HT v The Queen

[2019] HCATrans 75

[2019] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S259 of 2018

B e t w e e n -

HT

Applicant

and

THE QUEEN

First Respondent

NEW SOUTH WALES COMMISSIONER OF POLICE

Second Respondent

Application for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 APRIL 2019, AT 9.46 AM

Copyright in the High Court of Australia

MR T.A GAME, SC:   If the Court pleases, I appear for the applicant 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))

GAGELER J:   We do not want to dissuade anyone from putting any argument that they wish to against the grant of special leave, but we do feel it is appropriate to indicate that we have a strong preliminary disposition towards granting special leave to appeal in this matter.  We have some difficulty, Mr Game, with your expression in a very truncated form of the first ground of your proposed appeal.  I think it is couched at the moment simply in terms of procedural fairness or natural justice.

MR GAME:   Yes, your Honour.  I was going to say this at the end, but I am going to have to say it at the beginning, which is that if your Honours grant us special leave we would seek to amend to basically have a ground that seizes at the point at which the refusal to have access to the material is given, so that the court erred in refusing access to Mr Dhanji to the material.

GAGELER J:   Yes, it seemed that that was the gravamen of your complaint.

MR GAME:   So we were feeding that into the denial of procedural fairness, but there is a separate antecedent question that is important.

GAGELER J:   It may be a particular ‑ ‑ ‑

MR GAME:   Yes, it has to be identified as a separate argument.

GORDON J:   I think it needs to be a separate argument.

MR GAME:   Yes, it needs to be identified as a separate antecedent argument.

GAGELER J:   Yes.

MR GAME:   We were also thinking – obviously we thought about this before, that that ship had kind of sailed so, yes, but we think on reflection – and our reply has shifted to an argument about whether or not the procedure was permissible in the first place.

GAGELER J:   Yes.

MR GAME:   So, yes, we do seek to amend but ‑ ‑ ‑

GAGELER J:   Have you formulated the ‑ ‑ ‑

MR GAME:   I just formulated it then, but the ground would be that the court erred in refusing access to the respondent to the material in Exhibit C at the hearing of the Crown appeal.

GAGELER J:   Yes.

EDELMAN J:   Would ground 2 still be relied upon?

MR GAME:   Yes, your Honour, because say the material could be received, there are still questions about whether or not the procedure that was adopted could be fair in the circumstances and discretionary reasons relating to the bringing of a Crown appeal in circumstances where one did not have access to this material.  So there are ‑ ‑ ‑

GORDON J:   Can I just for my part say that I think that ground 1 is really directed at the legal issue of the actual question of what legal basis are we dealing with, whereas what would now become ground 3 is dealing with criminal appeals at large.

MR GAME:   Yes, your Honour.  So, yes, we do see that there is a separate question.

EDELMAN J:   How would we deal with what is now ground 3 without the material?

MR GAME:   Well, we are the ones that have not got to see the material.  The courts have had – but we have never been in a position to say whether or not we dispute whether what is in it is correct or whether or not the assessment is correct or whether or not the court’s assessment of it is correct.  So there are those three aspects to the material.

GORDON J:   There is a fourth, is there not?  That is the legal basis upon which it was treated.

MR GAME:   That is right, that is the first so, yes, your Honour, so ‑ ‑ ‑

GAGELER J:   Is an element of – and this may be just a variation on a theme – but is part of your complaint about want of procedural fairness one which follows from the denial of access to the material, that is, you were given insufficient particulars of the material, or is that not part of it?

MR GAME:   The denial of procedural fairness has different aspects but, your Honour, we were unable to engage – first of all there is what I might call the principled position about the unfairness of the process where on the one hand this appeal has been brought against us but on the other hand we are not able to fully respond to it.  But then there is the detailed kind of response which is that one of the parties is – it is no good for the court to say, “Well, we assessed the material for ourselves”, because the three things that I just put to Justice Edelman all kind of have all strikes.

