Hili v The Queen; Jones v The Queen

[2010] HCATrans 173

[2010] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S142 of 2010

B e t w e e n -

ANTHONY JOSEPH LUIS HILI

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S143 of 2010

B e t w e e n -

GLYN MORGAN JONES

Applicant

and

THE QUEEN

Respondent

Applications for expedition

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 29 JUNE 2010, AT 9.42 AM

Copyright in the High Court of Australia

__________________

MR J.T. SVEHLA:   Your Honour, I appear for the applicant in both matters with MR R.J. WEBB.  (instructed by Snelgroves)

MR P.W. NEIL, SC:   May it please, your Honour, I appear for the respondent in both matters.  (instructed by Commonwealth Director of Public Prosecutions)

MR SVEHLA:   Your Honour, the summonses and affidavits – and both are, in substance, identical ‑ ‑ ‑

HIS HONOUR:   The summons ‑ ‑ ‑

MR SVEHLA:   Of 16 June.

HIS HONOUR:   Yes, filed 16 June.

MR SVEHLA:   There is an affidavit of my instructing solicitor, Peter John Snelgrove, of 16 June in both.

HIS HONOUR:   Yes.

MR SVEHLA:   There is a further affidavit of Peter John Snelgrove of 25 June in both and there is an affidavit he has sworn yesterday in both which was filed in the Registry this morning.

HIS HONOUR:   Yes, that is dealing with the slip rule application, is it not?

MR SVEHLA:   Yes, to bring to the Court’s attention the letter that was received by the instructing solicitors yesterday from the New South Wales Court of Criminal Appeal.  Both parties have filed an outline of submissions on 25 June, your Honour, which enumerate in some detail the issues.

HIS HONOUR:   Yes.  Can I ask you this?  To what extent are these decisions in the New South Wales courts and Queensland courts on this sentencing question, to what extent are they directed or concerned with the sentencing principles in the Crimes Act (Cth) of Division 2 of Part 1B.  There does not seem to be much attention to the actual statute.

MR SVEHLA:   No, your Honour, that was an issue that was going to be raised on the special leave application.  The sentencing had to be undertaken by reference to Part 1B of the Crimes Act (Cth) and there had to be primacy given to section 16A(1) of that Act and the matters to be taken into account which are fundamental.  Then, in looking at issues such as a recognisance release order one had to have regard to 19AB and 19AC and subsequent sections.

HIS HONOUR:   In the judgment of the New South Wales Court of Criminal Appeal of 14 May – do you have that there?

MR SVEHLA:   Yes. 

HIS HONOUR:   Paragraph 32 is talking about the New South Wales law, is it not?

MR SVEHLA:   Yes.

HIS HONOUR:   Then that authority in paragraph 33 in Bernier and Viana – they are dealing with New South Wales, are they?  Neither of them are federal cases.

MR SVEHLA:   Yes, it was.  It was custom – Commonwealth crimes in relation to importation of drugs, but without regard, I think, to this division.

HIS HONOUR:   Yes, I see.  The Queensland decision in – is it CAK?

MR SVEHLA:   Yes.

HIS HONOUR:   Does that attend to the federal statute?  It is a federal case, is it, obviously?

MR SVEHLA:   Yes, your Honour.  There is reference to it in – if you go to paragraph 36 of the Court of Criminal Appeal’s judgment it refers to it and then it refers to several paragraphs, including at paragraph [15] of CAK to [16], I think, of the Crimes Act (Cth).

HIS HONOUR:   Yes, I see.

MR SVEHLA:   But then it seems to suggest that somehow there is this norm imported into it.

HIS HONOUR:   All right.  Now, this slip rule point can be dealt with fairly quickly, can it, in the New South Wales court?

MR SVEHLA:   One would have thought so, yes.

HIS HONOUR:   There is a suggestion, is there not, by the authority there?

MR SVEHLA:   There is a suggestion by the Crown that it is just a simple error in reasons.

HIS HONOUR:   The Registrar has suggested ‑ ‑ ‑

MR SVEHLA:   The week of 5 July.

