Hawes v Governor of the Goulburn Correctional Centre

[1998] HCATrans 48

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S140 of 1997

B e t w e e n -

PETER CHARLES HAWES

Applicant

and

THE GOVERNOR OF THE GOULBURN CORRECTIONAL CENTRE

First Respondent

THE COMMISSIONER FOR POLICE

Second Respondent

Application for expedition

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 FEBRUARY 1998, AT 9.34 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   If your Honour pleases, I appear for the applicant in this matter.  (instructed by Jeffreys & Associates)

MS M. LATHAM:   If your Honour pleases, I appear for the first and second respondents.  (instructed by I.V. Knight, Crown Solicitor's Office,(New South Wales)).

HIS HONOUR:   I have a certificate from the Deputy Registrar certifying to the fact that the Governor of the Goulburn Correctional Centre appears but asks to be excused and submits to any order of the Court save as to costs.  He is therefore excused.  Yes, Mr Papayanni.

MR PAPAYANNI:   A summons dated 9 February 1998 for an application for an expedited hearing of the application for special leave I move on.

HIS HONOUR:   There are really two processes before me.  One of them is, as I understand it, a summons for expedition and the other is a claim for relief in the terms of the order sought in the notice of appeal, paragraph 3(a), is that correct?

MR PAPAYANNI:   No, your Honour.

HIS HONOUR:   This is the order restraining the taking of samples.

MR PAPAYANNI:   No.

HIS HONOUR:   Am I concerned with that application?

MR PAPAYANNI:   3(a) of what, your Honour?

HIS HONOUR:   The notice of appeal.  It says:

3(a)  an order that the First Respondent, the Second Respondent and each of their servants or agents be restrained from taking samples -

presumably, pending the order of this Court.

MR PAPAYANNI:   No, we have an order from the Court of Appeal, the President of the Court of Appeal in relation to that.

HIS HONOUR:   Who has given that order?  I am not aware of that.

MR PAPAYANNI:   I have a copy of the judgment here, your Honour.

HIS HONOUR:   Yes.  That court has provided an order pending the determination of the matter in this Court, is that correct?

MR PAPAYANNI:   That is correct, yes.

HIS HONOUR:   I see.  So, we do not have to worry about the - - -

MR PAPAYANNI:   No.Did your Honour wish to see it?

HIS HONOUR:   Well, if you tell me that there is such an order I will accept that fact.

MR PAPAYANNI:   I have a copy of the draft orders and orders were made in accordance with that.

HIS HONOUR:   Yes, hand that up.  That is for a period of seven days.

MR PAPAYANNI:   Yes, that was in order to make the application and after that the situation is as stated there.

HIS HONOUR:   It is a matter entirely for you but is that sufficient for your purpose?

MR PAPAYANNI:   Yes.

HIS HONOUR:   That would mean that after the period of seven days, notwithstanding the fact that you have brought the application for special leave with due expedition, that the respondent would not be subject to the restraint from taking or attempting to take samples but would be subject to the undertaking that any such samples would not be used in evidence. 

MR PAPAYANNI:   That is correct.

HIS HONOUR:   So that you are not concerned to prevent the actual physical unconsentual taking of samples?

MR PAPAYANNI:   We are concerned to prevent that, yes, because if your Honour reads that further, that if we succeed in this application, no use will be made of it.

HIS HONOUR:   I thought the essence of the complaint was a complaint about the intrusion into your client's body without his consent.

MR PAPAYANNI:   Well, he is not going to consent in any case.

HIS HONOUR:   I take it that you are content with the orders that the Court of Appeal has made or not?

MR PAPAYANNI:   No, I did not consent to them.

HIS HONOUR:   Mr Papayanni, you know better than I do that courts act on process.

MR PAPAYANNI:   Yes.

HIS HONOUR:   You have to move the Court for orders.  I do not invent them.  The only application as I now understand it that you have before me is an application for expedition.

MR PAPAYANNI:   That is correct, for expedition, yes.

HIS HONOUR:   Which I am perfectly happy to order.  If that is the only process before me, then I will make those orders and then I will leave.

MR PAPAYANNI:   Yes, thank you, your Honour.

HIS HONOUR:   Is there any opposition to the application for expedition?

MS LATHAM:   No, your Honour, we consent to the order.

HIS HONOUR:   I imagine you would join in it.

MS LATHAM:   Yes, we do, your Honour.

HIS HONOUR:   I have spoken to the Registry about this and I understand that there is a possibility that the matter might be listed in Brisbane on 17 April or in Sydney on 1 May, so that the question is which of those dates would be more convenient to the parties?

