HT v The Queen

[2018] HCATrans 251

[2018] HCATrans 251

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

Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 30 NOVEMBER 2018, AT 9.30 AM

Copyright in the High Court of Australia

MS G.E.L. HUXLEY:   Your Honour, I appear for the applicant in the special leave application and the respondent to the summons.  (instructed by Maria Walz Legal)

MR D.T. KELL, SC:   May it please the Court, I appear with MS E. JONES for the respondent to the special leave application, who is the applicant on the summons today.  (instructed by Director of Public Prosecutions (NSW))

HIS HONOUR:   Mr Kell, Ms Huxley, I have read the summons filed on 14 November this year, the affidavit of Steven Thomson filed the same day, the application for special leave filed on 3 October, the response of the Crown filed on 14 November, the applicant’s reply of 21 November, the reasons of the Court of Criminal Appeal of 17 July 2017 and the submissions of each of the applicant and the respondent in respect of this application dated 28 November 2018.  Is there any other material that I should be looking at?

MS HUXLEY:   No, your Honour.

MR KELL:   No, your Honour.

HIS HONOUR:   Mr Kell, if I might ask you, is it your position that the Commissioner is needed as a party to argue that the CCA’s decision of 28 June, that is the decision to deny the applicant access to Exhibit C on the ground of public interest immunity, was correct?  Now, I ask that question because it is not at all apparent to me that the application for special leave raises any question as to the correctness of that decision, not least because that decision was made on 28 June and the only challenge that is made by the applicant is to the orders of 17 July.

MR KELL:   Yes, your Honour.  We say that, and hopefully this answers the question, the applicant indicates that the application and proposed appeal do not involve any further exploration of the issues concerning access to Exhibit C, the confidential material. 

HIS HONOUR:   Yes.  As I understand it, and Ms Huxley can correct me if I am wrong – and so can you, obviously – it is said that that decision having been made the issue then is whether the denial of access to Exhibit C was, though correctly made, an unacceptable impediment to the determination, or the fair determination, of the Crown’s appeal to the Court of Criminal Appeal or perhaps it may be put that it was itself a sufficient reason to dismiss the Crown’s appeal having regard to the special considerations that attend Crown appeals.  Am I right in my appreciation of what you think is the case you have to meet on the application for special leave?

MR KELL:   Yes, we would appreciate it in those terms but subject to this, which is that the question of whether access should have been granted to Exhibit C and therefore whether it was an unacceptable impediment and the like cannot be divorced, we say, from the question of whether it was procedurally unfair to withhold access to Exhibit C.  That brings into account the strength and cogency of the material, Exhibit C, that ‑ ‑ ‑

HIS HONOUR:   It is not immediately apparent to me why that would be so.  Any balancing as to the claims of justice in this case as against the claims of public interest immunity, any balancing of that sort, that falls to be determined when the court upholds the claim to public interest immunity and makes its order for a denial of access.  That order was either wrong or right in the circumstances but there is no challenge. 

So far as one understands it and as I say Ms Huxley can correct me if I am wrong on this, but there is, so far as I can see, no challenge to that order.  The only question then remains is that in circumstances where such an order is sought and made on a Crown appeal, the making of such an order, even if rightly made, is an impediment either to the fair determination of the appeal or is a circumstance that warrants the dismissal of the appeal of itself.  Now, if the grounds of the application are so confined I have to say I find it difficult to understand why submissions to the effect that the Court of Criminal Appeal was right to uphold the claim for public interest immunity matters.

MR KELL:   Your Honour, we would say that – and I am just looking at the grounds, where grounds 1 and 2 of the application for special leave and the application itself proceed on the basis that the applicant was denied procedural fairness.  That is central to what is advanced.  That goes to ground 1 and ground 2, the denial of procedural fairness afforded to her at the hearing.

HIS HONOUR:   But they are not saying that the circumstances in which access to Exhibit C was denied render that order bad for procedural unfairness.

MR KELL:   No, but from our perspective whether the applicant was denied procedural fairness is a – we say the applicant was not denied procedural fairness because of a determination where there was a valid – sorry, a public interest immunity claim was upheld and orders made by the Court of Criminal Appeal and in those circumstances – and that does not have the consequence that procedural fairness has been denied but that it has been fairness being a matter that relates to circumstances, that it has been excluded or modified – sorry, does not mean it has been excluded but

it has been varied or modified in the circumstance and that the applicant had a sentence hearing according to law.

