KIEFEL CJ, BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ
HT APPELLANT
AND
THE QUEEN & ANOR RESPONDENTS
HT v The Queen
[2019] HCA 40
Date of Hearing: 10 September 2019 Date of Judgment: 13 November 2019
S123/2019
ORDER
1.Appeal allowed.
2.Set aside the two sets of orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales, when reserving its judgment and when disposing of the appeal, and in lieu thereof order that the Crown appeal be dismissed.
3.The contents of Exhibit C be suppressed until further order of this Court pursuant to section 77RE of the Judiciary Act 1903 (Cth) on the grounds set out in section 77RF(1)(a), being that the order is necessary to prevent prejudice to the proper administration of justice, and section 77RF(1)(c), being that the order is necessary to protect the safety of any person.
On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with G E L Huxley for the appellant (instructed by Maria Walz Legal)
D T Kell SC with E S Jones for the first respondent (instructed by Solicitor for Public Prosecutions (NSW))
N L Sharp SC with T M Glover for the second respondent (instructed by Crown Solicitor's Office (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
HT v The Queen
Criminal practice – Appeal – Crown appeal against sentence – Procedural fairness – Where appellant provided assistance to law enforcement authorities – Where court required by statute to take assistance into account in sentencing – Where evidence of assistance kept confidential from appellant and appellant's legal representatives in sentencing proceedings – Where evidence contained highly sensitive criminal intelligence – Where appellant sought access to confidential evidence on appeal – Where Court of Criminal Appeal denied appellant access to confidential evidence on basis of public interest immunity – Where Court of Criminal Appeal exercised discretion under s 5D(1) of Criminal Appeal Act 1912 (NSW) to re-sentence – Whether appellant denied procedural fairness – Whether Court of Criminal Appeal had power to deny appellant access to the confidential evidence – Whether Court of Criminal Appeal should have declined to exercise discretion to re‑sentence.
Words and phrases – "access to evidence", "assistance to law enforcement authorities", "confidential information", "Crown appeal against sentence", "discount in sentence", "evidence of assistance", "mitigating factor", "non‑disclosure", "open justice", "procedural fairness", "public interest immunity", "residual discretion", "tailored order".
KIEFEL CJ, BELL AND KEANE JJ. The appellant pleaded guilty in the District Court of New South Wales to five counts of obtaining money by deception contrary to s 178BA(1) of the Crimes Act 1900 (NSW) and six counts of dishonestly obtaining a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
HT v The Queen [2019] HCA 40
Case
[2019] HCA 40
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by HT against a decision of the Court of Criminal Appeal of New South Wales. The dispute arose from a Crown appeal against a sentence imposed on HT, where the sentencing court was statutorily required to take into account assistance HT had provided to law enforcement authorities. Crucially, evidence of this assistance was kept confidential from HT and their legal representatives during the sentencing proceedings due to its highly sensitive criminal intelligence nature.
The central legal issues before the High Court were whether HT had been denied procedural fairness, whether the Court of Criminal Appeal possessed the power to deny HT access to the confidential evidence, and whether the Court of Criminal Appeal should have declined to exercise its discretion to re-sentence HT. These issues revolved around the tension between the principles of open justice and procedural fairness on the one hand, and the protection of confidential information and public interest immunity on the other.
The High Court reasoned that the denial of access to the evidence of assistance, which was a critical factor in sentencing, fundamentally undermined procedural fairness. While acknowledging the importance of protecting sensitive information, the Court held that the Court of Criminal Appeal had erred in denying HT access to the evidence. The Court found that the Court of Criminal Appeal should not have exercised its discretion to re-sentence HT in the absence of proper disclosure and an opportunity for HT to respond to the confidential material. Consequently, the High Court allowed the appeal, setting aside the orders of the Court of Criminal Appeal and ordering that the Crown appeal be dismissed. The Court also made orders suppressing the contents of Exhibit C to protect the administration of justice and the safety of individuals.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the two sets of orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales, when reserving its judgment and when disposing of the appeal, and in lieu thereof order that the Crown appeal be dismissed.
3. The contents of Exhibit C be suppressed until further order of this Court pursuant to section 77RE of the Judiciary Act 1903 (Cth) on the grounds set out in section 77RF(1)(a), being that the order is necessary to prevent prejudice to the proper administration of justice, and section 77RF(1)(c), being that the order is necessary to protect the safety of any person.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
KIEFEL CJ, BELL AND KEANE JJ
NETTLE AND EDELMAN JJ
GORDON J
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Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL AND KEANE JJ,
NETTLE AND EDELMAN JJ,
GORDON J