HT v The Queen
[2019] HCATrans 179
[2019] HCATrans 179
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S123 of 2019
B e t w e e n -
HT
Appellant
and
THE QUEEN
First Respondent
NEW SOUTH WALES COMMISSIONER OF POLICE
Second Respondent
KIEFEL CJ
BELL J
KEANE J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 10 SEPTEMBER 2019, AT 10.01 AM
Copyright in the High Court of Australia
MR T.A. GAME, SC: May it please the Court, I appear for the appellant with MS G.E.L. HUXLEY. (instructed by Maria Walz Legal)
MR D.T. KELL, SC: May it please the Court, I appear for the first respondent with MS E.S. JONES. (instructed by Solicitor for Public Prosecutions (NSW))
MS N.L. SHARP, SC: May it please the Court, I appear with MR T.M. GLOVER for the second respondent. (instructed by Crown Solicitor’s Office (NSW))
KIEFEL CJ: Yes, Mr Game.
MR GAME: If the Court pleases. The Court should have our outline.
KIEFEL CJ: Mr Game, have you had access to the confidential material?
MR GAME: Yes, late last week, but I do need to say something about that which is this - and it does present some difficulty with the presentation of the argument. We have read it but we have given an undertaking which prevents us from communicating about it with the appellant and it prevents us from disclosing to anybody anything about what we have read in it, which includes this Court.
I understand that the second respondent’s position is that I can say no more about the association, the nature of the association, with the person of interest – that is how I will describe them – than that and yet there are very real issues on this appeal about what occurred and whether or not, if you look at my outline, to make explicit that which is perhaps a belief, on the top of page 2 – those two sentences on the top of page 2 at paragraph 7, particularly the second, but both the first and the second - those are things that have to be explored because our opponents are putting an argument that is to the converse, that, in fact, the presence of those people in the appeal meant that she was – how can I say it – [REDACTED]
So I will do my best, but it is very difficult indeed for me to present – your Honours, of course, are not bound by any undertakings, so I have to answer your questions obviously.
EDELMAN J: But it is only relevant, is it not, in relation to the 5D residual discretion because there is no point, as I understand it, that is taken against you on procedural fairness?
MR GAME: They are saying procedural fairness was observed. Both respondents are saying procedural fairness was observed.
EDELMAN J: But there is no point that is taken against you on the basis that, effectively, there would be a lack of materiality?
MR GAME: Yes, I think that is taken against us as well. So both respondents are putting everything in issue. But I will do my best ‑ ‑ ‑
KIEFEL CJ: Speaking for myself, Mr Game, I have a little difficulty following why you would need to refer in any detail to the confidential material. The issue is really one which is anterior to the discussion about what it means in terms of sentencing.
MR GAME: Hopefully, your Honour, but it is said that this circumstance was one that demanded this outcome. We say that this material demonstrates anything but that, that this material demonstrates a deeper problem in the administration of justice but should not have been allowed to happen. The appellant in the past ‑ ‑ ‑
KIEFEL CJ: Well, the lack of access to the material ‑ ‑ ‑
MR GAME: No, the lack of access ‑ ‑ ‑
KIEFEL CJ: ‑ ‑ ‑ should not have happened. That is your argument.
MR GAME: Yes, but it is also the [REDACTED] about the whole thing.
GORDON J: But is that not two questions?
MR GAME: It is two questions, yes.
GORDON J: So there are procedural fairness questions. There are questions that then arise as to how you deal with that question, i.e., how do you address the requirement of procedural fairness?
MR GAME: Yes.
GORDON J: At the moment, your submissions, as I understand it, are in the negative, i.e., no power to do what was done.
MR GAME: That is right.
GORDON J: But there is a second question too, is there not, which is how do you provide it if you are right on the first?
MR GAME: Yes, your Honour.
GORDON J: Do we need any discussion of the confidential material to address any of those three issues, that is, the content of it rather than the fact?
MR GAME: Well, it seems so because what is being put against us, and we say we have a complete answer to, but what is being put against us is the very unusual circumstances in which this arose. Our answer to that is those very unusual circumstances were all wrong and should not have been allowed to arise in the first place.
KIEFEL CJ: Yes, but that is not to have regard to the material to make that point?
MR GAME: Well, I have to. If you take the second sentence on page 2, the argument that is put against us on natural justice ‑ ‑ ‑
KIEFEL CJ: That follows in your argument because of the content.
MR GAME: Exactly, exactly but what is put against – so, what was Mr Dhanji to do, so to speak. He is standing there saying one thing and according to the respondent what he is saying is directly contrary to the actual reality of the situation. That is what the respondent – both respondents’ arguments amount to.
GORDON J: But, again, that submission could be made without reference to the content because that is just the fact.
MR GAME: Hopefully, yes, but, your Honour – I am not trying to buy a fight for no reason but if I could just say this, your Honour, the second sentence on page – I will do my best but the second sentence on page 7 ‑ ‑ ‑
KIEFEL CJ: Paragraph 7.
MR GAME: In paragraph 7, your Honour, take out the word “un” in the second line ‑ ‑ ‑
KIEFEL CJ: Is what you say is put against you.
MR GAME: Their argument is that they were, they were. We say we can demonstrate that ‑ ‑ ‑
KIEFEL CJ: If there is going to be a difficulty it would arise by way of reply - at the point of reply.
MR GAME: It could do, yes, your Honour.
KIEFEL CJ: So, shall we revisit it if there is a true difficulty by then and you might assess the situation.
MR GAME: Certainly, your Honour. It is better that I just press on and one sees if – so, what ‑ I obviously do not want to be breaking any undertakings and so forth but one other thing I should just mention is the appellant is in Court and our undertaking extends to communicating with her about these things. So it does mean – she is on bail – because the Bail Act (NSW) has a special provision about cases after special leave is granted where you can go back to the Court of Criminal Appeal to avoid bail applications in this Court.
KIEFEL CJ: I see.
MR GAME: So the Court of Criminal Appeal presided over by the Chief Justice granted bail in this case after special leave was granted. So that is all. But, as I said, the nature of that undertaking means ‑ and, anyway, section 73 of the Constitution would mean that we could not sort of go into a factual issue about the confidential appeal book anyway but we do not have any instructions on the accuracy of the material in the confidential appeal book.
Have your Honours had a chance to read our outline or shall I just pause for a minute? Or should I press on?
KIEFEL CJ: Press on. I think we can pick it up.
MR GAME: Thank you. Again, I am going to speak – in effect, use those as speaking notes, but if your Honours look at paragraph 2, I wanted to take you, firstly, to the statutory provisions that apply and they are in the joint authorities book – the joint authorities book is volume 1. If you look at page 9, behind tab 3. A mandatory consideration is ‑ ‑ ‑
EDELMAN J: Which authority is this?
MR GAME: Joint book of authorities, volume 1, tab 3. That is the statutory provisions, the sentencing provisions, and it is just to take your Honours to section 21A(3)(m). So a mandatory consideration is set out in (m). Then if you go to the next tab, tab 4, is section 23, which is the operative provision.
Now, if one runs through section 23 it is a mandatory provision, because it says, “must consider the following matters”. And so, again, I will just take your Honours – this does not come to the power question but this is just by way of explaining the relevance and what the material would show. (2)(b) would be engaged, and nothing was or could be said about it by counsel. (2)(c) was engaged but only to the extent of something said about the truthfulness of the material. Nothing said about the value of the assistance, contrary to the first respondent’s submissions at paragraph 34.
Paragraph (2)(d) would have to have been addressed; paragraph (2)(e), probably not (f) and (g). Paragraph (2)(h) was a real consideration in this case. Paragraph (2)(i) was relevant but not a major consideration. Paragraph(2)(h) obviously was of considerable significance if one looks at exhibit C and the further material.
Subsection (3) – and I have in mind CMB here, and the sentencing judge did refer to this provision – is always going to be a consideration in a manifest inadequacy case because CMB says that both the sentencing judge has to ask themselves whether or not the sentence is unreasonably disproportionate and so does the Court of Criminal Appeal.
But it is not a limitation. CMB stands for the proposition that, in determining unreasonable disproportion, one has regard to the nature of the assistance. So subsection (4) was never addressed by either court. It was clear that there was material that would fit within that description. In fact, the Court of Criminal Appeal appeared to take something of that kind into account. So (4) is mandatory as well. It means that if there is material that is of an ongoing or future nature one has to actually allow for it in the sentence.
So if one imagines Mr Dhanji’s position on the appeal, armed with – and he made this point explicitly – armed with section 23 and the material, he would have done the exercise, as I have just done now, but by specific reference to the material and the confidential exhibit and neither the Court of Criminal Appeal nor the sentencing judge did any of this, and these are mandatory provisions.
So what one can see immediately is that it is not as if the absence of material means that the court said, you will just have to trust us, because one requires the specificity of it to draw the things out about the provision and in a sentencing exercise one could never get away from these mandatory considerations, so one has to find a way of both allowing the thing to be ventilated and addressing all of these things.
It is difficult to see even the kind of things that occurred in a recent case of this Court in ‑ I forget if it was A or X ‑ but where a special counsel or an independent counsel was giving advice because how are they going to focus on these things, but it is conceivable.
EDELMAN J: Well, you say it is an issue in this Court as well.
MR GAME: Yes, your Honour, absolutely. The other thing is, it is said to us ‑ it is said that, well, these are things for your benefit, but none of that runs when you are actually looking at the totality of the thing. It is as if you could only have considerations considered if they were against you and it does not make sense, when one is looking at the totality of the sentence, and the question of manifest inadequacy, which always has to be determined in these appeals.
GORDON J: Your argument is it is against you, and the description of it as a benefit you say is a misdescription.
MR GAME: Of course it is – absolutely, yes. Sorry, that is exactly my point, is it is against us; that is exactly right. There is no point in calling it a benefit. So the only thing is, there is this – and I call it a threat – but this class claim says, well, you will not get this material at all if you do not go along with us, and that is a threat and that is how this thing was upheld. But I need to say, this is for the benefit of the authorities as well. The section, such as subsection (4), was specifically placed in provisions like this, so the authorities could know what the future held, so they could bring somebody back before it, if they did not do what they said they would do.
The other thing is, as soon as you look at this, the material, and you look at these provisions, one is thinking about what occurred in this case in a very different light than it was presented, either by the sentencing judge or by the Court of Criminal Appeal. And that is not a question of, sort of, wild imaginings of defence counsel, these are just realities of the world and the kind of circumstances that pertained in this case; hence, shall I say, the very circumspect way in which this entire appeal is being presented.
To say the least, concerns expressed by the authorities are real, and they continue to be real in – so that is all I wanted to say about that. Then I wanted to just take your Honours briefly to some passages in the core appeal book. Now, so it is again, this is kind of defensive, but it is suggested to us that there was some kind of a choice. But one looks at the top of page 29 of the core appeal book, what counsel is saying there is that he has been given a choice and he has taken the one that meant the court could see the material.
In practical terms, that is not a choice. What would the other documents say? Now, I need to say this also. This is a common practice. What is said at the top of page 29 happens every day in courts in New South Wales. So you are told you will get it if you do not see it and you will not get it if you do.
BELL J: How long has that practice ‑ ‑ ‑
MR GAME: I do not know, your Honour, but I have been told it is a common practice.
GORDON J: Is that in all courts?
MR GAME: Trial courts.
GORDON J: All trial courts.
MR GAME: Yes, your Honour.
GORDON J: Including the Supreme Court?
MR GAME: I do not think it happens in the Supreme Court.
KIEFEL CJ: What does happen in the Supreme Court?
MR GAME: I will find out but my inquiries are that this is a common practice. That will be District Court and Local Court.
KIEFEL CJ: In civil actions, say, involving trade secrets or whatever, there would simply be directions given to ensure the confidentiality of the material?
MR GAME: That is correct, your Honour. This is purely in the sentencing context in – but confidentiality – but, as I say, what would that document say, the other document, and how would one address section 23 fairly if one did not have the full – so that is that passage. There is just another passage in respect of what happened in the District Court. If your Honours could note at the bottom of page 42, line 45, the quote that begins:
HIS HONOUR: Yes –
So that engages section 23(4) and then in the reasons at page 70 of the District Court judge, his Honour at line 10 did address himself to section 23(3) and we say the Court of Criminal Appeal did not but he said:
[REDACTED]
and we say that is a misreading of the authorities. I think he actually refers to an authority that is not consistent with CMB which I will have my juniors turn up. But it should also be noted ‑ ‑ ‑
BELL J: Mr Game, just before you move from page 70, is there any controversy about his Honour’s conclusion at lines 29 and 30?
MR GAME: Well, we believe that the material, both before him, and the material before the Court of Criminal Appeal, [REDACTED]. There is, in fact, material of further things being done after sentence. I just took you to what was said – the Crown had said - there was a controversy because the Crown said there is – the passage I just took you to the Crown had said it is all past and the judge responded to it in this way and then he has put it in his reasons.
What is missing here – my exercise is not to discredit the judges’ reasons particularly, but what is happening here does not involve a proper consideration in any way of section 23.
BELL J: If you are right in relation to that factual issue, it rather drives home the point you make about the utility of counsel being able to make submissions.
MR GAME: Yes, of course. There is nothing that they can say and she is sitting there helpless. She is not represented in that context and we do not know what the – I mean, one speaks of having a sine qua non but one looks at material on pages 35 to 36 of the confidential appeal book and one can think of innumerous questions – I will come to it in a minute but I might ask about it.
The point about line 30 is this: that engages section 23(4) and an obligation on the court to be explicit about it, so none of the things that need to be there are there. The absence does not bespeak compliance; the absence bespeaks nobody had a voice about it and therefore it was not brought to light and there was no independent counsel saying, “Hang on, you need to go through these things in section 23,” and certainly the Crown was not saying that.
GORDON J: So if you rolled that up, is there any – I do not mean to say any more, but is that in substance to say that there was a lack of procedural fairness consistent with all of the initial elements that are identified?
MR GAME: Yes, your Honour, but then we say of course the same thing happens in the Court of Criminal Appeal but Mr Dhanji gets on the air about it and is clear in making his position very plain, that there was a major problem with what was happening.
EDELMAN J: The same thing could happen in this Court as well.
MR GAME: Yes, exactly.
EDELMAN J: That is the problem we are immediately confronted with.
MR GAME: Yes. Can I just say I know this sounds cute, but if you have a look at our hand up at page 2, line 20, armed with this material one would not hesitate to take that course – that is to say the case might not even run because of the troubles that the whole of this material causes.
EDELMAN J: That would be the first submission that would be made before the criminal appeal hearing.
MR GAME: That is right, that is the very first thing. And imagine if Mr Dhanji had realised what the problem was. [REDACTED]
If we come then to the Court of Criminal Appeal briefly, in the same book, if I just take your Honours in the core book to page 90 – again I can do this in a fairly summary way and the material is fairly shortly – 90, line 45 to 91, line 5 – sorry. I should have said, [REDACTED]. So at the bottom of page 90, line 45, to the top of 91, line 5, he is saying it does not just go to discretion, at that point he is saying it goes to the question of error and he draws that out on page 91, lines 15 to 25.
Then at page 92, Mr Singleton, at line 12, says something – and again, it is noteworthy that he is not saying it just in the context of this case, he is saying it as a general proposition:
A person coming up for . . . needs to elect –
And then, that is a threat, what is being said there, and that is the class claim that is upheld by the court, the class claim is, you will not get this if you do not go along with what we say.
KIEFEL CJ: Mr Game, how do you say the scenario at sentencing should play out?
MR GAME: The scenario at sentencing should – well, the scenario at sentencing should play out in the sense that – sorry, the other thing is, one needs to understand that what one reads from the confidential book is that the appellant at sentence is in a cleft stick because [REDACTED]
BELL J: Page 35, did you say?