HIS HONOUR:   You might be right about that.  Chief Justice at Common Law Hoeben said as much in that his Honour said that the significance of the assistance that had been provided by the applicant was a matter on which the Court of Criminal Appeal could make up its mind and no doubt it could be understood that his Honour in saying that took the view that it was a matter on which the Court of Criminal Appeal could fairly make up its mind.

MR KELL:   Yes.

HIS HONOUR:   I wonder if it might assist if I heard from Ms Huxley as to whether I do apprehend the applicant’s case for special leave aright.  Would that be appropriate, Mr Kell?

MR KELL:   Certainly, your Honour.

HIS HONOUR:   Thanks.  Ms Huxley, it is not pellucidly clear but it seems to be tolerably clear I think that your side are not challenging the order to deny access to Exhibit C. 

MS HUXLEY:   Correct.

HIS HONOUR:   You are not saying that that order was wrongly made.

MS HUXLEY:   No, your Honour, we are not challenging the making of that order and your Honour has, with respect, correctly characterised the case for the applicant on the special leave application.  It is also the applicant’s case, as your Honour has recognised, that regardless of the weighing process involved in considering whether public interest immunity applies or the fairness of the proceedings, the consequence of procedural unfairness is nevertheless relevant to the exercise of jurisdiction and the matters raised by the discretion under section 5D of the Criminal Appeal Act.

HIS HONOUR:   All right.  Thanks for that.  Mr Kell, is there anything you want to say in support of your summons?

MR KELL:   Yes, just responding to what was said by Ms Huxley and referring to it being a consequent procedural unfairness – denial of procedural unfairness, whether it is a consequent denial of procedural unfairness and the extent of it cannot be, we say, divorced from Exhibit C and the cogency and strength of that material because fairness is essentially a practical concept.

HIS HONOUR:   It certainly is, but you are in a position at the moment, given what Ms Huxley has said – you are in the position that the application will fall to be determined on the footing that it will be accepted that the court’s order denying access to the Exhibit C was correctly made.  That was a correct order.

MR KELL:   Yes.

HIS HONOUR:   The question then is what is the significance of that for the Crown appeal?  At the moment, as I say, I am having difficulty seeing why it is necessary for the determination of that application for this Court to be concerned with the strength or otherwise of the arguments that were put in relation to the denial of access on the ground of public interest immunity.

MR KELL:   Your Honour, I do not want to go round in circles and so I will not, but an acceptance by the applicant that the order denying access to Exhibit C was properly made may be accepted of course and that necessarily limits the applicant’s case in what it can advance.  To proceed on that assumption still raises a question as to what – when one is assessing denial of procedural fairness what is the strength that the court should assign to the public interest, the competing public interest which was the public interest upheld by the PII claim, a public interest that material not be provided to the then applicant.

We would accept that the course that was taken by the Court of Criminal Appeal here might not be a course that could be taken in every case, that is denying an applicant material and proceeding in the way it did.  But that may not be a course that could be justified in every case and whether it would be justified and whether it could be justified here would depend in significant part upon the cogency and strength of the material underpinning the PII claim, being Exhibit C and the like.

If one moves to the question of power so that – and it is alluded to in the applicant for special leave’s submissions as to whether or not the Court has power, inherent power to make an order of the type sought here, it may be that if the Court has to grapple with that issue and issues arising from it, the Court would – and the respondent, for example, the Crown, would say well that proposition that there is no power to proceed on the basis of evidence which is not permitted to be provided to a party in circumstances such as these, there could not be a blanket rule about that and at the very least, notwithstanding the applicant’s submissions, there would be exceptional circumstances or something to that ‑ ‑ ‑

HIS HONOUR:   As to that argument, surely that is an argument that the Crown can advance itself and it does not need to have two people telling us about that.

MR KELL:   But the difficulty, the practical difficulty, your Honour, is that we do not have access to Exhibit C and the confidential affidavits, that is the legal representatives ‑ ‑ ‑

HIS HONOUR:   No.  I can fully understand you are not in a position to say that the considerations that would have weighed with the court in making the order to deny access, I can certainly understand that you are not in a position to argue that, but in a sense your side, speaking of your side broadly, you won on that issue that in this appeal – in the appeal in the CCA the Court of Criminal Appeal accepted that the other side should be denied access on the basis that weighing up all relevant considerations, including inevitably the need for a fair hearing of the appeal, the claims of public interest immunity were overwhelming.