So, say one started at the reverse point which is the ultimate sentence that was imposed; we never got to make a submission about how the discount would be dealt with there, nor did we get to make a meaningful submission about the question of discretion both in the general sense in which I speak and in the particular sense of the actual contents of the material.  Then there is the question of whether or not when you have an appeal about manifest access, which is what does one make of the sentencing judge’s conclusions about it.  So there are those different levels which ‑ ‑ ‑

GAGELER J:   Well, you brought a motion of some sort seeking access to the material ‑ ‑ ‑

MR GAME:   Yes.  So what happened was – you do not have the transcript, but what happened was – and we for some reason only have one copy of the judgment that was handed around ‑ ‑ ‑

GAGELER J:   But you sought access. 

MR GAME:   Yes.  That was denied.

GAGELER J:   That was denied and one of your complaints about want of procedural fairness is that denial of access.

MR GAME:   Yes.

GAGELER J:   Really, my question was do you have another complaint, perhaps a fallback complaint, that having been denied access you were given insufficient particularisation of what the material was?

MR GAME:   Yes, your Honour, but our fallback position – yes, that could be a fallback position, but our fallback ‑ ‑ ‑

GAGELER J:   You were told something about it, but not very much.

MR GAME:   Yes, but all we were told about it was that what the respondent had to say was treated as reliable and truthful and there was a little bit that was in the remarks on sentence by the trial judge that actually should not be in your application books apparently, but ‑ ‑ ‑

GORDON J:   Can I ask something particular about that?

MR GAME:   Yes.

GORDON J:   At paragraph 72 of the Court of Criminal Appeal’s reasons of the Chief Justice at Common Law, the last line of that paragraph identifies the basis upon which it was put.

MR GAME:   That was said to be a class claim and what a class ‑ ‑ ‑

GORDON J:   Can I be even – be more fundamental and direct?  How is it – I can find no authority where you can make a claim for public interest immunity, which is usually against non‑disclosure, and have it produced to the Crown and then to the court.

MR GAME:   There is no authority that supports that.

GORDON J:   So where do we find that in the grounds of appeal?

MR GAME:   Well, if you give us leave, that is going to be the ground ‑ ‑ ‑

GORDON J:   Number 1?

MR GAME:   One, yes.  So that we expect that that – so what the UK Supreme Court case of Al Rawi says is that public interest immunity is no basis for this.  So we say that this whole line of reasoning just does not run, but there were no reasons given for disposing of – except for that.  All you find then is what is at 105 and then the disposal of the thing at 120.  So neither in the rejection – so you have got 72 to 75 ‑ ‑ ‑

GAGELER J:   Mr Game, you do not really have to do this.  Really we are asking you to focus on teasing out the elements of your ‑ ‑ ‑

MR GAME:   Okay, so I think if your Honours give us leave to amend in the form I have just said, I think we can put all the arguments we need to put on the hearing of the appeal.

GAGELER J:   But in response to Justice Gordon’s question I think you indicated – perhaps it is a jurisdictional point, perhaps it is a power argument, but it does seem to be another way of putting it.

MR GAME:   Yes, your Honour.  Well, I was proposing to ‑ ‑ ‑

GORDON J:   You do not have to adopt it, Mr Game.

MR GAME:   I was proposing that that would be argued as part of the argument because it works like this, that things are put up – so we say there is no power to do it, and then things are put up against us, like inherent power which we say does not run, PII which does not run, section 130 of the Evidence Act which does not run, suppression of material, so ‑ ‑ ‑

GORDON J:   I think the point I am trying to get at, there seems to be at least an arguable confusion between public interest immunity and its operation and effect, suppression, confidentiality ‑ ‑ ‑

MR GAME:   Yes.  Well, we will have to draw those arguments out, but I still think that ground 1, if you give us leave, should be sufficient.

GORDON J:   Can I ask one other practical question and that is this.  As I read the judgment, there were four affidavits provided to the court of which you had access to two.

MR GAME:   There were three, and we did not have access to one of ‑ ‑ ‑

GORDON J:   There is another one referred to at paragraph 128 that seemed to be provided to the court by the police with the consent of the Crown.

EDELMAN J:   Or is 128 referring to the further affidavit, the third further affidavit?

MR GAME:   It is an additional affidavit which we do not think we have ever been given.