MR GAME: Yes. So, annexure B, that is post‑plea, pre‑sentence, and it appears to be a bundle of extracts. And one can see from that, lines 21 to 25, that the police are controlling the relationship. It is not clear that she is a willing participant. They interfere with the relationship, including what should be said and done by her in that relationship and she is never told to make other arrangements. So she is locked into that situation because if she makes other arrangements then there is a problem for her.
NETTLE J: Or it just makes the question harder, how does one deal with it at first instance?
MR GAME: Well, I took you to that to say none of that should have happened in that – none of that should have happened. But if this happens at first instance, then basically, the court – so there is another problem here, your Honour, which is this. The court might not have fully appreciated the problem from exhibit C, because they would have just got a flavour of it from exhibit C. They would have seen reference to that person.
KIEFEL CJ: Well, we understand your point that the court needed submissions on it.
MR GAME: Yes.
KIEFEL CJ: In terms of the procedures that should have been undertaken to accord procedural fairness at sentencing, what do you say? Should the sentencing judge have received the material, [REDACTED]
MR GAME: That is a possibility, your Honour, but [REDACTED]. So, there is an issue there.
KIEFEL CJ: Yes. [REDACTED]
MR GAME: [REDACTED]
KIEFEL CJ: Yes, that is true, but not now.
MR GAME: [REDACTED]
KIEFEL CJ: Yes.
BELL J: But at least if that mechanism were adopted it would have exposed a difficulty, a difficulty which, as I understand the submissions that you have developed this morning which, in a sense, are outside your appeal based on the fact that you have now seen exhibit C, raises an issue along the lines of is it [REDACTED], the decision of the Court last year. But at least that would have been flushed out and then consideration might have been given by counsel as to how to deal with it.
MR GAME: Yes, so there are a couple of possibilities. One is a chambers conference with prosecutor and defence counsel but the judge had to find a way ‑ the judge had to find a way of not allowing this situation to continue. The appointment of an amicus by the judge is a possibility because then the amicus could have looked at the material and said, look, this situation cannot continue because you do not know what you know. So an amicus – there are ways in which the situation could be exposed.
KIEFEL CJ: They may be different in each circumstance.
MR GAME: Quite, your Honour.
KIEFEL CJ: It is not going to be a “one size fits all” solution. The court would have to engage, as it often has to in terms of highly confidential information in difference spheres, and tailor some procedures around it. Is that the sort of thing you are talking about?
MR GAME: Yes, exactly. There are ways of dealing with it but only by being – what I am trying to say is only by being formalistic about this thing will you actually find a lawful and appropriate way through it.
GORDON J: Is your submission about that in terms of what you describe as formalistic, in a sense, taking the relevant act and identifying what the obligations are which inform procedural fairness requirements and then saying, picking up the Chief Justice’s question, what are the procedures that I can create to meet those formal requirements. Is that what you mean by formalistic?
MR GAME: Exactly, yes. So you sit there with the statute – “I have to do this and you are not letting me exercise my jurisdiction”.
EDELMAN J: Are the permissible procedures anything at all that the court could come up with provided that it does not cross the line to prevent counsel from making submissions on instructions? That is really the point of procedural fairness that is beyond the line.
MR GAME: Yes. So, I should mention, and your Honours would appreciate, that in terrorist cases in the UK in closed material provisions there are statutory provisions that create sets of circumstance – that provide circumstances that ensure in one way or another procedural fairness can be observed.
GORDON J: But they happen in Australia as well, do they not?
MR GAME: They do now, yes.
GORDON J: I mean they are security cleared for terrorist offences here. They are security cleared in some of the States for some of the State arrangements.
MR GAME: So, right now in New South Wales in these high risk cases there is a statutory provision and a panel of accredited barristers is being created for the purposes of doing an exercise.
GORDON J: So, can I just test your proposition in answer to Justice Edelman’s question that it is anything that does not cut across counsel making submissions on instructions. Those arrangements do not extend that far.
MR GAME: No, that is true. So anything that does not cut across the ability of the offender to have her case fairly put might be a better way of putting it, yes.
GORDON J: That is a better way of putting it, is it not?
MR GAME: Yes.
EDELMAN J: Sorry, are you then accepting that the UK‑type position could be played out here without specific statutory authorisation?
MR GAME: No. I am saying you need a statute to do it.
NETTLE J: So what do you do in the absence of a statute? I understand the problem. What is the solution?
MR GAME: The solution is – and again there are vagaries about this – that the judge has to force everybody’s hand on this and say “I’m not going along with this exercise; [REDACTED] or appoint an amicus so the problem can be exposed”.
GORDON J: Is that right? If your proposition is cut across the ability of plaintiff’s counsel or the accused’s counsel to put his or her case fairly then is it not possible that within the current framework, that is, either inherent or implied jurisdiction or even the suppression orders - put that to one side for the moment – it is possible for the court to do, in a sense, what they do now in relation to the high‑risk offences, i.e., material is given, it is given to counsel on condition subject to undertaking non‑disclosure to their clients so long as they themselves can put the case fairly?
MR GAME: Yes, your Honour, but there is a problem, which is this: that counsel sees the material in this particular case.
GORDON J: This case?
MR GAME: You say the counsel sees the material in this case and then counsel says, “Well, this cannot be allowed to continue”.
GORDON J: But that, in a sense, exposes the next question.
MR GAME: Yes, of course.
GORDON J: But at least at first blush it sets up this ability to test can counsel put the case fairly.
MR GAME: Yes, your Honour, but part of our argument is that – I hope I am right - not answering your Honour – but we say that you -in order to be enabled to do ‑ these are kind of ad hoc solutions. If one wants to go the way that the Crown is putting in terms of the procedures you would need a statutory provision to enable the circumstance in which an accused person is deprived of seeing material in her case.
EDELMAN J: The problem is the known unknowns, is it not, because you may have circumstances where the court, the counsel, everyone seems to think it could all fairly be done without instructions from the accused person but until you get those instructions you do not know whether or not that is right.
MR GAME: Absolutely. As I said almost at the very beginning, we have no idea if the nature of the association is quite the way it is presented in the confidential book and that bit I took you to on page 35 – they are just extracts. So imagine one was testing this in court. The first thought is we are not allowed to talk to her but how is this situation allowed to continue in the Court of Criminal Appeal? That is five months later and 10 months later than these meetings are taking place. I am not sure whether I have left unanswered questions, but anyway, I will just press on and if I have then please do not hesitate to fire them at me again.
As I said, on page 92 – what is being said at 92, line 25 by counsel for the second respondent is, if Mr Dhanji does that, if he really exercised his right and, just as was done below, as it were, the evidence would change on the appeal.
So then I just wanted to refer you to a couple of other passages in this report coming to the Court of Criminal Appeal. At the bottom of 96 is Mr Singleton calling it a [REDACTED]. At the top of 97 Mr Dhanji saying – he is drawing out what he would do, as it were, if he knew. So he is doing a kind of imaginary exercise. It is worth noting at 97 one of the judges said, but this is for your benefit. And, as I said, that is kind of a logical flaw in this. Then, at page 98, Mr Dhanji says:
[REDACTED]
and he then raises the discretion. That is at line 37. So he has raised natural justice, error, resentencing and discretion. So he has, in those passages I have taken you to, raised all of those issues. And the court adjourns and then at page 99, line 26, that is in effect its judgment and there is an order actually at appeal book, at page 125. The last thing here, in this passage, if one turns then to page 111.
NETTLE J: Just before you go on, you say it follows from that ruling at 99 that the only proper exercise of discretion under 5D was that the appeal be dismissed?
MR GAME: Yes. So that then becomes an antecedent thing to what happens with Mr Dhanji’s submission about discretion.
NETTLE J: You accept the ruling on public interest immunity ‑ ‑ ‑
MR GAME: That is right.
NETTLE J: ‑ ‑ ‑ but you say it follows any…..the appeal cannot go ahead?
MR GAME: Yes. And he says that at a later passage which I will come to in one moment. Your Honours, if you go to 111, line 35, after Mr Dhanji makes his points, the Chief Judge says:
[REDACTED]
But Mr Dhanji says:
[REDACTED]
and it is. And, then, at 112, Mr Dhanji makes the point that your Honour Justice Nettle put to me, which is:
[REDACTED]
So he has clearly framed that problem. So, then, if I move then to the judgment, and I will just take your Honours to a couple of passages in the judgment.
So, in the judgment, which is in the confidential appeal book, the passages I wanted to go to are these. If you go to page 75, paragraph 115, one sees that it is all about the nature of the offending. And then 116 right through to 120, we have no consideration of the section 23(3) question, and no consideration of the 23 factors in asking oneself about error, which was the first of – not the first, it was the second, in effect, of Mr Dhanji’s submissions.
So then when one gets to 121, at that point it is all about – so 120, error has been found and then it is all about discretion. And then the discretion point is dismissed, because of the second sentence in 121. So that, again, points up the very problem that arises.
NETTLE J: Sorry, what is wrong with the second sentence? If they have found error and resentence, what is wrong with them then redetermining the appropriate discount?
MR GAME: Well, none, except for the fact that they do not have any submissions from counsel about it.
NETTLE J: No, I understood that.
MR GAME: And nothing has been ‑ ‑ ‑
NETTLE J: It is just that point?
MR GAME: Yes, your Honour. There are two points here. The antecedent point is that they had to take it into account on the question of error, which they did not. The second is once they do find error, they would need to address themselves to the considerations in section 23. And how can they do that, if they do not have a case being put to them about it?
BELL J: No contention could be made before them that 23(4) was engaged because counsel could not know.
MR GAME: Yes.
BELL J: So if it be right, there was an error in that respect, it was necessarily perpetuated.
MR GAME: Yes. And they have not taken the step of the – not just manifest inadequacy, but the section 23(3) question about unreasonable disproportion – because they will always be obliged to do that step, as well as manifest excess, in an assistance case. So they have not been able to do any of those steps.
BELL J: Yes.
MR GAME: Because nobody has been telling them, except for Mr Dhanji in hypothetically ‑ ‑ ‑
EDELMAN J: Or some of the factors in 23(2)(h).
MR GAME: Yes, and the factors I listed that seemed to be relevant. But my point is actually, it is not just some of the factors. You have to say, look, I think that subsection (k) is made out, and the risks or so are high. Or, this usefulness is very high. So you actually have to – it is a provision that is asking you to articulate what you are thinking about the individual subsections.
So then at 128, we say again is, for the point of demonstrating what lies behind the denial of procedural fairness. But when one gets to 128, none of the steps have been done but how also could it be said – it is the same point as I made before – how could it be said that the exercise has been carried through, when there is no assistance from counsel and no consideration of the things?
One of the ironies of this whole case is that if the respondents’ argument is right, then apart from something that I will point to in a minute in the confidential book, the court could not even disclose that it was giving a discount. So, what would they do, would they bury it in a lighter sentence? So, you actually cannot have this situation. On the respondents’ case you actually cannot do the section 23 exercise because as soon as you give the thing the game is over.
So, and then just lastly ‑ and this is just a small point ‑ but if one looks at page 80, 131, those numbers are almost the same as the numbers that the sentencing judge came and how could it be that you get to that discount with those numbers and the identical numbers pretty much from before? So, that is what I wanted to say about that.
NETTLE J: Was it not all about accumulation in the argument ‑ ‑ ‑
MR GAME: It is all about accumulation, yes, your Honour, I accept that. But what I am saying is the problem with this is it is not occurring at the discount point, it is occurring at the accumulation point in terms of the outcome. What I am saying is the whole exercise of re‑exercising the discretion on assistance is not really producing any change.
GORDON J: So, there is the position that the errors are in terms of procedural fairness questions, identified by looking at these passages because there is no consideration of 23(3) and (4) as a matter of analysis.
MR GAME: That is right.
GORDON J: That is the first. The second is, in a sense, it establishes that there were not only no ability from counsel to put submissions but, in effect, one of the reasons why maybe not they had been, in effect, at the forefront of the court’s mind is because there is no submissions made about it. So, it is an inability giving rise to the issue and then the same issue arises on the discretion question as well, as a separate error.
MR GAME: Yes, your Honour, but on the appeal there is an overall problem which picks up all of those steps which is that Mr Dhanji is trying to, I say, shift, he is trying to shift the attention of the appeal to a consideration or a bringing to account of the assistance and yet he has cut out of that whole thing which really, sort of, lies at the heart of the case he wants to put at those various steps. So, he is kind of cut out of presenting the thing he wants the court to consider on each of those steps.
GORDON J: Are we to make anything of the fact that it is a Crown appeal?
MR GAME: Do I? Yes, your Honour, because the Crown brings appeals for various special reasons.
GORDON J: That is why I asked.
MR GAME: Yes, we do. That is ‑ part of his point is why would you take this case – also, when this case is utterly private, it is not going to be a precedent for anything to anybody. It is never going to be this case sitting in any law reports or – well, maybe now but that is…..This is not an example for sentencing purposes.
GORDON J: So, is that another basis, in a sense, for our reference to those considerations where Mr Dhanji was prohibited or prevented from making submissions on those considerations?
MR GAME: Yes, your Honour, that is a big part of it, is because he is cut out of making the submissions, that is a reason why the court should not engage with the exercise and that is the point he is making and that point is not addressed.
EDELMAN J: That point applies here as well, in part. I mean, you can make those submissions in part but you cannot make them completely.
MR GAME: No. I am not complaining about section 73 of the Constitution, but section 73 of the Constitution means that this is all a set play, in a sense. We cannot come along with an affidavit and we cannot come along and cross‑examine ‑ ‑ ‑
EDELMAN J: The point I am making to you is not necessarily against ‑ ‑ ‑
MR GAME: We were saying about the ‑ ‑ ‑
EDELMAN J: It is not necessarily against you.
MR GAME: Yes.
EDELMAN J: It is that your – the difficulty that you are referring to is also a lesser, but still present, difficulty that you face in this Court ‑ ‑ ‑
MR GAME: Yes. That is right, yes.
EDELMAN J: ‑ ‑ ‑ which makes the 5D issue just as live for the same reasons in this Court as it was in the Court of Criminal Appeal.
MR GAME: Yes, that is correct.
NETTLE J: This would mean that if everyone took the deal at first instance, they could then on appeal say, there could be no Crown appeal.
MR GAME: No, your Honour, but that is all – there is no possibility for foresight of that kind because there was no choice of – she has ‑ ‑ ‑
NETTLE J: I appreciate the situation here. I am looking to broader fields.
MR GAME: I see.
NETTLE J: You offer no solution at first instance, of which I am not critical, because it is difficult, but the fact remains that it appears a full account of information will not be put forward to the judge who hears the plea, unless there is such a deal. And then yet, if the Crown wishes to appeal against the sentence, perhaps in a most telling case, it will be met with the answer, well, nothing can be done about it. The 5D discretion must be exercised to dismiss the appeal.
MR GAME: Yes, but that is actually the – that argument is put ‑ the reverse of that is put against us on the Crown appeal. They say, you took the deal, now you are kind of trying to go behind it. But my point is, that deal was no deal at all because what would the – what else choice could you make? But secondly, that deal should never have been on the – such a proposition should never be put, and after this Court has – this Court should say in its judgment that those things – that should never happen.
EDELMAN J: In any event, would not one possible answer to this conundrum be, if that situation were able to be played out at a sentencing hearing, then when one comes to an appeal, the Crown has to choose. Either they come up with a regime that will allow procedural fairness, or they accept the residual discretion.
MR GAME: Yes. That actually is a better ‑ sorry, that is a better answer perhaps than the one I gave to Justice Nettle.
