orr?

MR ORR:   Your Honour, we put an outline of submissions before your Honour.  In our view, it would more facilitate the litigation if the two matters were heard together in the Queensland Supreme Court.  There are some underlying facts which are relevant which go to the details of the findings of the District Court which are in issue in the Court of Appeal proceedings.

HIS HONOUR:   Yes, that is what worries me, amongst other things.

MR ORR:   Yes.  Whilst the District Court judge has done a significant judgment, there are issues within that judgment which are a bit hard to follow and which, in our submission, would be more appropriate for the High Court to consider the matter with a judgment of the Court of Appeal of Queensland which sets out the basic factual matters and the legal issues and then enables this Court to deal with them on a special leave or appeal hearing.  In our view, that would be the more suitable way to proceed. 

It is true that the basic proposition put by the plaintiff in this case are to seek to have a reopening of the decisions of the High Court on section 80 of the Constitution, but, in our submission, it is not right for that determination without getting a proper analysis of both the factual issues which give rise to the findings of the District Court by the Court of Appeal and, indeed, the legal issues which that raises. As we said in our submissions, the plaintiff seeks to agitate the High Court’s thinking on section 80 of the Constitution, but that inherently is underpinned by what these provisions actually do in the Proceeds of Crime Act and the way they work and, in our view, it would be a much appropriate way to proceed by having the Queensland Court of Appeal look at those issues and make findings and then for the High Court to consider those.  Thank you, your Honour.

HIS HONOUR:   Yes.  I propose to make orders in terms of the draft as amended.  The orders I propose to make are:

1.The proceeding be remitted to the Court of Appeal of the Supreme Court of Queensland to the intent that it be linked to the pending appeal in that Court No 159 of 2011.

2.The proceeding continue in that Court as if the steps already taken in the proceeding in this Court had been taken in that Court.

3.The Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.

4.The costs of the proceedings to date and the remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to the Court of Appeal of the Supreme Court of Queensland and then in the discretion of that Court.

5.The costs of the summons filed 24 February 2011 be costs in the proceeding.

Does counsel have a note of that?  Very well.  I make orders in accordance with that draft which I have initialled, amended, dated and placed with the papers.

I will now adjourn.

AT 12.15 PM THE MATTER WAS CONCLUDED