HIS HONOUR:   All right.

MR SVEHLA:   We can deal with that obviously in the next few days to sort that out. 

HIS HONOUR:   Now, Mr Neil, I think, correctly says that if you did get special leave the Court would not proceed, or would be unlikely to proceed forthwith to treat it as a hearing of the appeal.

MR SVEHLA:   The reason we have brought the double application on is ‑ ‑ ‑

HIS HONOUR:   I understand that.

MR SVEHLA:   It is purely pragmatic for the purposes of ‑ ‑ ‑

HIS HONOUR:   Yes, I see that.

MR SVEHLA:   It is for no other reason, your Honour.

HIS HONOUR:   I think the application should be expedited, having regard to what you have both said in the written submissions and what you have just told me.  Can you be ready by 30 July?

MR SVEHLA:   Yes.

HIS HONOUR:   Most of the materials have already been assembled I would have thought.

MR SVEHLA:   Yes.  We need to do the outline of argument and one or two other documents but ‑ ‑ ‑

HIS HONOUR:   Yes.  You can both utilise what you have done already, really, this morning.

MR SVEHLA:   Exactly.

HIS HONOUR:   Now, do I need to give any special directions as to timetabling for preparation of books and so on?

MR SVEHLA:   Probably.  Is it possible ‑ ‑ ‑

HIS HONOUR:   They have to be obviously distributed to the Judges who are going to hear the case.

MR SVEHLA:   Yes, so we need to work it backwards, I guess, your Honour.

HIS HONOUR:   Sufficient for them to ‑ ‑ ‑

MR SVEHLA:   Yes, if one works backwards as to when the Justices need the documents by, rather than forwards.

HIS HONOUR:   Yes, all right.

MR NEIL:   Perhaps, your Honour, if we had that time, my friend and I could work it out between ourselves to accommodate – if we knew when the Judges would like the books by.

HIS HONOUR:   Yes.

MR SVEHLA:   If your Honour gives us that, we will work out an order that achieves that.

HIS HONOUR:   Yes.  I will stand it in the list in a minute and you can do that on the spot and then mention it to me again this morning.

MR NEIL:   Thank you, your Honour.

MR SVEHLA:   So would their Honours require the books within how many days of the actual ‑ ‑ ‑

HIS HONOUR:   Let me see.  I think by Thursday, the 22nd.

MR SVEHLA:   If your Honour pleases, and we will work out a timetable that achieves that.

HIS HONOUR:   For filing of the books in proper form.

MR SVEHLA:   Yes.

HIS HONOUR:   So I will stand these two matters in the list and if counsel can work out, working back from that date of the 22nd, and mention it again when you are ready.

MR NEIL:   Would your Honour be kind enough when it is mentioned again to excuse me.  My friend and I can work it out, but I have a hearing in the building elsewhere at 10 o’clock.

HIS HONOUR:   Certainly, yes.

MR NEIL:   I am much obliged to your Honour.

HIS HONOUR:   Yes, thank you, Mr Neil.  I will stand matters 1 and 2 in the list.

AT 9.51 AM THE MATTERS WERE ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.11 AM:

MR SVEHLA:   Your Honour, in the matters, if directions could be made for the applicant in each matter to file and serve a summary of argument and draft notice of appeal by midday on 5 July, and for the respondent in each matter to file and serve its summary of argument by 2.00 pm on 19 July and for the application books to be filed and served by 22 July.

HIS HONOUR:   That is agreed between you?

MR SVEHLA:   Yes, your Honour.

HIS HONOUR:   Very well then.  In each of those matters I give directions in accordance with the proposal indicated by counsel.  The special leave applications will be expedited into the list for hearing in Sydney on 30 July, contingent upon the observance of the earlier orders.

MR SVEHLA:   As your Honour pleases.

HIS HONOUR:   The costs of today’s summonses will be costs of the special leave applications.

MR SVEHLA:   If the Court pleases.

HIS HONOUR:   Yes, thank you, gentlemen.

AT 10.13 AM THE MATTERS WERE ADJOURNED