BELL J: Whilst your strong point here is the circumstance that the point was taken in the Court of Criminal Appeal and that is the subject of your second ground, but there is, on the case you make, a problem at first instance with the adoption of a procedure of this kind.
MR GAME: Yes, your Honour. So the only reason we can – I say duck. Well, the only reason we can duck the real conundrum that occurs at first instance is that this then ended up on appeal.
KIEFEL CJ: Well, I am not sure you can duck it.
MR GAME: We can try – sorry, I will have to withdraw that. Try, attempt.
KIEFEL CJ: Because consistently with what you are saying, this should not only have not happened at appeal level, it should not have happened at sentencing.
MR GAME: That is exactly right.
KIEFEL CJ: The sentencing judge, on your argument, should not have allowed this process to occur.
MR GAME: Yes.
KIEFEL CJ: That leaves the question, what process should have occurred? So that the position as it came up, potentially or not for appeal, may or may not have happened.
MR GAME: Yes. A way had to be found that the thing was done in a transparent way, so that the then offender and now appellant was put in a position so that she could give instructions on the subject of assistance and the subject that was before the court, and that the nature and extent of that subject was properly disclosed and capable of being scrutinised. If you do not have those minimum criteria, then section 23 cannot lawfully be complied with by the court.
GORDON J: I thought that you had accepted that that went too far and I thought you accepted that it was - rather than instructions it enabled their case to be put fairly and that in some circumstances they may not need instructions.
MR GAME: Sorry, yes, can I rephrase it? Her account is fairly – one may need to have it on instructions but when I made the concession to your Honour, what I was trying to say is that the ‑ ‑ ‑
GORDON J: It is not a concession, I am just trying to work out what the ‑ ‑ ‑
MR GAME: What I was trying to get to was that her – what she has to say about the subject is capable of being exposed in one way or another before the court. That is the procedure that has to be found.
BELL J: But it might be that there are cases in which it would be in the interests of justice that material be placed before the court but the nature of the material properly should not be made known to the offender and I had understood that you had accepted that mechanisms such as the appointment of an amicus or an undertaking by counsel might in exceptional cases be appropriate.
MR GAME: I think the answer to that question is going to depend on circumstances because it may be that you are going to have to find a way of getting not just to the evaluative aspect but as to the actual facts and circumstances underlying it. So, the answer to that question is perhaps a little nuanced.
EDELMAN J: It would not depend necessarily on circumstances. The starting point would have to be a construction of the statute, would it not, whether the statute contemplated that you could ever have a procedure where an adjudication was made about the rights of an individual without that individual knowing the basis upon which the adjudication was being made, or all of the bases?
MR GAME: Well, I accept that, too, but actually the foundation of my argument is what does section 23 demand and perhaps ‑ ‑ ‑
KIEFEL CJ: You are saying - I understand that you have two main limbs to your submissions. One is that the court cannot effectively exercise its jurisdiction under section 23 if it is hamstrung about obtaining submissions from parties and the other is procedural fairness so far as it affects the parties.
MR GAME: Yes, so it actually becomes a failure to exercise the jurisdiction if you talk about it in jurisdictional terms because section 23 ‑ ‑ ‑
KIEFEL CJ: But is that what you are saying?
MR GAME: Yes. I suppose what I am trying to do is to say yes to every question that is asked of me but I am trying to be flexible about what the outcome – how you would go about it in any individual case.
BELL J: Was any order made that the Evidence Act applied to the sentencing proceedings?
MR GAME: No, your Honour, but if there was a dispute normally some – if there is evidence of a dispute at issue, normally someone says I ask that provisions of the Evidence Act apply, (a) and (b). There is some controversy about this but the preferable view, in my submission, is that if the Evidence Act does not apply that does not mean that no rules apply. It means that the common law applies. That is another question ‑ ‑ ‑
BELL J: I was not suggesting that it did not but my point was simply no such order was made.
MR GAME: That is right. Section 4 of the Evidence Act is the provision that deals with this. If I go back to my written document – I will just say one thing. Section 14 of the Criminal Appeal Act refers to the right to be present in an appeal. Section 14A is just about I think saying there is jurisdiction to resentence if the respondent happens not to turn up. But it is not about them not being present. What I am saying is that she has a right to be present in the appeal and making such orders is the effect of shutting her out from that part of the appeal.
Now, then, I have made the submissions in paragraph 9 and perhaps I have made them more than once. What we say briefly about power again is in our written submissions, but I just say – it says paragraph 10 and following. We say that whatever be the situation earlier, by the time one got to the Court of Criminal Appeal the question was not one of public interest immunity; the question was one of making orders in relation to the ability to see evidence that was tendered and admitted in the proceedings.
Cases like Pompano are quite different because they are there about facilitating use, not restricting access. One can test this in a way by saying if one did the so‑called balancing exercise in Alister one would be weighing the same interest on both sides, her interest in not having the thing disclosed and her interest in knowing about it. The thing would be the two things that were being weighed against each other. So as soon as you ask yourself how will I exercise this discretion it becomes clear that it is incoherent to be talking about it in the language of public interest immunity.
Now, I should say also this, that there is a passage in the speech, in a case that I cannot pronounce, called Al Rawi – it was Lord Dyson’s speech – where he says this is the antithesis of public interest immunity. But the point about it is in public interest immunity there is a procedure to ensure there is a fair trial. This is working in the reverse and against one and that is why, if you play this thing through, one ends up with the conclusion if you are not going to get access to it then the question of the appeal being dismissed in discretion is the kind of fair trial equivalent of that.
So that is what we say about public interest immunity. I do not want to say any more about it than is in our submissions and what I have said just now. The other thing that is put against us is the Court Suppression Act, but again we say you would need quite specific words there and we cite K‑Generation amongst other cases. But the thing is this. The court suppression and non‑publication order is all about external publication. It has provisions that mandate that the media are allowed to come along and argue about the thing, and interim orders. So it is not about publication to one of the parties. It is a piece of legislation. Nor was it engaged. So we say that does not…..
One of the arguments that is put against us, and I have not explicitly referred to it here, there was some mention of section 130 of the Evidence Act which, for reasons we have given does not work because that is about admission of evidence which has already been – here it has already been admitted.
One of the things that is said against us is that section 12 of the Criminal Appeal Act picks up section 23 of the Supreme Court Act but section 12 is just procedural and section 23 of the Supreme Court Act expands jurisdiction and justiciability and if you started picking and choosing from the Supreme Court Act – and it speaks about appeals as well, so you pick up the rehearing power, you pick up the ability to give civil writs under section 69. It is just about powers of courts of chancery being exercised in the making of orders for witnesses and it is just giving the court the machinery.
There is a discussion of this in Weiss for the reason that the nature of the proviso was being examined in Weiss from the perspective of what was happening in 1907 in the UK and why were they giving the court these powers and why were they saying it was not just strict error because the court was making its own – the court had to engage with the factual situation in the case. So section 12 is almost pretty much word for word as it said in ‑ I am not sure which section – in the 1907 UK Act. It is pretty much still exactly the same. So that is what we say about that.
I am not going to read from Al Rawi but Al Rawi is useful on this because it is about one party in civil proceedings ‑ maybe that is the one piece I will take your Honours to. It is volume 3 at 1113. If you just have a look at it, it is about a procedure where saying – actions for false imprisonment and the like. The defence wished to maintain their material confidentially. There are just a couple of passages I wanted to take your Honours to.
If you look at paragraph 22, we say is an axiomatic principle in trying to enlist various statutes. Paragraph 41 is also where the body said first, no form of closed material procedure can properly be described as the development of the common law of PII. That is the kind of argument that I was putting to your Honours. It is quite a different thing. Then 47 is about the courts extending the common law themselves. So we say of all the cases Al Rawi is the most useful. Then back to the written submissions. Let me say that that very much militates against the court implying powers to deny for the purpose, in effect, of ‑ ‑ ‑
KIEFEL CJ: Al Rawi accepted that there may be cases which are simply not triable.
MR GAME: Yes, your Honour. We say that too. But this does happen. If, say in a trial, one is in possession – say one is prosecuting a trial, and one knows that one has some very important confidential material, tells the other side that they should issue a subpoena, then one resists the subpoena on public interest immunity grounds, may then be confronted with the proposition that one has to abandon the trial or not call the witness. Those are situations that do happen. That is not a hypothetical situation. So that is, I assume, the kind of thing his Lordship was referring to.
So then paragraph 11, again I have made those points. Having regard to the exchange at the beginning, this morning, I will not go through the material in the book, the confidential book. But it is highly material, it raises a series of quite serious questions about what went on in this case, and does bespeak a very different level of what was ‑ ‑ ‑
KIEFEL CJ: Whether it is not ‑ ‑ ‑
MR GAME: It is not, yes.
KIEFEL CJ: ‑ ‑ ‑ it is necessary for this Court to consider them would depend rather upon which of the alternative orders that you put forward would be pursued.
MR GAME: Yes.
KIEFEL CJ: Whether or not it is remitted.
MR GAME: Yes, your Honour.
KIEFEL CJ: But what do you say about that, in the event that your argument is accepted?
MR GAME: Well, we say the proceedings – this has gone so far that the appropriate order is to uphold the appeal and dismiss the Crown appeal, rather than remitting it.
NETTLE J: On the basis of 5D?
MR GAME: Yes, your Honour. Now, perhaps just before I – perhaps if I just take you to the confidential book and not say particular things about it, but just point you to a few – so if your Honours just look at the confidential book, and I will just do this very quickly - 9 to 14, there are a series of different things. But if you look at paragraphs 23 to 27 on pages 12 to 13, that is the extent to which the person of interest thought this subject was limited. So do your Honours understand what ‑ ‑ ‑
BELL J: Yes.
MR GAME: So how could you actually do this exercise with the [REDACTED] Then you have in the confidential material on appeal that was not available is that affidavit at 25 to 27 which exposes a whole lot
of interesting and troubling things about the person of interest. Then that document - you can ignore that document at pages 29 to 34 because it seems to be an earlier manifestation of exhibit C and it is different. But anyway, the only bit that got read out was the last sentence of paragraph 34 of the earlier one, back on page 14. So back on page 14, the only sentence that got read out was the last sentence of 34 and that is not an assessment. Then you see actually back at 14, 35 brings into play 23(4), as does further material about things that were further done after sentence, which is at page 40.
If you just go back to page 35 – sorry, not 35, if you go back to pages 25 to 28 you will see that that is where the things are emerging with respect to the person of interest and then at 35 to 36, and I made my points about this, those appear to be extracts from documents around about October 2016 after plea but before sentence. If one was scrutinising that there are a number of serious questions that would arise for any responsible counsel addressing that which appears on pages 34 and 35. So that is all I need to say about the confidential book. That is all I need to say, if the Court pleases.
KIEFEL CJ: Yes, thank you, Mr Game. This might be a convenient time for the Court to take its morning break.
AT 11.09 SHORT ADJOURNMENT
UPON RESUMING AT 11.25 AM:
KIEFEL CJ: Yes, Mr Kell.
MR KELL: If it please the Court. Can I just start by indicating, given certain exchanges this morning with my learned friend from the Court, that the document which is in the confidential appeal book from pages 24 to 36 which is described simply as a “confidential affidavit”, that is not a document of which the Crown was aware at the time of the Court of Criminal Appeal proceedings and was not aware until very recently. So, I just indicate that for context. My friend made some ‑ ‑ ‑
KIEFEL CJ: So, exhibit C is simply from pages 5 through to 21‑22?
MR KELL: Exhibit C is simply from page 5 through to 14.
KIEFEL CJ: 14.
MR KELL: Yes, that is ‑ ‑ ‑
KIEFEL CJ: Yes.
MR KELL: That was a document that the transcript records the Crown Prosecutor having seen at the end of the time of the CCA and previously but not the further material to which I have just referred the Court. I will try and do this as elliptically as I can. My friend made reference ‑ ‑ ‑
KIEFEL CJ: Just to be clear, Mr Kell, are you saying that the Crown had not read exhibit C at either sentencing or appeal level?
MR KELL: No, I said the Crown had seen exhibit C.
GORDON J: Just so I am clear then, does it mean that what is between 24 and 36 of the confidential appeal book the Court had it but neither Crown nor the prisoner had it?
MR KELL: I understand that to be so. Yes, because it was ‑ ‑ ‑
GORDON J: So, it was put forward by the police, is that the way – I do not understand how the court could have it and neither you nor Mr Dhanji could have it.
MR KELL: I am not being critical of anyone, I am just trying to explain the process and who had what, that was all.
KIEFEL CJ: Yes. No, that is ‑ ‑ ‑
MR KELL: I understand that it was put forward by the Commissioner of Police when it made the public interest immunity claim in the Court of Criminal Appeal and so the court received it in that context at that time ‑ ‑ ‑
GORDON J: Thank you.
MR KELL: ‑ ‑ ‑together with the affidavit which starts at page 16 and goes through to page 22 which is a confidential affidavit. That document was seen by Mr Dhanji, and I will just give your Honours the reference to that; that can be seen at appeal book 95, on the transcript, page 6, at lines 49 to 50.
But, yes, as I have referred to, the further document which starts at 25 was not – and again, just trying to be quietly cryptic, my friend referred to a broader question of a relationship arising from that material, which is to say the material on page 24. That is not – well (a) it is not material that has been addressed in any written submissions, in part because we did not have the document at that time, it has only recently come to us. But it is also ‑ and again this is not being critical of anyone ‑ but it is also, we say, the matter which my friend raised is not a matter that goes to the grounds of appeal in this Court ‑ ‑ ‑
EDELMAN J: Well, it goes to – it could potentially go to materiality, and it could potentially go to 5D, if the Court had to assess all of the issues and all of the circumstances of the case.
MR KELL: It could, but it does not at the moment. If I could just put it this way. The argument about residual discretion which has been raised and which we have addressed dealt substantially ‑ or dealt with two things. One was procedural fairness, and one was – sorry, one was really access to exhibit C.
That is to say that the residual discretion should have been exercised because counsel in the CCA, in the Court of Criminal Appeal, did not have access to exhibit C, and that is what we have responded to in our written submissions. We say, for the reasons that we set out there, that the ground is not made out.
Similarly, in terms of procedural fairness, which has been raised in the grounds of appeal, in the second ground of appeal and then piggybacked into the third ground of appeal; the applicant or:
The appellant was denied procedural fairness at the hearing of the Crown appeal against sentence –
that that ground has been advanced in writing and met by us as being the procedural fairness was the appellant and her counsel not having access to exhibit C and that is what we have dealt with, and I can address the Court further on that.
BELL J: I understand that is the way the matter has been developed in the submissions that have been filed by the parties but, as I understood Mr Game’s submission and his reference to the material at annexure B on page 35 of the confidential book, it is to illustrate what he described, I think, as a deeper problem touching on the administration of justice.
MR KELL: Yes.
BELL J: It is no surprise it forms no part of his grounds of appeal or submissions because of course he did not know the material beforehand but it is raised today as partly highlighting the force of his contention as to the difficulty that the procedure has occasioned.
MR KELL: Yes, and I do not seek to underplay the submission that was made by my friend about that. What I say is two things. One is that to the extent that it could be seen as raising a wider argument – and I think he referred to the administration of justice – that is a matter on which I would need to get instructions and if ‑ ‑ ‑
EDELMAN J: You have opened it up. Submissions such as paragraph 43 of your submissions which respond to the residual discretion in a particular way open up all of the circumstances of the case and then places Mr Game in an absolutely hopeless position of being unable to respond to all of the circumstances of the case because he is hamstrung.
MR KELL: Your Honour, they were not circumstances of the case of which we are aware.