GORDON J:   Yes.

MR GAME:   We cannot see where it was provided.

GORDON J:   I think it was provided after the hearing.

MR GAME:   Yes. I am just wondering if your Honours – I am sorry, I will just put this to your Honours, whether or not we should put on a motion with respect to our amended grounds, but if your Honours are content to give us leave to amend to include ground 1, then we would be content with that.

GAGELER J:   Mr Game, how would this appeal run?  What material will we be looking at and what material will you have?

MR GAME:   Well, you would have material that we do not have so presumably you would be provided with Exhibit C and the confidential affidavit.

GAGELER J:   Would you be saying anything about whether we should look at that material?

MR GAME:   You would have to look at the material to hear our appeal, yes.

EDELMAN J:   Why, on the legal points that you raise ‑ ‑ ‑

MR GAME:   You do not need to look at it – you do not need to look at it for our point – for that ‑ ‑ ‑

EDELMAN J:   So the only basis on which we would need to look at it is essentially if a materiality‑type issue is raised by the respondent?

MR GAME:   Yes, just to understand what it is that is – so, as I say, we do not – because we have not seen it we have never been in a position to even comment on its accuracy.

EDELMAN J:   So basically we would then be looking at material in circumstances in which your very complaint is that the lower courts had engaged in that very exercise without you having had the opportunity to look at it.

MR GAME:   We are not trying to trap you, if that is the ‑ ‑ ‑

EDELMAN J:   No, I am not ‑ ‑ ‑

MR GAME:   It would be a good trick if it worked but the – no, we are not trying to trap you, but it is just what position you are in, and you have to - exercising your powers under section – if you grant leave, then you will be exercising your powers under section 37 of the Judiciary Act and you have to put yourself in the same position as the Court of Criminal Appeal was, which is to see everything that they saw and no more, because of fresh evidence ‑ ‑ ‑

GAGELER J:   All right.  Mr Game, we might see what your opponents have to say.

MR KELL:   It feels a slightly different application from what it was when we walked up this morning.

GAGELER J:   Did you have difficulty dealing with it in the notionally amended form, Mr Kell?

MR KELL:   Yes, and I will deal with it ‑ ‑ ‑

GAGELER J:   We have the morning if you need some time.

MR KELL:   No, that is fine, your Honour.  So I will deal with it – we say that the primary question which is now sought to be raised seems to be one essentially of power and we have something to say something about that.  But could I just answer one matter that your Honour Justice Gordon had raised about that fourth affidavit.  My instructions are that that was a – this is at paragraph 128 of the CCA judgment – that that was an additional statement or affidavit that had been sought by the applicant and had been provided following that request.  But I am not sure that – I do not believe the applicant saw it but it was at her request, so if I could just indicate that.

On the question of power, the primary question from which now it seems the other ones flow, in our submission this is not an appropriate vehicle, the main reason being that one can – if one accepts that there may be power in exceptional circumstances for a court to mould its procedures such that depending upon the strength of a PII claim and other factors – and I will come to the other factors – that in very exceptional circumstances a court can proceed to receive and have regard to evidence that is confidential to at least one more of the parties, if that is the position, we say that is what your Honours would be looking at here, and I will come to the factors.

GAGELER J:   But would it be public interest immunity or would it be a different conceptual basis on which the Court would be proceeding?

MR KELL:   It flows from public interest immunity, so the initial step – and again until a few minutes ago there was no challenge to the determination of the Court of Criminal Appeal dealing with a finding of public interest immunity and how to mould its procedures having regard to the particular public interest immunity at stake and the particular exhibit and evidence.

GORDON J:   Do you know of any authority where there has been a claim for public interest immunity, which is usually non‑disclosure of documents at all, which has then led to the production of material to the court and not to the respondent?

MR KELL:   There are cases, yes.  There are some cases that have proceeded on that basis.  They are referred to – and there is a question as to whether that is linked to the inherent power of the court and/or the Evidence Act procedure.

EDELMAN J:   It is a different immunity though, is it not?  It is not the same immunity - I think even on your submission it is not the same immunity as one is usually concerned with, with public interest immunity.  It is a different immunity but perhaps also based on the public interest.