MR PAPAYANNI:   1 May would be suitable to me, your Honour.

MS LATHAM:   I have no preference either way; 1 May would be quite suitable, your Honour.

HIS HONOUR:   Perhaps all I will do is order expedition and then you can negotiate.  I understand there is a possibility of a slot even earlier than 1 May or that there is another day later in May and it may be that you can simply discuss that with the Registry and find a date that is suitable to you both.  All I will therefore do is order that the hearing of the application for special leave to appeal be expedited and note the orders that have been made by the Court of Appeal.

MR PAPAYANNI:   Costs in the application?

HIS HONOUR:   They are called draft orders but they are orders that have been made, are they?

MR PAPAYANNI:   They are orders that have been made, yes.

MS LATHAM:   Yes, the document headed "Draft" was a document handed up by me to the President of the Court of Appeal and he then made those orders in the course of his judgment.

HIS HONOUR:   I have a dim recollection that I sat in an early stage of the Fernando litigation.

MS LATHAM:   Yes, you did, your Honour, yes.

HIS HONOUR:   And one of the arguments that was being advanced, as I recollect it, related to the affront to the common law of an unconsentual invasion of a body of a human being.

MS LATHAM:   Yes, your Honour.

HIS HONOUR:   I raised the earlier questions because the draft orders, orders 1 and 2, would theoretically permit the unconsentual taking of the sample but prevent the use of the sample, and I understand that that is one course that is available.  The other course would simply be not to take the sample until the order of this Court disposing of the applicant's rights.  I am not asked to make any other order but, no doubt, that will be taken into account in seeking to enforce the extraction of the sample of blood.

MS LATHAM:   Yes, your Honour.  It was framed in those terms in order to avoid setting aside yet another trial date which has been vacated on a number of occasions, but I take on board what your Honour has said.

HIS HONOUR:   If the hearing were held in May or April, does that not lead to the setting aside of the date?  I saw a mention of a date in May, but has that been vacated?

MS LATHAM:   5 May, yes.  It was 5 May.  It still is 5 May.  That is the provisional trial date.

HIS HONOUR:   And I saw another note in an affidavit to the effect that there would be a need for some period of time for the purpose of analysing the blood sample.  But if this Court can dispose of the application for special leave to appeal on 1 May, would that be sufficient time to ensure that the trial date is not vacated?

MS LATHAM:   It may or may not be, your Honour, and that is because the time taken for the analysis of the blood sample varies according to what is found at any given point in the analytical process and it may be that within a very short space of time we are able to determine that nothing can be usefully gleaned from the sample.  So, it is a rather hypothetical position at this stage.

HIS HONOUR:   Yes.  Is that relevant to whether or not a date such as 17 April in Brisbane may be more convenient for the overall administration of justice to avoid yet another vacation of the date of the trial?

MS LATHAM:   I may well be the case, your Honour, yes.

HIS HONOUR:   I will just leave the parties to sought that out with the Registry and, if necessary, they can have access to a Justice if, in fact, they cannot sort it out themselves with the Registry.

MS LATHAM:   Thank you, your Honour.

HIS HONOUR:   No doubt the avoidance of the vacation of the trial date would be a factor that would be taken into account in the Registrar determining the date on which the expedited application for special leave to appeal will be heard. 

MS LATHAM:   Thank you, your Honour.

HIS HONOUR:   But the order that I make is that the hearing of the application for special leave to appeal be expedited.

MR PAPAYANNI:   And costs in the application, your Honour, for special leave?  Costs were awarded against the - - -

HIS HONOUR:   But this is a criminal matter, is it not?

MR PAPAYANNI:   No, it was an application for an injunction, really.

HIS HONOUR:   But there is no application for an injunction.  There is simply an application for expedition of a summons for special leave to appeal in a criminal matter.  I may be wrong, but I understand that the Crown neither asks for nor gives costs.

MR PAPAYANNI:   Well, they got costs before the Court of Appeal.

HIS HONOUR:   But that would have been on an application for an injunction which is of a different character.

MR PAPAYANNI:   Well, it is still in relation to a criminal matter.

HIS HONOUR:   This is simply criminal special leave, is it not?

MR PAPAYANNI:   Yes.

HIS HONOUR:   Have you any comment on the application for costs?

MS LATHAM:   No, I agree with what your Honour has said.

HIS HONOUR:   The application for costs is refused but it is an appropriate matter for counsel to have appeared before the Court in the chamber summons.  The Court will now adjourn.

AT 9.45 AM THE MATTER WAS CONCLUDED