GORDON J: The issue arises in this, does it not? If you go to confidential appeal book page 62 at paragraph 73, is it the position that the court had before it material relevant to this issue, which nobody else ‑ neither the Crown nor the prisoner had, relevant to the question which is ultimately addressed at paragraph 128 – that is, that the court is moving on material which neither the Crown nor the person has? Is that where we got to?
MR KELL: For the purpose of a public interest indemnity claim that was made at that time and I think, as I indicated, by reference to that particular document, yes.
GORDON J: Would they then use paragraph 128 analysis? They put out of their minds what is set out in those pages, do they?
MR KELL: In paragraph 128, the reference there to – I am not sure if this is addressing ‑ ‑ ‑
GORDON J: The second sentence.
MR KELL: The reference to a later affidavit there is to a different document, which is in a different category. Perhaps for completeness, I should ‑ ‑ ‑
GORDON J: Is it?
MR KELL: Yes.
GORDON J: I see. So the position is, though, that the material set out on pages 24 to 36, goes beyond the other material. Is that a fair analysis?
MR KELL: Yes.
GORDON J: And includes facts and matters that are not elsewhere dealt with?
MR KELL: Yes.
NETTLE J: Are you saying, Mr Kell, that what is in those documents, of which the Crown was unaware but the court was, that they formed no part of the court’s consideration in formulating the resentence? Is that the way it is put?
MR KELL: Well, I still want to go back to her Honour Justice Gordon in a moment on the question that you raised. But that material ‑ or the material in that affidavit at 24 is not material that would go to resentence.
NETTLE J: Because it was not taken into account by the court for that purpose, namely, for the purpose of determining the immunity application?
MR KELL: Yes, I think that is right. If I could just go back to your Honour’s reference to paragraph 128 at page 79 of the confidential appeal book, that is a reference to the document that goes from page 37 to 42. That is a different document.
NETTLE J: Which is expositive of the fact that the court did not take into account on resentencing annexure C – I beg your pardon, the material of which the Crown was not aware, pages 24 to 36 of the confidential appeal book.
MR KELL: It would not appear to be material that would go to resentence, based on its content.
NETTLE J: As I understand Mr Game’s submission, they are to the contrary. But the question is not so much whether it did properly go to it but whether or not it is apparent that the court did not take 24 to 36 into account in the exercise of resentencing the prisoner.
KIEFEL CJ: Some of it would be relevant to the questions under section 23, would it not?
MR KELL: It would appear that when one looks at paragraph 128, that the reference on page 79, that the reference there in the second sentence is a reference back to exhibit C, we would say, and it includes the assessment. Then what is also – and then there is reference, I have taken that assessment into account together with a later document, and that later document might be regarded as a supplementing of exhibit C, having regard to what I took your Honours to at page 38.
So based on those considerations and the language of 128, I submit that the answer to your Honour’s question is that it would appear, on the face of it, that it is not taken into account in the way that – that is to say, the document ‑ ‑ ‑
KIEFEL CJ: It is very hard to know, really, is it not? Three affidavits were handed up to the Court of Criminal Appeal?
MR KELL: Yes, three affidavits and ‑ ‑ ‑
KIEFEL CJ: It was not suggested to the court that they should restrict their use that they made of them, under the “trust me” jurisdiction.
MR KELL: They were handed up for the purposes of a public interest immunity, on the grounds of public interest immunity, on an application by the Commissioner of Police that exhibit C not be made – that consistent with the approach that had taken place in the District Court, that exhibit C not be provided to the then respondent or her legal representatives. So it was provided for what would seem to be a specific purpose; that is to say, the document at page 24.
So all of that is to say that the matter ‑ the broader question that was raised by my friend is not – (a) is not a matter that is addressed in the written submissions, for both the reasons of – well, including for reasons of the parties having access to the material at that time, is not a matter that we say goes to the existing grounds of appeal, which are linked in the way I suggest, in terms of access to exhibit C and that is the way in which we have dealt with them, and that is the way in which I propose to proceed. That is not to say that it is not a matter that potentially would raise considerations of the type that my friend referred to; that is to say, considerations that – I will stop there.
The second point, before I go to the question of power, is that there was reference – my friend referred to there being a common practice, or he being told, I think, that there was a common practice of offenders being offered a choice between a more complete affidavit of which their legal representative would not have access, or a less comprehensive one to which they could get access. That is not a practice of which those who appear for the Crown in this matter are aware and it may be ‑ ‑ ‑
KEANE J: It does not seem to have surprised the CCA.
MR KELL: I mean, it clearly occurred in – on the material that occurred in this case, but whether it is a practice beyond that is not a matter of which (a) there is evidence before this Court and (b) of which those ‑ my friend referred to having been told by someone. As I indicated, those who appear for the Crown in this matter are not aware of that being a common practice and it may be something that ‑ ‑ ‑
BELL J: It was a practice that the Crown adopted here.
MR KELL: Yes.
BELL J: Do you seek to support it?
MR KELL: It is a question of whether – sorry, it was a practice adopted by – sorry, practice indicates that it was something that happened here in terms of the references in the transcript to the offender’s then counsel being offered and agreeing to a certain course of action and that was the starting point. I mean, that is the factual basis on which the matter started in the court ‑ ‑ ‑
BELL J: Does the Crown in this Court support the approach that was taken before the sentencing judge as an appropriate course for the Crown to take in a case in which it is accepted that the section 23 considerations are raised?
MR KELL: The first point is that it was not an approach by the Crown so it is not a – it was an approach ‑ the steps being taken were being taken by and in the context of advancing what on the materials indicates was an appropriate public interest immunity claim by those engaged by the second respondent. So, that is the first point.
The second point is, in a particular case, it may be that questions of public interest will clearly impact on the extent to which the content – and this is speaking generally, but the amount or content of which evidence of assistance could be provided to a court if – and to an extent the Crown has an obligation of trying to facilitate ‑ although it may not be doing it itself ‑ trying to facilitate the provision of material of assistance that can be put before the court, but even in this exercise there can be the balancing of competing interests.
So, for example, if disclosure of particular material ‑ and, again, I am speaking generally outside the context, I am not trying to suggest that this is a context in this particular case – if, in a hypothetical case, the disclosure of particular material would compromise a police operation or would otherwise be contrary to the public interest even in circumstances where disclosing it to – in circumstances where it might be disclosed to either an offender and/or both an offender’s legal representatives, then a decision ‑ in certain circumstances, a decision has to be made by ‑ ‑ ‑
EDELMAN J: That is a submission, effectively, is it, that it can be procedurally fair for a court in some circumstances to sentence an offender on a basis about which that offender is unaware and cannot be made aware?
MR KELL: The example that I was putting forward presupposes that, as happened here, a choice was made by the offender as to whether in those circumstances how the material would go forward and the question of agreement and consent in those circumstances is a matter that, when I turn to the question of power, we say is one of the indicia why (a) there would be circumstances where the court has an implied power to proceed on the basis of what might be regarded as confidential evidence as a matter of analysis, putting to one side the question of exercise of power, and those circumstances are going to be rare. That would be one indicia that might make up exceptional circumstances for indicating both the existence of and, in some circumstances, the exercise of power.
EDELMAN J: Just to be clear, when you say “consent” you mean consent without having seen the document itself?
MR KELL: Agreement to a course of action, yes. And it is – again this goes to the considerations that I will touch on with power and why exceptional circumstances might arise, but it can also be taken to be a step that is being undertaken substantially for the benefit – not wholly because, as my friend said, the court needs to receive material and there is an indication in section 23(4), but material has been put forward. The confidential evidence, the closed evidence, is being put forward very substantially for the benefit of the person who is not having access to it, which again makes ‑ ‑ ‑
EDELMAN J: Does that need to be the case in your submission? If your submission is right there could be substantially detrimental passages in the material. The accused person is never going to see them and they may be just as confidential or just as important from the point of view of the Commissioner of Police.
MR KELL: It does matter in terms of the submission as to both power and exceptional circumstances that it is properly to be taken as material which has been put forward substantially for the benefit of the offender. That was accepted to be the case in the Court of Criminal Appeal here and in the transcript as well, when Mr Dhanji was asked about, [REDACTED] and he accepted that it was.
GORDON J: My problem, Mr Kell, with this submission is it seems to put the cart before the horse. I mean, in a sense, it does not assess the question by reference to procedural fairness. It seems to assume that what is done is permitted, rather than asking yourself, how is it that the requirements of procedural fairness might be met in the circumstances of the particular case?
MR KELL: Yes.
GORDON J: The question here is whether or not, as I think Justice Bell asked you, whether the procedure was appropriate, consistent with the requirements of procedural fairness?
MR KELL: Yes.
GORDON J: I do not know that we have actually got – for the Crown to say, well, it was not our application, is in a sense, I think, not addressing the question itself at a fundamental level.
MR KELL: There is a question first of power, and then there is a question as to the exercise of power.
KIEFEL CJ: There is also a question of the obligation of a court, not just what power it has.
MR KELL: Yes.
KIEFEL CJ: Obligations.
MR KELL: Yes.
KIEFEL CJ: You would have to accept, one was to afford procedural fairness as best as one could in the particular circumstances presented to the court.
MR KELL: Yes.
KIEFEL CJ: Are you suggesting that there could have been ‑ at sentencing, there could have been no directions shaped around this problem which could not have met the requirement for confidentiality in relation to certain people at certain levels, that it could not have been pared down to just those persons who needed to know what was in the material?
MR KELL: Well, the matter that your Honour raises assumes power for the court to proceed on ‑ ‑ ‑
KIEFEL CJ: It is always within the court’s power to afford procedural fairness, surely?
MR KELL: But also ‑ ‑ ‑
KIEFEL CJ: To give directions to ensure that a person is in a position to put their case forward, as best as can be done and at the same time permitting the court properly to exercise its powers and jurisdiction given in relation to sentencing, to take into account matters relevant.
MR KELL: Yes.
KIEFEL CJ: What I am asking you is the really practical question. Are you suggesting that this is a case where it was completely beyond the ken of counsel and sentencing judge to have come up with a process whereby the matters were kept as confidential as need be, but nevertheless permitted instructions to be taken and submissions made?
MR KELL: Your Honour is positing the question at the District Court rather than the Court of Criminal Appeal?
KIEFEL CJ: Yes.
MR KELL: The court could have considered, in the exercise of its power – I mean, the District Court proceeded in the way that it did, clearly, and we make the submission that it did have power to proceed in that way, implied power. But in terms of what – the court could have considered steps such as the appointment of amicus and the like, as an intermediate step, potentially.
GORDON J: Was that the only option?
KIEFEL CJ: You do not need to spell them out. I think it is probably sufficient for you to say – answer the question whether you concede that there were other options open.
MR KELL: That could have been considered.
KIEFEL CJ: Yes. At the Court of Criminal Appeal level the question was quite different. It probably turned on the residual discretion, did it not? If the Crown was going to maintain the position that the material should not be provided in the face of a direct application for access to the material by counsel, then the question of the residual discretion was squarely raised.
MR KELL: Well, it was squarely raised and submissions were made by counsel for the then respondent in the Court of Criminal Appeal and the Court of Criminal Appeal, we say, took that into account.
KIEFEL CJ: Well, that is almost an Al Rawi point, and that is a case that you rely upon.
MR KELL: We took that into account in terms of the residual discretion. But going back to the District Court, the District Court judge was not asked – the District Court judge was asked to proceed, with the concurrence of counsel for the then appellant, on the basis that this material should be before the court, with the appellant ‑ ‑ ‑
KIEFEL CJ: Speaking for myself ‑ I understand the facts of what has occurred, but speaking for myself, I do not really see how this Court is likely to be able to restrict its comments to what occurred in the Court of Criminal Appeal.
MR KELL: Yes.
KIEFEL CJ: Hence the questions put to counsel about what occurred at sentencing.
MR KELL: Yes.
NETTLE J: Does your submission about the District Court come to this: assuming that the material were truly the subject of public interest immunity and therefore its production to the court by the Crown or the police, to the extent that there is any difference, could properly have been resisted, nonetheless, it was open to the prisoner to agree that that material could go forward to the judge, sight unseen, for the assumed benefit of the prisoner?
MR KELL: Yes, before the District Court, that is right. The District Court proceedings had two or possibly three features. One was the consent/agreement of the offender to the particular process. The second is that the District Court, in proceeding in the way it did, we say, it had implied incidental power to make the orders necessary for the proper functioning of the court. And receipt and consideration of material that was provided to it, exhibit C, was or could be regarded by the court as necessary in order for the sentencing court properly to perform its functions under the Act.
NETTLE J: That would be a consideration which, ex hypothesi, had already been taken into account in ruling that that material was the subject of public immunity and therefore need not be produced to the court.
MR KELL: The public interest immunity claim was only at the next level up, at the Court of Criminal Appeal, so I am still ‑ ‑ ‑
NETTLE J: So we were not dealing at all with public interest immunity at first instance as opposed to a claim for confidentiality.
MR KELL: That is right. There was no claim made in terms of – yes, that is right. There was no claim made because there was an agreement or an acceptance by the appellant that that was the way in which she wanted the material to proceed and the proceeding to go forward.
NETTLE J: Either way, though, you would say whether it be a public interest immunity or confidentiality it is open to a sentencing judge to receive material by agreement of the prisoner – sight unseen by the prisoner.
MR KELL: Yes, and the third matter I wanted to raise is that the context is this is – and accepting there are necessarily limitations when one cannot see a document, that this is material about which the offender or the appellant could give evidence, could give oral evidence in closed court in the District Court. This was about something that she ‑ at least about what she had done.
GORDON J: That raises back the very first question and that was your proposition that was a practice adopted here was, as I read by notes, not a common practice. Well, what is the practice? Is it that, that the offender just goes into the witness box in closed court?
MR KELL: What I indicated was that – I think I was quite careful in saying that it is not something of which those who appear ‑ ‑ ‑
GORDON J: I know, I would like to know what is the practice. I mean, what is the practice that deals with this practical question of somebody who is being sentenced in circumstances which raise this issue. What do you do? It is not your answer to Justice Nettle.
MR KELL: An offender can give evidence.
NETTLE J: The offender cannot give evidence as to the way in which the police perceive the benefit of the cooperation that the offender might have given.
BELL J: That is the first consideration listed in 23(2) of the Sentencing Procedure Act, namely, the Court is to take account of the significance and usefulness of the assistance to the authorities. So that really it is no answer to suggest that the offender might go into the box. Here it is true there was, as you submit, agreement by the offender to the course that was taken in the District Court but it was clear to all parties in the District Court, that agreement was entered into in circumstances where it was said the court will be informed of a short form version of matters that might go in mitigation of your sentence or we can give the long version implicitly better for you provided you agree that you are content not to see it. I mean, it is, on one view, to speak of it as agreement is to fail to recognise the circumstances in which the offender is placed in that circumstance.
MR KELL: Yes, and the reasons as to why become apparent later, from the material.
EDELMAN J: Do you accept that, absent the so‑called agreement, the procedure taken would have been procedurally unfair?
MR KELL: That is to say, whether the material was just sought to be tendered without the agreement?
EDELMAN J: Without the agreement, and without the offender knowing of the contents of that information, and being sentenced on that basis? Or do you say that that could still be procedurally fair?
MR KELL: Well, three things. I think the answer to that is that we – and I will direct to a direct answer, but I will just try and do it this way. That (a) it is not the facts of this case; (b) in terms of the important question of whether the court has power to proceed in particular circumstances, we say an indicia here that makes it exceptional circumstances is that characteristic of there being agreement and consent for the provision of certain material. And so I think the answer is that, beyond that ‑ and again it is not this case ‑ the example that your Honour raises may well be procedurally unfair.