MR KELL:   Yes.  We would say ‑ ‑ ‑

GORDON J:   It does not find its grounding in public interest immunity.  It finds its grounding in the fact that the Crown wishes to adduce evidence which has attached to it some aspects which require protection, and that may be by crafting of orders, whether under the Evidence Act or otherwise, for the protection of that information by confidentiality orders, suppression, limited disclosure to particular people and only particular people.  There is a whole range of moulding that is done in order to make good and to meet that challenge.  It has not happened here.

MR KELL:   Well, it has happened in the sense of the orders made.  If one looks at application book 44, that is the order that was made on 28 June before the oral hearing – the oral submissions.  So the Commissioner of Police had sought orders based on public interest immunity.  The court then in a public interest immunity claim is of course balancing different aspects of the public interest which is obviously the public interest in producing the material and having it available, as against the public interest in protecting the material. 

But the former, which is the public interest in producing and having the material available, brings into play the importance of open justice and also whether – and it was considered here – whether the respondent would be – the extent and whether the respondent would be prohibited, or a party is prohibited in advancing the case that it seeks to do because it does not have access to particular material. 

The resulting determination by the court which is recorded in application book 44 is upholding a public interest immunity claim and as a part of that, so the one and the same exercise, moulding its procedures, that is, that Exhibit C be kept confidential and not made available to counsel for the respondent.

GAGELER J:   You were making submissions earlier, Mr Kell, about this being an inappropriate vehicle to consider these issues.  I do not think you developed that.  Why is this not the case to do it?

MR KELL:   Because, assuming the matter proceeds and is dealt with by the Court, the holding of the Court on a question of power, which is the primary question now being raised, would be yes or no, that there is power in these peculiar idiosyncratic circumstances which is material that had initially been put forward where the applicant was content and consented to it not being part of the material before the sentencing judge – sorry, consented to her not having access to material that then became part of the court record.  So there is a question of consent. 

There is also the question – the idiosyncratic circumstance.  The evidence that was put forward was for and presumed to be for her benefit, so it was evidence dealing with assistance to authorities.  So that is the second peculiar circumstance.  The third peculiar circumstance is that it arises in a case where it can be inferred, including from the paragraphs of the CCA judgment, that it was a strong and powerful PII claim, and that can be inferred by the references to the class and also the fact of the orders having been made.

The view taken by the Crown, in our submission, was at least in those – putting to one side the general question of power, at least in those exceptional peculiar circumstances, the court would have an inherent power – and perhaps also the Evidence Act – to mould its procedures to deal with this particular circumstance.  But it is inappropriate because it does not of itself lead to any greater holding as to whether there is a power beyond those idiosyncratic circumstances, in our submission.

GAGELER J:   Thank you.  Is there something further?

MR KELL:   I otherwise rely on the written submissions in relation to what might be called the non‑primary grounds.  Thank you, your Honour.

GAGELER J:   Thank you.  Ms Sharp.

MS SHARP:   I have little to say.  The approach of the Commissioner has been neither to consent nor oppose the grant.  Your Honours are correct to identify two separate streams, if I may put it that way:  a question of where there is power to make protective orders, as we say this properly was; or a power to adduce a public interest immunity claim which ultimately is a doctrine of exclusion, and that is not what has happened here.

What has happened here though is not uncommon and a quintessential example of that is the case where a public interest immunity application is being considered and the court considers the evidence in support of that application on a confidential basis, so there is evidence that is not made available to the other parties.  In that sense, a protective order is being made which we would say lies in the implied or inherent jurisdiction as is relevant and is governed by a test of necessity.  That is all I wish to say about the substantive argument.

GORDON J:   That is very different though from – that analysis and that approach of the courts is very different when one is now faced with, having determined that claim, what one then does with the material.  It is the merger of two ideas.  The first is, “I’ve made a claim for public interest immunity”, which is a non‑disclosure claim which ordinarily leads to non‑disclosure to anyone and the Crown not relying on it, full stop; versus this situation where there has been a merger of that application with an acknowledgement and understanding that they are actually going to rely upon it and give it to the court.  Now, they are two very different ideas, two different very different legal concepts requiring different considerations, are they not?