EDELMAN J: So if that is the case, then the operative nature of the so‑called consent is really just to waive what would otherwise be procedurally unfair, is it not?
MR KELL: Potentially, yes.
EDELMAN J: If that is right, how can it operate as a waiver in the absence of knowledge of the document, or in the circumstances that Justice Bell described, where the choice being made is just a choice of either the short form or the long form?
MR KELL: In part because it is not the discourse of waiver generally, it is practical, you know, of contractual rights and the like. It is the facts of a particular case where there is a practical consideration arising as to whether an appellant or the offender wanted to proceed in a particular fashion, and the evidence ‑ ‑ ‑
GORDON J: Someone might describe it as an ill‑informed consent.
MR KELL: Clearly, without seeing the document ‑ without seeing the document the person is making a decision, through their legal counsel, as to the way in which to proceed. And the question that they are faced with is, are we prepared for an affidavit to go forward that can be taken to be for the benefit of the person, which we do not see? So the question of, well, to be an informed consent you would have to sort of see the document, in a sense, does not sort of deal with the conundrum – sorry, I withdraw that. It does not deal with the particular situation that was arising.
NETTLE J: It is a choice between the money and the box, is it not, really?
MR KELL: It is a question of whether there is practical injustice and, we say, in the sense of to the extent that impacts on the question of procedural fairness. We put our submissions as to why we say that it is not ‑ in the circumstances, it is not procedurally unfair.
KIEFEL CJ: Because the appellant received an increase in the sentencing discount.
MR KELL: That is one matter on which we draw attention and the appellant also made submissions and we accept that the appellant would have been – to be taken of being in a position of some disadvantage from not having seen exhibit C, but the appellant did make submissions to the effect that there should be an increase on a discount and the appellant was successful relevantly with those submissions because that was part of the result of – I will not go to particular paragraphs, but part of the result. The question of procedural fairness is always a context driven and practical one, there is no – the question is not – a fair trial does not mean a fair trial without any impediment or hindrance at all.
BELL J: Just looking at practicalities then, there seems to be an issue as to the extent to which the sentencing judge approached the matter on the basis that it was necessary to identify for the purposes of the provisions in the Criminal Appeal Act that deal with a matter being brought back by the Crown in the event that there has not been compliance with the understanding on which the sentence was based, the section 23(4) considerations.
MR KELL: Subsection (4), yes.
BELL J: Now, there is an issue, as I understand it, concerning whether it was correct to consider that those ‑ that matter was engaged or whether we were dealing purely with the past. No submission was made. The sentencing judge did not address the issue in any final way, nor did the Court of Criminal Appeal, so when you raise considerations of practical injustice, how do you meet that?
MR KELL: The section 23(4) point, I think at most, is advanced as an example of what is said to be the manifestation of procedural unfairness because it is not a ground of appeal.
BELL J: As I understood it, you were developing the submission that the content of procedural fairness takes into account, among other things, practical justice. Was that the submission?
MR KELL: Yes, consistent with authority, yes, and it varies with the demands of the particular case, and that part of the circumstance here was, as indicated, that the material was being – the agreement, or the provision on which material went before the District Court, and also that the material can be taken to be for the benefit of the appellant, and that they are part of the circumstances.
Similarly, when one comes to the Court of Criminal Appeal, that it was both as a question of power and as to the procedure to go forward, that it was – that the Court of Criminal Appeal needed to have regard to exhibit C in order to discharge, effectively, its appellate function. That was part of the court record and part of the court record was that it was closed. In the circumstances of agreement, by the offender, it was what could be referred to as closed evidence before the District Court.
I have referred also to the fact that the subject matter, at least in part – that is to say, what would be, for example, within section 23(2)(d), for example, are matters of which an offender would be taken to – sorry, would have knowledge. I would just also indicate too that for – at least in terms of the – before the Court of Criminal Appeal, that it was apparent ‑ and I will not read it, but if your Honours go to confidential appeal book at pages 62 to 63 ‑ this is again going to the question of the practical aspect. There was a disclosure, which is at the top of page 63 that was part of exhibit C.
And then if your Honours go to the other appeal book, the core appeal book, at page 70 – and this is in the remarks of the sentencing judge, from about lines 18 through to 29. So that material is also part of the sentencing remarks, and is part of the material which counsel for the appellant will have available to them in the Court of Criminal Appeal.
GORDON J: What is interesting, though, where you took us to it in the confidential book at 62 to 63, it deals with only one aspect, not the 23(4) point.
MR KELL: Yes, and it is really looking significantly at 23(2)(c), and within the judgment of the Court of Criminal Appeal the matter that is referred to in section 23(4)(a), to the extent that it is helped with is at paragraph 128, and again I will not read, and then section 23(6) indicates limitations on the issue of compliance or not with subsection (4).
NETTLE J: What do you say about that, about 23(c)?
MR KELL: Well, as your Honours can see, a failure to comply with the requirements of subsection (4) does not invalidate a sentence.
NETTLE J: I see.
MR KELL: Again, the matters to draw to your Honours’ attention in terms of procedural fairness before the CCA, a further factor that goes into the mix, as it were, is that before the Court of Criminal Appeal the Crown did not seek to cavel with the amount of the discount from the sentencing judge and your Honours are aware of what the outcome in any event was based on the submissions by the appellant but that is also relevant to the question of the mix of procedural fairness.
We say, in those circumstances, having regard to the combined force of those various factors, that in the Court of Criminal Appeal the appellant was not denied a fair opportunity to put a case having regard to the fact that questions of procedural fairness to a large extent depend upon the demands of the particular case and that it varies according to the circumstances and this case is perhaps factually unique and factually exceptional.
NETTLE J: I should not think so. There must be lots of these cases.
MR KELL: Where you have the combined force ‑ ‑ ‑
NETTLE J: Where you have someone who is giving assistance and there are circumstances which make disclosure of information about that a delicate proposition.
MR KELL: Yes.
NETTLE J: There are many, many cases, surely.
GORDON J: That is the reason why I asked Mr Kell what is the practice that is adopted.
MR KELL: Yes. We say the combination of features here both go to the question of power but also indicate that there was no denial of procedural fairness in the circumstances in the Court of Criminal Appeal, which is the ground that is raised.
BELL J: When Mr Dhanji applied for access to exhibit C and the court ruled against that application, what do you say to Mr Game’s submission that at that point, the court having ruled against counsel having access to material that was at the heart of his case in opposition to the Crown’s appeal, that the appropriate course was to dismiss the appeal? The Crown stood by, content to see the matter determined on the basis of material that senior counsel for the respondent to the appeal had no access to, the ruling had been made.
MR KELL: If your Honour is asking whether the – if your Honour is posing the question whether the Court of Criminal Appeal, that day on the day of the hearing of the appeal, should then readily have dismissed the appeal in those circumstances ‑ ‑ ‑
BELL J: I am raising the question of the propriety of the Crown maintaining an appeal contending that the sentence breached section 23 in that it was disproportionately lenient, standing by in circumstances in which the ruling is made that precludes senior counsel having access to the material that is the central plank of the case. On one view, one might think that does provide a powerful discretionary reason for not allowing the appeal.
MR KELL: Could I just say two things. One is the timing. The Crown – and I will answer your Honour’s question – filed a Crown appeal from the decision of the sentencing judge. That is in the appeal book, so that is filed on 2 March 2017. The matter then proceeds to a hearing before the Court of Criminal Appeal. On the day of the hearing there is an application – well, it is dealt with on the day of the hearing – by Mr Dhanji for access to exhibit C. The Crown is there to run its appeal. That is opposed by the second respondent, who has counsel there. The court receives material. The court adjourns. The court comes back and makes the ruling that is referred to in the transcript.
The appeal is on foot at that stage, the hearing of the appeal. Mr Dhanji makes submissions to the effect, although Mr Dhanji does not say “By reason of me not having access to exhibit C, this court should today terminate the appeal forthwith and not exercise jurisdiction, subject to my friend drawing attention to a particular paragraph” but what he does make the submission is that by reason of the residual discretion the court should, you know, when it determines the matter, which it will do shortly, the court should refuse to intervene to sentence even if error is disclosed. So that question, that is to say that the appeal should not go forward to a successful result, was being put by – was before the court to be decided. In those circumstances, the rest of the appeal was heard.
So in answer to your Honour’s question, your Honours should not take the view that in those circumstances the Crown acted other than properly in proceeding in seeking to have its appeal heard from what was said to be – from what was, subject to residual discretion issues, found to be a manifestly inadequate sentence below.
EDELMAN J: But you do not point to any other factors, other than the fact that you say that error was disclosed, that would weigh against any unfairness considerations? For example, you do not say that this case established a precedent that was important in the run of things or anything like that?
MR KELL: It was, in its judgment, the court found that it was effectively – that the sentence that was imposed was unreasonable, the aggregate sentence was unreasonable and plainly unjust and that is at paragraph 110, appeal book 74.
NETTLE J: They said it was important to maintain sentencing standards.
MR KELL: Yes.
NETTLE J: That is why they were going to entertain the appeal.
MR KELL: Yes.
NETTLE J: What about Mr Game’s point that this case or decision will never see the light of day?
MR KELL: Well, I accept that. That is right. I accept that the publication of the judgment itself is a matter as Mr Game said.
NETTLE J: It is not going to be in the statistics or in the commentary about sentencing standards.
MR KELL: Well, certainly not at this stage, and perhaps not for a while.
So I think I have dealt with the procedural unfairness. There has not been much in terms of submissions or perhaps exchanges in terms of the pure question of power, that is to say, the power of the District Court and ‑ ‑ ‑
EDELMAN J: They are not really dependent, are they? The question of power is in part dependent upon procedural fairness because power conferred by statutes is construed against a background of principles sometimes described as common law principles of procedural fairness.
MR KELL: Yes, except for this, that there is a question of whether – ultimately there is a question here, a strict question of whether there is power for, in this case, the Court of Criminal Appeal to proceed to deal with the matter having regard to what ends up being closed evidence or confidential evidence and then there is the question of the exercise of a particular power and it might be that it would only be in exceptional circumstances and our submissions proceed on the basis that it would only be in exceptional circumstances that a court would have implied or otherwise inherent power to proceed on that basis.
We draw attention to the fact that here the court, accepting what your Honour says about the practical questions of procedural fairness in those circumstances that arise, but here the court as a matter of power had implied power in the exercise of its appellate jurisdiction to proceed on the basis of material that was closed material that had been before the court below and that is, we say, supported by the authorities that we deal with in our written submissions including – starting in particular with Bank Mellat v Her Majesty’s Treasury (No 2) and also draws upon the Constitutional Reform Act 2005 which proceeded on the basis that the UK Supreme Court had power to adopt a closed material procedure in circumstances where although not specifically conferred by statute the court below had proceeded on that basis.
Part of the analysis by the court or an important part of the court’s reasoning was the absence of such a power would be productive of unacceptable circumstances. At paragraph 38 of that judgment in the joint book of authorities at page 1240, volume 3, the court draws attention to possible alternative consequences which arise including that – and which we say are also informative in terms of the question of power in the present case.
The appellant’s oral outline handed up today raises appeal question of power at paragraph 10(iii) and there is a contention made to the effect that the Court of Criminal Appeal has no power in any circumstances. We say that the unacceptable consequences which are referred to at paragraph 38 of Bank Mellat, which include that appeals otherwise “could not be entertained”, which is an unattractive option, that a court would be bound to dismiss an appeal which might be taken as otherwise effectively nullifying a right of appeal.
Thirdly, a court would be forced to perform its appellate function without looking at closed material which, at paragraph 41, the Supreme Court indicates would be an unattractive result and could jeopardise the correct or just result in particular cases. Alternatively, or fourthly, the court could entertain an appeal but consider disclosing the evidence in open court or consider disclosing the document more limitedly, limited to, for example, a party’s legal representatives.
Both of those options in circumstances such as, for example, the present case or in a particular case might be regarded as problematic and would raise specific public interest considerations. So all of those considerations, we say, point to the conclusion that it is not correct to say that as a matter of principle a court must have express statutory conferral of power from Parliament directly authorising it to consider closed evidence in every particular kind of case.
There are circumstances such as this case where a criminal appeal court is exercising its appellate jurisdiction that we say it does have power. Reference was made briefly to Al Rawi [2012] 1 AC 531 and within that case - and that is at joint book of authorities volume 3 at tab 31 - there is reference to the fact that even though the court concluded within the terms of the respective judgments, a majority of that court concluded that the court does not have a general inherent power to adopt a closed court procedure, there are exceptions to that and those exceptions include wardship proceedings, confidential information‑type trade secret cases where departure from the normal rules is justified and the discussion by – or the analysis by ‑ ‑ ‑
EDELMAN J: Was the first instance power that the Supreme Court was concerned with in Bank Mellat a statutory power?
MR KELL: By the courts, the lower courts?
EDELMAN J: Well, the conclusion, as I understand it, was that the appeal power extended presumably by implication to allowing consideration of closed material but was that as a consequence of legislation that permitted closed material at first instance?
MR KELL: The answer is that the context was yes, that there was legislation that did not extend to the Supreme Court but extended to the Court of Appeal or relevantly the Court of Appeal and the High Court.
EDELMAN J: Is there any suggestion in the decision that the same approach could have been taken without the legislation?
MR KELL: It is fair to say it is touched upon – and it is really at paragraphs 40 and 51 – within Bank Mellat as being a matter that was relevant in the analysis, that is to say that the lower courts there acted pursuant to a particular statutory authority or statutory warrant to adopt a closed court proceeding, whereas the distinction here is that the District Court, to the extent that we need to find support for the District Court proceeding on that basis, that it is not pursuant to a particular statute rather than what we say is an implied power to do so.
But we say that as a matter of principle the analysis is or should still be the same, that is to say if the District Court proceeded permissibly to deal with closed evidence in circumstances where – I will not go through all the factors – we draw attention to the unique or special circumstances, then in exercising its appeal jurisdiction that as a matter of power that the Court of Criminal Appeal should similarly have been in a position to do so.
So, and I will just do this briefly, in Al Rawi there is reference to certain categories where – the wardship cases and the trade secret cases – where a departure from the usual rules of procedure have been held to be justified but there is no – this is Lord Dyson at paragraph 65 – the language of Lord Dyson, his Lordship, is not in terms of this as being the only categories. Rather, it is a comment on categories that have emerged thus far from the authorities.
BELL J: His Lordship did not see those particular instances as justifying a rule of general application in ordinary civil litigation.
MR KELL: No. But they were examples of – and the point we put is that it is a question of characterisation and this is on the important question of power. The appellant suggests that there is an absence of power in terms of the submissions to which I have just drawn attention. However, what we say is that these examples which are said to be departures from the ordinary position in one sense are indicative of there being such a power. It is just a question of determining the limitations and the extent of the power in circumstances in which an undoubted power will be exercised.
In Al Rawi, part of the analysis or consideration was the question of whether the agreement of the parties to a particular course was also – that is to say that the court could proceed in such a fashion, not just the wardship cases or the trade secrets cases, but in circumstances where the parties agreed to such a course occurring and the matter was not properly argued so the comments of the lords need to be taken in that context.
There were varying statements. I will just give your Honours the reference. Lord Dyson at paragraph 46, leaving the question open without expressing a view – that is at page 1163. On the basis that we had heard no argument on the point, Lord Hope at paragraph 75, at page 1169, leaving the question open but doubting that consent would make it appropriate.
GORDON J: What paragraph was that, please?
MR KELL: That was at paragraph 75 at page 1169.
GORDON J: Thank you.