MS SHARP:   Your Honour, we accept that they are two different ideas.  We do say there was power in the circumstances of this case to make the order that the Court of Criminal Appeal made, but we do accept they are two different ideas, your Honour, and I do not wish to be seen to be advancing ‑ ‑ ‑

EDELMAN J:   In other words, the second one might not even be an immunity at all.  It cannot be a public interest immunity if it is not an immunity.

MS SHARP:   Yes, I use the language of “protective order”, but that is right, it might not be – probably is not an immunity at all.  Your Honours, may I be heard on a procedural matter in the event that special leave is granted.  There is of course a question of whether your Honours will wish to see the material, being the open affidavit, the two confidential affidavits and Exhibit C, which was the affidavit of assistance, and in a sense once your Honours see that in a situation where some of the parties do not see that material, the very same questions arise that will be arising on appeal.  So there are some difficult issues to work through here in terms of what interlocutory application ‑ ‑ ‑

EDELMAN J:   Do you accept that in the absence of either of the respondents raising any issue of materiality that we would not need to see the material to answer the legal questions?

MS SHARP:   I think that is right, if there is no issue about materiality.

EDELMAN J:   There is no issue that has to this point been raised about materiality, is there?

MS SHARP:   Well, it is difficult to say because the matter changed complexion quite significantly about 15 minutes ago, so I would not want to make a concession without considering that.  It may be that materiality is a factor in approaching the question of whether there was power in this case to make an order preventing certain parties from seeing the material, because we would say that the test to be applied is a test of necessity and ‑ ‑ ‑

GORDON J:   That necessity requires consideration of a number of factors:  the subject matter of the material; who might see it; whether you can craft an order that limits it to particular people.

MS SHARP:   That is precisely the case, your Honour, so I cannot tell your Honours that it would not be relevant to see this material in deciding what I might call the power question.

GAGELER J:   So what you are suggesting is that there may be argument on the appeal about the ability or propriety of us looking at the material at all.

MS SHARP:   Yes, it seems it would travel together.

GAGELER J:   The best course would probably be to have a special directions hearing once the notice of appeal is filed where we can discuss these issues and how they might be managed.

MS SHARP:   Yes.

GAGELER J:   Thank you.

MS SHARP:   Could I raise one final matter, which is it appears that some information has been reproduced at page 33 of the application book which really ought not be there.  If I could direct your Honours’ attention to the heading commencing “The Suppression” and then down to about line 32.  I do not know how that information has come to be in this document, but it is the subject of a suppression order.  What I would seek to do – and I have liaised with my learned friends – is request this Court to make a suppression order over that material as it appears in the application book.

GAGELER J:   I am very reluctant to make such an order on the run without some understanding of the extent to which this may have been published already.

MS SHARP:   Yes, and unfortunately despite my inquiries I have not been able to get to the bottom of it, your Honour.  I am just particularly concerned about the information at line 29.

GAGELER J:   If the parties are agreed, the page can simply be removed from the document, can it not?

MR GAME:   We think it is covered by the existing order.  We think it is actually covered by existing orders but ‑ ‑ ‑

GAGELER J:   Is this something we could deal with in a directions hearing that I am suggesting we have?

MR GAME:   Yes, your Honour, you can deal with it in a directions hearing.

MS SHARP:   Yes, it is, your Honour.

GAGELER J:   All right.  There will be a grant of special leave to appeal in this matter on the expanded basis indicated by Mr Game in argument.

MR GAME:   If the Court pleases.  Can I just say one thing?  Having heard the argument and the exchanges with the Bench, we think that the Court should reserve looking at the material until it has heard both written and oral argument about the subject, so that it does not land in a position where difficulties are created that were unintended.

GAGELER J:   Mr Game, once your notice of appeal is filed, we will call a directions hearing and we can be very clear about how the appeal is going to run.

MR GAME:   Thank you, your Honour.

GAGELER J:   Thank you.

AT 10.14 AM THE MATTER WAS CONCLUDED