MR KELL: Then Lord Brown at paragraph 84, page 1172, who was against the idea, again the matter not being argued but the agreement of the parties does not make closed evidence permissible. Lord Kerr at paragraphs 98 to 99, at page 1175, expressing misgivings but not stating a final view and then at paragraphs 113 to 114, there is a decision of Lord Mance with Baroness Hale agreeing, so members of the court reasoning that the court should consider closed evidence where the parties agree. That is at pages 1178 to 1179 and particularly at paragraph 114, accepting that what might be regarded as the wardship exceptions and the like, to my mind, also make it difficult to suggest that the court lacks jurisdiction in a strict sense. So it is a question of working out what are the examples of exceptional cases where such a jurisdiction can be exercised.
We have also referred in our submissions to Haralambous, which is the more recent decision of the UK Supreme Court. That is at volume 3 of the joint book of authorities at tab 33, where – and in particular at paragraph 53 where the court noted the exceptions accepted in Al Rawi and then at 54 considered the present case which was essentially one of judicial review of, relevantly, applications for a search warrant or orders for the retention of property unlawfully seized after a search warrant. The judicial review proceedings could similarly consider closed evidence where that material was considered in the courts below, so it was a further example.
We say for the reasons that I have indicated that the present case – the question of how the present case did raise exceptional circumstances and the combination of factors, which included the strong public interest in the content of exhibit C not being made public or being further disclosed in the circumstances and on the combination of factors that is something that makes this case one would think far from common. So there is a question of power; the court has power and, in our submission, it could exercise power.
In terms of the third ground of appeal – I think I have dealt with the second ground – the third ground of appeal is a residual discretion which we have dealt with in the written submissions. I will just touch on them very briefly. The complaint is that the Court of Criminal Appeal failed to consider two things. One is the denial of procedural fairness afforded to her and the second was the conduct of the Executive in bringing the appeal in circumstances where she was denied access to exhibit C.
Just dealing with the second one first. The suggestion of there being some misconduct by the Executive in bringing the appeal is, we say, misplaced. The appeal could properly be brought, given the error that was identified on the part of the sentencing judge and given the timing considerations that I have referred to and the treatment of exhibit C, which was a matter raised and pursued separately before the Court of Criminal Appeal by the second respondent on the basis of material in the confidential affidavits, combined with the judgment of the Court of Criminal Appeal, the material that your Honours have seen, makes clear that the circumstances were – that there were public interest considerations justifying the keeping of exhibit C confidential, including from the appellant’s legal representatives.
NETTLE J: Mr Kell, your first point referred to, amongst other things, the timing. Did you mean by that that because the Crown did not find out till the Court of Criminal Appeal that there were other things in issue, it was appropriate to bring the appeal?
MR KELL: I had in mind in particular when I just said that that the Crown appeal was brought in March, so I think that the matter that is referred to is the CCA failing to consider the conduct of the Executive in bringing the appeal. The appeal itself was brought back in March 2017 by the filing of a Crown appeal against a manifestly inadequate sentence, as it has been regarded now, and it is not until months later at the hearing of the appeal that the – on the day of the appeal that the matter is raised about the access to exhibit C and the like.
NETTLE J: I understand there would be no impropriety in actually instituting the appeal but is not the question whether it was propitious for the Crown to proceed at the appeal once the issue emerged?
MR KELL: I think I have dealt with that as best I can in answer to her Honour Justice Bell’s questions earlier about - in those circumstances that Mr Dhanji had raised for the court’s consideration that the residual discretion should be a reason why the Crown appeal should be dismissed. So that was squarely in play on that day and it was still appropriate for the Crown to continue with the appeal. It can be the case that ‑ ‑ ‑
NETTLE J: But not because of the timing; just because you say it was appropriate?
MR KELL: Yes, and it can be the case that a Crown appeal can be not uncommon, subject to the question that was raised about publication, which
I accept. But it can be the case that a Crown appeal is properly brought. It is dealt with the by Court of Criminal Appeal where guidance is given for sentencing judges because of sentencing standards and problems below, but the residual discretion is nonetheless exercised.
That may be for a variety of reasons, some of which might be beyond the control of the Crown in certain circumstances. It might be the rehabilitation of the offender in the meantime since – so there are a variety of reasons. So, of itself, it is not inappropriate to proceed with a Crown appeal by reason of the fact that there may be an exercise – a Crown appeal that is on foot that has been heard – by reason that there may be residual discretion exercised against the Crown.
KIEFEL CJ: I note the time, Mr Kell.
MR KELL: Thank you.
KIEFEL CJ: Do you have any further submissions?
MR KELL: I think that will be all. Could I just check over lunch ‑ ‑ ‑
KIEFEL CJ: Yes, of course.
MR KELL: ‑ ‑ ‑ and it would only be another couple of minutes.
KIEFEL CJ: The Court will adjourn until 2.15 pm.
MR KELL: Thank you.
AT 12:50 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
MR KELL: Your Honours, those are my submissions.
KIEFEL CJ: Thank you, Mr Kell. Yes, Ms Sharp. Ms Sharp, I think you need an extension of time in relation to the amended notice of contention.
MS SHARP: Yes, I do, your Honour. I need a one day extension but I also need a further extension because we put on an amendment following from some submissions made by my learned friends for the appellant. They have raised a question about whether the Court of Criminal Appeal did have an inherent power and we amended the notice of contention accordingly.
KIEFEL CJ: Is there any objection to the extension, Mr Game?
MR GAME: No, your Honour.
KIEFEL CJ: You have that extension. The appellant in the written outline points out that – makes the submission that the second respondent should be limited to questions of exercise of power rather than having full party rights for argument.
MS SHARP: I understand that, your Honour, and I do not propose to take the full rights of the party. We propose to limit our address to questions which directly concern the Commissioner and they are, first of all, whether the Court of Criminal Appeal had the power to direct that an affidavit of assistance that was before the District Court at first instance not be shown to the appellant or her legal advisers on appeal.
Now, that is one of the questions to which ground 1 gives rise. The second matter, upon which we wish to be heard albeit in a limited way, is on the question of whether the appellant was denied procedural fairness by reason of that order because as his Honour Justice ‑ ‑ ‑
KIEFEL CJ: What is the second respondent’s interest in that?
MS SHARP: As his Honour Justice Edelman pointed out the question of procedural fairness is tied up, at least to some extent, on whether there is a power in existence and whether it ought to have been exercised in the circumstances of the case and it is only to that extent that we seek to be heard, on that second issue. We certainly do not wish to be heard on the third ground of appeal which goes to the exercise of the residual discretion, your Honours.
KIEFEL CJ: Yes, Ms Sharp.
MS SHARP: Can I start by noting that the courts have long recognised the need to protect the safety and the confidentiality of the identity of those who provide assistance to the authorities. In this case it fell to the Commissioner to take all available steps to protect the interests of somebody who had provided assistance to the authorities. The rationale for this, your Honours, is to ensure that crime can be effectively investigated and prosecuted by promoting the free flow of information from those who choose to assist the authorities.
The position of the Commissioner, your Honours, is that this case did involve a novel factual situation and it necessitated the exercise of an exceptional power. We agree from the outside that this was an exceptional power. We say the power was necessary in order to protect the administration of justice in the particular circumstances of the case and was exercised without causing any real unfairness to the appellant.
Your Honours heard some submissions about a so‑called common practice of the Commissioner. Can I indicate to you, your Honours, that my instructions are that it is common that the affidavit of assistance does not go to the accused. The affidavit of assistance often does go to the legal representatives of the accused.
However, what will happen will always be guided by the particular circumstances of the case and what is necessary to protect the administration of justice. They are my instructions but can I note for your Honours a case that I came across in the luncheon adjournment. I do not have a copy but I will give your Honours the citation for it. It is the case of T v R [2015] NSWCCA 28. There was reference to an affidavit of assistance at paragraph 15. Justice Harrison, with whom Chief Justice Hoeben in Common Law and RA Hulme agreed and said that:
The applicant’s legal representatives do not have a copy of these documents (as is the usual practice) -.
That is somewhat different from the instructions that I have just conveyed to you but, for the sake of completeness I wished it to be noted.
KIEFEL CJ: Thank you.
MS SHARP: Can I briefly outline the way I propose to structure the address this afternoon. First of all, I would like to say something about the role of the confidential affidavits, which your Honours will find in the confidential court book. Secondly, I wish to say something very briefly about the suppression and non‑publication orders that have been made in this case. They are largely dealt with in a note that we have handed up to your Honours, which my learned friends have consented to us handing up to your Honours.
Next, we wish to say something about section 23 of the Crimes Sentencing Procedure Act then move to address your Honours on the facts of this case, although in a circumspect way and then make some submissions to your Honours about the source of the power to make the orders in this case, looking firstly at public interest immunity, then at the inherent power, possibly the implied power and thirdly at the Court Suppression and Non-Publication Orders Act. Then I will say something ever so briefly about the question of procedural fairness in this case.
There was a question addressed to my learned friend, Mr Kell, about the role that the two confidential affidavits played in these proceedings. Could I take your Honours to the confidential court book and start at page 16 with a confidential affidavit of an Acting Assistant Commissioner of Police. This is referred to in the submissions as the first confidential affidavit.
This first confidential affidavit was provided to the legal representative of the appellant during the Court of Criminal Appeal hearing. However, the second confidential affidavit was not provided to either counsel for the Crown or counsel for the appellant and that second confidential affidavit appears from paragraph – I beg your pardon, at page 24 of the confidential court book.
These two affidavits, together with an open affidavit of Assistant Commissioner John Kerlatec, which your Honours will find in the open court book, were used to make an application said to be based upon the principles of public interest immunity, to seek an order that exhibit C not be provided to the appellant or her legal advisers, in the course of the appeal.
So that was the role those three affidavits played. Could I take your Honours to the transcript of the proceedings before the Court of Criminal Appeal, which are in the open book at page 95. Your Honours will see at about line 18 that Mr Singleton refers to the three affidavits and then exhibits to those affidavits, which he handed up in envelopes. Then if your Honours look at line 47, Mr Singleton referred to the three affidavits, and noted that Mr Dhanji, the counsel for the appellant, had seen the first two affidavits, but not the third – and that third one is what I refer to as the second confidential affidavit.
Just while we are in this transcript, your Honours might note the next page at page 96, at line 37, Mr Singleton puts the claim on the basis of the doctrine of public interest immunity.
BELL J: And as a class claim?
MS SHARP: As a class claim, yes, your Honour. Your Honours, I had proposed to say something about the web of suppression orders and non‑publication orders in this matter. It became more efficient to put that into a note, and we have handed that note up to your Honours in the hope that it assists in navigating through that complex web of orders. I do not need to say anything else about it.
Can I move now to address your Honours briefly on section 23 of the Crimes (Sentencing Procedure) Act. I appreciate your Honours have already gone to it, but I would also like to emphasise some aspects of it. Your Honours will find it in the first volume of authorities at – in fact, I will take your Honours to section 21A, first of all, which your Honours will find at tab 3. Section 21A(1) provides that:
the court is to take into account –
certain matters. So there is a mandatory requirement. Part of that mandatory requirement relates to (b), “the mitigating factors.” Over the page, at subsection (3), your Honours will see the mitigating factors are set out and relevantly subparagraph (m) is:
assistance by the offender to law enforcement authorities (as provided by section 23).
So that is a mandatory consideration for the court. Over at tab 4, your Honours will find section 23 reproduced. At section 23(2) the court is told that it must consider certain matters and they are, relevantly:
(b)the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance . . .
(c)the truthfulness, completeness and reliability of any information . . .
(d)the nature and extent of the offender’s assistance or promised assistance,
(e)the timeliness of the assistance –
As your Honours would readily appreciate, that could very well involve some very sensitive information needing to be provided to the court. But that is the framework in which the court must act and the parties must litigate.
Can I move now to address your Honours on some of the facts? The first proposition is that the appellant was given a choice in this case as to whether she wished to see the affidavit of assistance. I will come back to the evidence in that regard more fully in a moment. The second point is that the appellant, with legal advice, made an election not to see it and entered into an agreement with the Commissioner. Again, I will take your Honours to evidence. Next, the appellant changed her mind when it came the time of the appeal. Next, the affidavit of assistance was not tendered for a purpose that was adverse ‑ ‑ ‑
KIEFEL CJ: Well, you are not suggesting, though, are you, Ms Sharp, that what you call the election or the choice of sentencing was intended to carry through to any appeal?
MS SHARP: Well, your Honour, we say there is a public interest in the appellant being held to her election because it affected what was contained within the affidavit. Can I take your Honour to answer that question directly by taking you to some confidential material. Your Honour, I will be quite circumspect in the way I do this and invite your Honour to read certain passages. Could I take your Honours, firstly, to page 17 of the confidential court book and ask your Honours to read paragraph 4(3) at the bottom of that page.
Your Honours will see reference to an attachment marked A. Could I take your Honours to that attachment, which your Honours will find at page 22. Your Honours will note the various persons who are addressed in this document, and your Honours will note the subject of this attachment.
Could I take your Honours back to page 18 and to paragraph 5 and ask your Honours to read the explanation at paragraph 5. If your Honours then go to paragraph 7 in the third line, line 60, you will see a particular risk being identified and then, if your Honours have regard to paragraphs 6, 7 and 8 ‑ ‑ ‑
BELL J: Can I just inquire, I thought a little earlier in your submissions, you indicated that your instructions were, as I understood it, not consistent with a practice of not making the material available to counsel.
MS SHARP: Yes.
BELL J: Does that sit with paragraph 7 of the affidavit on page 18?
MS SHARP: May I just have the opportunity to read? Your Honour, yes, it does sit with that, what I indicated what my instructions were and could I take your Honour back to paragraph 5 to the sentence commencing at line 30 with the word “Sometimes”.
BELL J: Yes. So if you go to the first sentence of paragraph 7 there is a reference to the suggestion that in the vast majority of cases ‑ ‑ ‑
MS SHARP: Yes, I see that reference.
BELL J: It carries with it the suggestion that this is not a particularly unusual series of events.
MS SHARP: I have to accept to some point it does carry with that but I have to indicate that – what my instructions were and are and remain and also point to the context provided by paragraph 5 of that affidavit.
BELL J: Just while you are on that context, you have taken us to the statutory scheme which under section 23(2)(b) of the Sentencing Procedure Act requires the court to take into account the significance and usefulness of the offender’s assistance, taking into consideration any evaluation by the authority.
When one reads paragraph 5 and following, am I right in understanding that despite that statutory scheme which makes it mandatory for the court to have regard to information which inevitably must be information in the hands of the Commissioner or other law enforcement authority, the Commissioner makes a determination as to the extent to which material will be made available to the court depending upon the circumstances, but if the Commissioner considers the materials confidential and the offender is not willing to forgo his or her interest in seeing the material then a circumscribed version of the matters to which the court is to have regard under 23(2)(b) is supplied to the court.
MS SHARP: This raises the question of the compromises that need to be made but also at the level of generality in which evidence is expressed, having regard to the duty of the Commissioner to take every possible step to protect the safety of informants, the confidentiality of police methodology and the need not to compromise ongoing investigations. So these are matters that have to be carefully weighed in every circumstance and the procedures adjusted accordingly to ensure that there can be compliance with section 23 but equally the other public interests that I have just referred to can be protected.
That can be done through the level of generality at which certain matters are expressed. For example, it may be possible to express an evaluation by the authority of the assistance rendered to say, for example, that it is high and not provide any explanation at all as to why that is considered to be high. But that might not be ‑ ‑ ‑
EDELMAN J: That is a very extreme position. Surely, in almost every case it would be possible to descend to particulars without compromising informants or the nature of investigation.
MS SHARP: It always, your Honour, depends upon the particular circumstances of the case, but perhaps I could illustrate that by reference to some of the matters covered in exhibit C, which is the affidavit of assistance. If I could take your Honours to that, that is also found in the confidential court book and again I will be quite circumspect in the way I refer to it.
If I could use as an example paragraph 7, which your Honours will find at page 10. This has been redacted from the version of the confidential appeal book that has been provided to the appellant’s legal representatives and the DPP’s representatives. It has not been redacted in your Honours’ copy. Your Honours copy should have it in yellow.
GORDON J: So the position is we have material that the other parties do not have?
MS SHARP: Yes, you have some unredacted material that the counsel for the appellant and the ‑ ‑ ‑
KIEFEL CJ: I was not aware of this.
GORDON J: None of us were.
KIEFEL CJ: I am not sure whether counsel were aware of it.
MS SHARP: Counsel should have been aware of it because there should be black redactions in their confidential appeal books. It has been covered in the note that was circulated with the consent of all parties. But there was some – and if I recall correctly, it was also canvassed before his Honour Justice Gageler at the directions hearing that took place in this matter.
KIEFEL CJ: What is the direction that covers this?
MS SHARP: Your Honour, there is an order of Justice Gageler dated 25 June 2019, which at Order 2 – do your Honours have that?
KIEFEL CJ: Yes.
MS SHARP: Your Honours will see that an order is made about suppression. In paragraph (a), reference is made to:
Confidential Appeal Book with certain redactions made by the Second Respondent ‑ ‑ ‑
EDELMAN J: That is to be provided to Mr Game.
MS SHARP: Yes, but with certain redactions.
KIEFEL CJ: Well, what does “certain redactions” mean? How is this – was this before his Honour, in a particular form?
MS SHARP: The precise redactions were not before his Honour. But it was made clear to his Honour, if I recall correctly, that certain redactions would need to be made to this material.
BELL J: So at the moment the Court has material before it that the parties do not?
MS SHARP: The Court has – that is correct, your Honour. Your Honour has the un‑redacted confidential court book.
EDELMAN J: You are about to make a submission in relation to material that the appellant has not ever seen?
MS SHARP: Yes, your Honour.
KIEFEL CJ: Mr Game, do you wish to be heard about this?
MR GAME: Well, this does come back to the comment Justice Edelman made to me this morning. This is really an additional element of unfairness from our perspective. But I think what needs to happen is your Honours need to have a copy of ‑ ‑ ‑
KIEFEL CJ: What you have ‑ ‑ ‑
MR GAME: So that is that. But so in this document here, we do not see ‑ ‑ ‑
KIEFEL CJ: We can identify the parts that are redacted. They are highlighted in ours, rather than redacted – they are highlighted.
MR GAME: I see. I see.
KIEFEL CJ: So we are able to see – now that we understand that ‑ ‑ ‑
MR GAME: So we got this document on Friday and it did not dawn on us immediately that we were not seeing things ‑ ‑ ‑
KIEFEL CJ: What the Court was seeing?
MR GAME: That is right. So we have no idea what the significance of this material is and we never will have any idea what the significance of this material is.
KIEFEL CJ: What course do you propose that the Court takes?
MR GAME: Well ‑ ‑ ‑
KIEFEL CJ: Would you like to consider that?
MR GAME: Yes, but there is – I think that – could I just deal with it in reply and I will just think about it while the submissions are going on?
EDELMAN J: It is the same submission Mr Dhanji made, is it not?
MR GAME: Yes.
KIEFEL CJ: The question is whether we should be proceeding.
MR GAME: Yes. Yes, your Honour. Could I just – there is also something about Mr Dhanji’s position. He had already foreshadowed the submission in his – we have checked – in his written submissions that were filed a week before the hearing.
KIEFEL CJ: I had assumed that would be the case.
MR GAME: So this did not just turn up on the hearing of the appeal.
KIEFEL CJ: No.
GORDON J: But it was clear on the transcript.
MR GAME: That he had already raised it, yes. So it did not just kind of happen. Our position is that this is a reason, another reason why the Court should uphold the appeal and dismiss the Crown appeal because there is a further level – in a sense, not only can we not take instructions, we do not even know what the material is exactly that we are talking about. But one way of proceeding would be to disregard the material in yellow but that does not work either because that material was before the court below.
The other thing that this material discloses is that the trial judge did not have proper material before him either because the material that is tendered in the Court of Criminal Appeal shows that that material was incomplete. So there are sort of three levels and we are at the third level of a quite incomplete basis of what is being put.
KIEFEL CJ: But do you wish the Court to proceed to hear the matter on the basis of the information that you presently have?
MR GAME: What I do say is the fact that we are excluded from seeing what must be important material is itself a reason for upholding the appeal and dismissing the Crown appeal.
KIEFEL CJ: So you rely upon it?
MR GAME: Yes, your Honour. So we say the section 37 of the Judiciary Act exercise – will be exercise the powers of the Court of Criminal Appeal and dismiss the appeal.
KIEFEL CJ: Well, we will continue on that basis and the second respondent is on notice that you are taking that point.
MS SHARP: Your Honours, can I indicate that it was made plain at the time that these orders were made by Justice Gageler that it was proposed to redact the confidential court book. Undertakings were sought so that we could provide some material to the lawyers for the DPP and the appellant back in June. As it turns out, those undertakings were only very recently provided but this is a matter upon which the Commissioner has always been candid about the approach that would be taken to this information which, on any view, is highly confidential.
Your Honours, the situation before the District Court was that there was material before the judge that was not available to the appellant or her legal advisers and there was material before the Court of Criminal Appeal that was not available to the appellant and her legal advisers but the view was taken that all material must be available to this Court by way of explanation for those redactions. If your Honours would prefer that I did not take you to the materials that are black redacted, I am happy to move on.
EDELMAN J: Do you accept that if the Court of Criminal Appeal or this Court does not have power to adjudicate upon a matter or on this matter by reference to submissions and material that counsel for one side has not seen but counsel for the other side relies upon that the only orders in those circumstances would be to dismiss or to allow the appeal and exercise the power under section 5D in place of the Court of Criminal Appeal?
MS SHARP: In one sense, your Honour, it is not for the Commissioner to say how this appeal should be disposed of with respect to the exercise of the residual discretion. The Commissioner for Police occupied a very different position than did the Crown on this appeal.
The role of the Commissioner of Police was to protect the safety of somebody who provided assistance to informers. That is the duty of the Commissioner in this case. That may have implications for the manner in which the appeal is to be disposed of but that is not a matter in respect of which the Commissioner properly has a role in making submissions in relation to ‑your Honours, could you pardon me to check my notes for one moment because I am going to take a slightly different course.
KIEFEL CJ: Of course it goes without saying, Ms Sharp, that much of what is said in this area has already been covered by Mr Kell.
MS SHARP: Absolutely, your Honour. I did wish to take you to some material in the second confidential affidavit in the confidential court book. If I could take your Honours to page 25, this was the affidavit that was not made available to Mr Dhanji in the appeal. Could I ask your Honours to have regard to paragraph 6(1) but not the material in yellow. Then over the page, could I ask your Honours to have regard to subparagraphs (2), (3), (4), (5) and (6).
KIEFEL CJ: I think you can take it that members of the Court have actually read all of the material. So if it assists you, you could just make points you particularly wish to make.
MS SHARP: Thank you. Yes, your Honour. There is one further point and I understand what your Honour is saying but just to emphasise paragraph 7, the first line. In view of the facts, could I now move to the question of power? I have indicated that when the matter was before Court of Criminal Appeal the application was put by the Commissioner of Police on the basis of public interest immunity. That, your Honours, typically works as a doctrine of exclusion and it did not work that way in this case.
There are some precedents for public interest immunity being used not to exclude evidence but to facilitate the tender of that evidence on a basis that it is confidential to some of the parties to proceedings. Those precedents, if I can put it that way, are collected from paragraph 31 of our written submissions.
I do not propose to say anything more about them in the interests of time. I do wish to make one submission about the United Kingdom Supreme Court case in Al Rawi and Others v Security Service and Others [2012] 1 AC 531 and that is to make the point that the facts of that case were a universe away from the facts of this case. It was proposed in that case to have confidential pleadings and very large amounts of evidence that were not to be provided to the plaintiffs in that case. That is quite a different scenario to what is proposed here.
In addition, it was clear that the evidence proposed to be led in confidence in that case would be adverse to the interests of the plaintiffs. That is not the case here where the evidence tendered was in support of the interests of the appellant. If there be some doubt about whether the principle of public interest immunity can be used to act in this facilitative way rather than in the traditional exclusionary way ‑ ‑ ‑
EDELMAN J: It is not public interest immunity at all, though. It is not an immunity at all, is it? It is a new rule.
MS SHARP: Your Honour, there certainly is a basis for saying that it is more properly to be characterised as an exercise of the inherent power or the implied power because it is no longer operating as an exclusionary rule.
GORDON J: It is operating as a mechanism by rule – that is, by order – to protect something on confidential grounds for a purpose which may have association with the things that underpin public interest immunity. But that is as far as it goes, is it not?
MS SHARP: Well, your Honour, I can only say that there are a number of cases which are referred to in our submissions from paragraphs 31 that do put this kind of order on the basis of public interest immunity.
NETTLE J: Ms Sharp, in principle it cannot be right because when a judge makes the determination of public interest immunity she or he balances the interests in having the evidence adduced against the interests of society in keeping it secret and ultimately makes a decision if the claim to immunity is upheld that notwithstanding the interests of having the evidence adduced it must remain secret. That is the end. That is the immunity. He or she has already taken into account whether the interests of justice are so compelling as to outweigh the interests of society in having the material kept secret.
MS SHARP: Yes, certainly, your Honour, there is great force in what your Honour is saying, which is why this Court may consider that the power is more appropriately located in the Court of Criminal Appeal’s inherent power, if it has one, or in the implied power if it ‑ ‑ ‑
NETTLE J: There is no inherent power to override the common law. I mean, the common law of public interest immunity is that once an immunity exists it is immune.
MS SHARP: I apprehend your Honour is saying that the inherent power would operate quite differently to public interest immunity if public interest immunity was applied.
NETTLE J: Well, what I think you are talking about is a change in the common law or public interest immunity to the effect that despite the determination that the interests of society in keeping the information secret outweigh the interests of the individual in having the information adduced, the judge could nonetheless exercise some sort of discretion and put in place powers that she or he thinks might be adequate to do the job and compel production.
MS SHARP: Yes, and this is ‑ ‑ ‑
EDELMAN J: It is not an immunity any more.
NETTLE J: Abrogates the immunity to that extent.
MS SHARP: Yes, your Honours, and this gives rise to the conundrum in this case because section 23 of the Crimes (Sentencing Procedure) Act requires the court to consider matters that, on one view of public interest immunity, would require be excluded and this is where there is a role for the exercise of the inherent or implied power to best consider how the procedures of the court can be moulded in the circumstances of the case to achieve the purpose of administration of justice.
NETTLE J: Would not the preferable view be that, in the balancing exercise in a determination of public interest immunity, it is in the interests of justice that the immunity be denied but that arrangements then be put in place to protect the confidentiality of the material?
MS SHARP: That might be so, your Honour, and that arrangements need to be put in place to protect the confidentiality of the material. One of the arrangements that may be put in place is to keep the evidence secret from one of the parties and there is a precedent for this occurring. Indeed, it happens in ‑ ‑ ‑
KIEFEL CJ: But you are only really looking at one area. You are looking at the area of maintaining secrecy. The court has other obligations. It has obligations to ensure procedural fairness. Now, if you are going to have any kind of analogy with public interest immunity, you would need the court to be looking at both areas, would you not?
MS SHARP: Yes.
KIEFEL CJ: And when you say about developing procedures around how both of those could, if possible, be accommodated - would that not be the correct approach?
MS SHARP: Yes, your Honour. That is why the procedure that we suggest would find favour in this case would be one which ensures that the evidence gets to the judge, which is aimed to maximise the sentencing discount given to the appellant, but at the same time protects the interests in, for example – and I am not saying anything about the specific circumstances of this case – making sure that the confidentiality of police investigatory techniques is preserved, that the interests of their safety and confidentiality of other informers is preserved, and a way of doing this in particular circumstances of the case may be to have evidence before the court which has not been seen by the accused or, in some cases – and they are very novel and exceptional cases – by the accused’s lawyers as well. There are precedents for this.
GORDON J: What is the precedent?
MS SHARP: Your Honour, every time a public interest immunity claim is adjudicated, the court sees evidence that is not made available to the other parties to the proceedings.
GORDON J: But that arises ‑ ‑ ‑
NETTLE J: That has nothing to do with a dispute.
GORDON J: Correct.
NETTLE J: That is just about the public interest immunity claim.
GORDON J: It is about an interlocutory matter determining an aspect. That is not about tendering of evidence leading to the determination of somebody’s right in a final hearing.
EDELMAN J: And often by a different judge.
GORDON J: Often by a different judge ‑ the very reason why we were so concerned seeing material here that the others had not seen.
MS SHARP: Yes, your Honour. I am using it simply as an example where there can be a case where evidence is tendered to the court in order, for example, to resist the production of a document which another party to the proceedings wants and that other party cannot see.
GORDON J: We have that in claims for legal professional privilege often.
MS SHARP: Yes.
GORDON J: Where the judges often look at the documents. That is not this aspect. It is a completely different context.
MS SHARP: Another example, your Honour, is that which is drawn from the protection of trade secrets, for example, where evidence is not made available to one of the parties because it might destroy the very right that is in dispute.
KIEFEL CJ: Or you restrict access to counsel.
MS SHARP: Yes.
KIEFEL CJ: You mould orders in this cases, often very refined orders with detailed conditions and undertaking about the circumstances in which and who may see the information and what basis they have to give the information back, when they are able to discuss it with their client, to what extent. All of these things are gone into.
MS SHARP: Yes.
KIEFEL CJ: But here there is just a decision on the part of the Commissioner that something has to be secret. There is no attempt here to mould any kind of process.
MS SHARP: Well, your Honours, can I answer that by taking your Honours back to the confidential court book, and showing your Honours one ‑ ‑ ‑
EDELMAN J: Just before you do.
MS SHARP: Yes, your Honour.
EDELMAN J: Are there any other examples that you have that are concerned with final hearings, other than trade secrets or wardship, where – as I think some of the judges in the House of Lords and the Supreme Court said – in relation to those two examples the disclosure would undermine, not some interest of a third party but it would undermine the very issue at stake between the parties themselves?
MS SHARP: Your Honour, there are a category of orders which I will call protective orders, and I will come back to that in a minute. But there is one proposition which we put in issue and it is the proposition that the appellant was not able to give instructions to her counsel in relation to this matter for the simple reason that the appellant knows what assistance the appellant provided and ‑ ‑ ‑
KIEFEL CJ: But you cannot know whether all of it, or some of it, is contained in the affidavit.
MS SHARP: But she still knows what assistance she provided.
GORDON J: She does not know what view the police take of it.
MS SHARP: In this case that was ameliorated to some extent by the fact that the Court of Criminal Appeal extracted what it described as the evaluative component of the confidential evidence ‑ ‑ ‑
GORDON J: Their view.
MS SHARP: ‑ ‑ ‑ and made that available.
GORDON J: Their view.
MS SHARP: Yes.
GORDON J: They had no idea whether that was a true view, whether it was understated.
MS SHARP: Well, your Honour, with respect, they do have some – the appellant did have some view as to whether or not it was understated because she knew what level of assistance she was providing to the Commissioner.
NETTLE J: It is just this, Ms Sharp. She may have known what she was doing, but she did not know what the police – or what significance and usefulness the police attributed to it. Only they can say that.
MS SHARP: Yes, and that evaluative component was made available to the appellant.
NETTLE J: The sentence that was written out?
MS SHARP: Yes.
NETTLE J: I see.
MS SHARP: Yes, your Honours. Coming back to your Honour Justice Edelman’s question about these kinds of orders, I did refer your Honour to what I would describe as protective orders. These are orders which are made, which do, to some degree, cut across what might be described as the right to confront one’s accuser. It has been held in certain circumstances that other interests are to be balanced with that and, as a matter of necessity, to protect the administration of justice, a protective order is made.
GORDON J: Do you mean by that an order whereby somebody gives evidence, using a pseudonym, is that what you mean by that?
MS SHARP: Yes, your Honour, so a pseudonym or a screening order or closing the court, your Honour, are all examples of these things happening.
GORDON J: In each of those cases, is it not the position that the accused hears the evidence? For example, there is an aspect of it, i.e. the identity of the person may be – the person may be given a pseudonym, but they themselves may know the name of the person, they may not.
MS SHARP: Yes. For example, to take the example of a pseudonym, one submission that is sometimes made is that if a witness gives evidence by a pseudonym then the public do not know who that witness is and they are not able to volunteer information to the accused which may assist the accused to confront their accuser. So that is an example, your Honour, where a balance is struck between what I might describe as the full right, the full scope of the right to confront one’s accuser and the protection of another public interest, for example, the protection of the confidential identity of an undercover operative. The point is, your Honours, that the inherent power of the court or the implied power of the court is used to mould the court’s ‑ ‑ ‑
EDELMAN J: Those protective orders are always made under a particular statutory provision, are they not?
MS SHARP: No, your Honour, with respect, they are not. They are sometimes made in the exercise of the inherent power or the implied power, and one good example of that, your Honour, is the case of BUSB which is in the joint book of authorities at volume – it is tab 14, your Honours, and this is BUSB v TheQueen (2011) 80 NSWLR 170. If I could just take your Honours through this matter, this was a case where the court had to determine whether there was power to make screening orders and could I take your Honours to page 437 of the authorities book, so at paragraph 24 and 25 of the judgment. This is dealt with as a matter of the implied power of a court rather than a statutory power in answer to your Honour Justice Edelman’s question.
EDELMAN J: An implied power is a statutory power. It is implied from the statute.
MS SHARP: Yes, I accept that but in this respect it parallels the inherent power, your Honour. Both for the implied power and the inherent power, the test is one of necessity, and I think in one of the judgments of Chief Justice Spigelman he referred to it as a test of double necessity when it comes to an implied power rather than the inherent power. But your Honours will see at the top of paragraph 28 of the judgment that:
The implied powers of a court are directed to preserving the ability of the court to perform its functions in the administration of justice –
And at 29 it is a question of “necessary implication”. Then, again at 34, that the:
implied power exists is to serve the administration of justice –
And at paragraph 83, it is of course acknowledged that:
The overriding principle is the right to a fair trial. What degree of impingement upon that right arises from a screening order will vary from case to case.
And so it is in the present case there were very particular reasons for the manner in which exhibit C was treated and in those very particular circumstances an exceptional power was called for, and called for to be exercised.
BELL J: Ms Sharp, accepting for present purposes the Commissioner’s concern about the disclosure of some of the material to the appellant, what do you say to the suggestion that an alternative course would have been for the material to have been furnished to Mr Jones on his undertaking not to disclose its content to his client?
MS SHARP: Your Honour, the submission could be put that there would be practical difficulties with that in the circumstances of the case. I would be happy to commit that submission to writing, to give you a more fulsome answer but that is as far as I can take it here.
KIEFEL CJ: I think we understand what you are saying.
MS SHARP: Thank you, your Honour. There is another way we put the power, and I will just briefly address on it because it is covered in our submissions. The third way is a statutory way. We say that ‑ ‑ ‑
EDELMAN J: Just before you get to that.
MS SHARP: Yes, your Honour.
EDELMAN J: The inherent power that you are talking about, you are not really suggesting that is any different from the implied power?
MS SHARP: No.
EDELMAN J: In other words, you are not relying upon the usual manner in which inherent power is referred to as the powers of the courts of Westminster that are inherited by the Supreme Court?
MS SHARP: Yes, I am speaking of the inherent power as the power to be used to ensure that the administration of justice is promoted and protected in the particular circumstances of the case. The third way, and I can be brief with this, is to say that there was a statutory source of power for what was done in this case, and that is the Court Suppression and Non‑publication Orders Act. And we say that this order was a suppression order under that Act. Can I take your Honours to the ‑ ‑ ‑
GORDON J: I thought you accepted that the statutory conditions had not been met?
MS SHARP: That they were not – your Honours, I do accept that the order in its form did not identify the matters that ought to have been identified as a requirement of section 8(2), which is that:
A suppression order or non‑publication order must specify the ground or grounds on which the order is made.
It did not specify one of the grounds in paragraphs 8(a), (b) or (c). Whether that invalidates the order is another matter.
BELL J: Judge [REDACTED] did not purport to be making an order under the Court Suppression and Non‑publication Orders Act.
MS SHARP: No order was made, your Honour, because an agreement was reached ‑ so no order was made.
KIEFEL CJ: Nor did the Court of Criminal Appeal.
MS SHARP: The Court of Criminal Appeal did make an order and I can take your Honours to that order. The order was expressed to be on the ground of public interest immunity.
KIEFEL CJ: Exactly, not under this Act.
MS SHARP: Yes, your Honour. I am locating ‑ and I do not say that ‑ this is why it was put on the notice of contention, your Honours. I do not say that it was made under this statute.
KIEFEL CJ: This was an available power.
MS SHARP: Yes, we say this was an available power, just as the inherent or implied power was an available power.
BELL J: So this requires construing the Court Suppression and Non‑publication Orders Act as conferring power on a court in the exercise of its criminal jurisdiction to suppress from a party to the proceeding evidence that it receives?
MS SHARP: Yes, that is precisely the submission we make and we say that submission is available on the terms of the legislation, if I could take your Honours to the terms.
BELL J: I take it you do not have any authority in support of your proposition.
MS SHARP: I do not, your Honour, but we rely on the express words or necessary intendment of the provisions. The first point is that a suppression order means something different from a non‑publication order. In that regard, the starting point is the definition of “publish” in section 3, which means to:
disseminate or provide access to the public or a section of the public by any means –
and then some inclusive examples are provided, and a suppression order appears to mean that but more.
BELL J: Why would one read the Act, which, on its face, is one might think evidently directed to the publication or other disclosure of information in court proceedings to, as it were, third parties? Why would one read it as authorising a departure from procedural fairness in the conduct of criminal proceedings?
MS SHARP: Your Honour, we say that that becomes apparent from section 7(b) of the statute which says that the court may:
prohibit or restrict . . . disclosure of:
. . .
(a) information that comprises evidence ‑
BELL J: Well, self‑evidently, in order to promote the objects of this Act, which includes preventing publication of evidence that is led in proceedings in certain circumstances, one sees a provision such as that one, but I come back to the question of why one would construe this as impliedly authorising a court in the exercise of criminal jurisdiction to proceed by denying procedural fairness to the accused.
MS SHARP: Your Honour, it does not authorise the court to proceed in that manner. It requires the court to safeguard the public interest and open justice in section 6 and it requires the court to take into account that the primary objective is to safeguard open justice and what follows from that is procedural fairness. But it recognises that that interest can be overridden in the particular circumstances of the case in section 8 where there are appropriate grounds for making a suppression order. One of those grounds is when it is necessary to prevent prejudice to the proper administration of justice and another of those grounds is where it is necessary to protect the safety of any person.
EDELMAN J: Do you accept that the principle of legality would include a convicted person’s ability to know the reasons for which that person is sent to gaol?
MS SHARP: I would be inclined to say yes, your Honour. That would be my inclination, but it will always depend on the particular circumstances of the case. That is perhaps such a stark example. But that is a world away from what is happening in this case.
EDELMAN J: When one looks at the legislation and interpreting its meaning is divorced from particular instances, would one not read it in light of principles of legality ‑ ‑ ‑
MS SHARP: Absolutely, your Honour.
EDELMAN J: ‑ ‑ ‑ such as an accused’s person’s desire to know the arguments that are raised against him or her and the reasons for which he or she is sent to prison?
MS SHARP: Yes, your Honour, and it would be very hard to imagine that there could ever be a ground available under section 8 when there is such a stark example as the example your Honour suggests. But this case ‑ ‑ ‑
EDELMAN J: Why would not one then construe section 8 as not to be dealing with circumstances of depriving an accused person of information that is relied upon against them?
MS SHARP: But, your Honour, this is not a case where information is relied upon against the interests of an accused person. This is a case where evidence was tendered in the interests of the accused person in order to
obtain a sentencing discount. That is one of the unique circumstances of this case.
Your Honours, can I end just by making one submission in relation to the question of procedural fairness or the question of practical injustice in the circumstances of the case. Can I do that by taking your Honours to the case of Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38. That is at tab 12 of volume 1 of the bundle of authorities. Could I take your Honours to one portion of his Honour Justice Gageler’s judgment at paragraph 192 ‑ ‑ ‑
BELL J: I am sorry, what paragraph number?
MS SHARP: Paragraph 192.
BELL J: Thank you.
MS SHARP: There, about halfway down that paragraph, which appears at page 332 of the bundle of authorities, his Honour said that:
There are then cases . . . where the usual practices of courts are adjusted to protect confidentiality at the heart of a right or interest in issue which would be destroyed . . . There are also instances in which specific evidence given to a court is withheld from a party to protect commercial confidentiality, to protect the safety of a witness or an informant, or for some other reason sufficiently supported by the interests of justice. All are examples of modifications or adjustments to ordinary procedures, invariably within an overall process that, viewed in its entirety, entails procedural fairness.
That is what we say occurred here. Viewed in its entirety, there was practical justice. There were some very specific reasons why the material was not disclosed [REDACTED]. The appellant was given an option and made an election. The evidence was tendered to promote her interests rather than in a way that was detrimental to her interests and in those overall circumstances there was no practical unfairness. Those are my submissions, unless there is anything else.
KIEFEL CJ: Yes, thank you.
MS SHARP: Thank you, your Honour.
KIEFEL CJ: Yes, Mr Game.
MR GAME: If the Court pleases. If I could just make a few points. The material before the Court of Criminal Appeal shows that the material before the District Court was wholly inadequate in describing what was actually happening in this case. The idea, as it were, that the offender, when sentenced, knew what assistance she had given, the fact that she neither could tell her lawyers about it or even see what the material was to refute it undermines the idea altogether that anything is to be gained from saying that she knew what assistance she had given. The sentencing judge’s own remarks indicate, obviously enough, that he did not have any understanding of the full nature of the circumstances.
Secondly, in Mr Kell’s submissions some submissions were made about confidential appeal book pages 24 to 36. Now, as I said, they throw a completely different complexion on the case. But we have no way of knowing what the Court of Criminal Appeal had regard to and the material in 24 to 26 would have been relevant to each of the issues but obviously, from our perspective, particularly discretion, that if one was sentencing it would have been relevant to that. If the court had not taken it into account, if it was doing so, it would have made things even worse.
Now, the submission was made by Mr Kell concerning our use of pages 35 to 36 of the confidential appeal book and we feed those back into grounds 2 and 3. But it needs to be understood that our arguments about procedural fairness and the resultant unfairness to us are both responsive to arguments put against us concerning things being said by consent and for our benefit. But they were also very deeply founded in what the Court of Criminal Appeal had before them about which we only were aware, in part, as of last Friday. But what we have to say about that can well be grounded in grounds 2 and 3, plainly enough.
The next responding submission I wanted to make is this. Mr Singleton said - and I will not go back to it - at the core appeal book at page 92, line 11 that a person needs to elect or “sometimes needs to elect”. Just as important or more important is what appears in the confidential appeal book that we have been to or heard from this afternoon at page 18 where the whole thing is described as if it is a practice. That is the practice that the court supports in its class claim. The idea that the vast majority people do not get to see the material, that accords with our understanding of the practice because they submit to that which is put to them. So that is what I wanted to say about that.
Now, this is a point that goes both to Mr Kell’s submissions and to Ms Sharp’s submissions, this idea of consent, and we say it is quite dangerous to build the idea of power around consent in a case such as this. Counsel had no real choice but both counsel – counsel was quite unaware of what the underlying problem was and was never informed of what the underlying problem was. So the three steps that Ms Sharp takes, the choice was given with legal advice, changed her mind, each of those founders when placed under analysis as to what actually happened.
If counsel had known the reasons for confidentiality, then counsel’s own position would have become tenuous in the case for the reasons that I explained obliquely before lunch but, as I say, can be seen if one posits the idea of Mr Dhanji finds out what the problem – and gets on the telephone to [REDACTED] if he had a case, as would counsel in the District Court.
There are just a couple of other propositions I wanted to put. In respect of the discretion point – and I think I made this point clearly enough before – it was said that the discretion point was dealt with by the Court of Criminal Appeal, but the only response was that we can work it out for ourselves, and that is no response to the actual deeper problem with respect to discretion.
On this point about timing I just wanted to add this, your Honours, that the stamped filed submissions of 20 June 2017, paragraphs 58 to 60, by Mr Dhanji - and his junior incidentally was Mr Jones – have a heading “The residual discretion” and they go on about the circumstances. They say it is for the appellant to persuade the court in the event that error is established and take the further step of intervening and CMB is identified: It is said that the matter proceeded below without exhibit C, unusual circumstance, a basis for refusing to intervene, particularly the case in the context of an appeal where the only issue is manifest inadequacy and further, no particular point of principle raised by the appeal.
So he has raised the issue clearly and when one properly understands those circumstances, this is not a situation of the kind that is put by Ms Sharp and is contemplated by the confidential affidavit we saw that the respondent, as it were, changed her mind. She was actually presented with a fresh set of proceedings. She did not change her mind. Counsel actually asserted a position which really had to be asserted, he completely unaware of what the underlying problem was.
I have just a couple of other remarks. In her submissions, Ms Sharp spoke about “inherent and implied” and we would say yes, there are implied powers in the District Court but there are no inherent powers and we say the Court of Criminal Appeal does not have inherent powers. It only has statutory ‑ ‑ ‑
NETTLE J: Statutory, yes.
MR GAME: So that is what I wanted to say about that. A last couple of points - those cases of Haralambous and Bank Mellat, Bank Mellat was in
the context of judicial review in the High Court of a regime that had statutory support for confidentiality and the question was there about how the Supreme Court stood in relation to that issue, not some other issue.
Then Haralambous raises an issue that in Australia we would find extremely curious because what it was about was that when - it was said that when the court saw the material the person who was challenging the search warrant was trying to get hold of, the confidential information in support of the search warrant, that therefore the parties were entitled to it. That happens all the time in search warrant cases where the applicant is saying improper purpose and it is trying to get hold of the information in support of the search warrant but there is a PII claim over that which the court makes a determination about.
But, as I say, the aggressive pose taken by the applicant is not the thing that triggers the disclosure. The thing that triggers the disclosure is a problem that emerges in respect of the material so then the court might exercise its discretion to allow its production and this happens every day in our courts and it is quite a different situation than the one contemplated here.
The last thing I wanted to say is this, that yes, we are – as I said, not only can we not get instructions but we are at an additional significant disadvantage and one can only assume that really important information in relation to the person of interest is that which we are being kept from and so you see, for example, on page 35, there is a big part and it is all about the person of interest.
I do not know whether your Honours need this book but the parts that are marked up are the parts, as I understand it. So we say the appropriate order of the Court is appeal upheld, appeal to the Court of Criminal Appeal dismissed. If the Court pleases.
KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 9.45 am.
AT 3:32 PM THE MATTER WAS ADJOURNED
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