Now, you won on that.  What I am saying to you is I am not understanding why it is necessary for the fair determination of the application for special leave that your side should join the Commissioner of Police to come along and tell us that it was right that you won when no one is saying that it was not.

MR KELL:   In a sense the applicant is avoiding the issue by asserting there is a denial of procedural fairness and proceeding on that basis.  It relates both to the – his ground 2 raises to the discretion in section 5D, the residual discretion of 5D of the Criminal Appeal Act.  We are in a position where we, the Crown which does not have access to the documents and cannot assist the Court with the cogency and strength of the competing considerations, is not meaningfully able to make submissions as to the extent of the procedural fairness by reference – the extent of the alleged procedural fairness by reference to the competing public interest which is the cogency and strength of the claim.  That feeds into the mixers to, under section 5D, the residual discretion which is the complaint raised by ground 2.

There is a practical difficulty arising from that as well.  Just going back to finish the point I was making about the power in exceptional circumstances, if the matter proceeds and the applicant is contending that there is no power for the Court, which it is alluding to, there is no power for the Court to proceed on the basis of secret evidence or whatever the description they have attributed to that is prevented from being provided to a party, we submit at the very least there would be exceptional circumstances or the like when the Court could do so in its inherent power ‑ ‑ ‑

HIS HONOUR:   Yes, I am not saying anything to the contrary.  What I am asking is why it is that you cannot make those submissions?

MR KELL:   Because, your Honour, we cannot say and in this case – we cannot meaningfully beyond looking at the transcript and judgment, we cannot meaningfully say your Honour should look at Exhibit C and the confidential affidavits and from that you would readily arrive at a conclusion that in the particular circumstances there was no denial of procedural fairness or that this clearly is an exceptional case where a contention about power should not lead to the appeal succeeding ‑ ‑ ‑

HIS HONOUR:   At the moment I do not understand that the applicant raises any contention that would involve inviting this Court to look at Exhibit C.

MR KELL:   That might be so, but it might be that the respondent – the fair determination of the matter is that the Court should look at Exhibit C and of course the Court of Criminal Appeal did – to determine, for example, whether this case would fall into an exceptional circumstances where the argument about power would not – if accepted nonetheless this would be an example of a case where exceptional circumstances would prevail such that an appeal would not succeed. 

Just on the practical aspects, and I am flagging ahead for your Honour, as we understand it Exhibit C and the confidential materials, associated confidential affidavits are part of the, as I understand it, the court holdings of the Court of Criminal Appeal.  We do not have access to them.  We cannot put them before the Court whether, if now or at a later time, the Court needs and wants to have access to the material and is – we cannot do that.  There are orders made by the Court of Criminal Appeal that Exhibit C be kept confidential. 

The party, the person who has a particular interest in the documents and who advanced the public interest consideration in the Court of Criminal Appeal was the Commissioner of Police.  We do not understand that, for example, this Court would of its own motion take steps to obtain that material from the Court of Criminal Appeal if it arrives at a view that it needs to look at the material.  So there is an additional practical reason as to why it would be appropriate for the Commissioner of Police to be joined as a party to the application, we submit.

HIS HONOUR:   Thanks, Mr Kell.  Is there anything else you want to say?

MR KELL:   Otherwise we rely on the matters in the written submissions, your Honour.

HIS HONOUR:   Thanks, Mr Kell.  Ms Huxley, is there anything you want to say in relation to what has just been said?

MS HUXLEY:   Your Honour, I just need to clarify something about whether the applicant challenges the correctness of the order made by the Court of Criminal Appeal on 28 June.  We do raise, in our special leave application, a submission that denying a party to substantive proceedings access to an exhibit or admitted evidence does involve whether there is a power of the Supreme Court to do that in these circumstances of the applicant’s case. 

However, in my submission, the Court does not need to examine or need submissions on the contents of Exhibit C to resolve the question of whether the power exists and the applicant accepts that if the power is found to exist, then the weighing process conducted by the Court of Criminal Appeal, having regard to the contents of Exhibit C, is not open to challenge and is not challenged by the applicant.

HIS HONOUR:   I am just a little concerned by what you first said.  You will be aware that so far as this morning is concerned you would appreciate I think from what has been said that one would have a different view of Mr Kell’s application if it were the case that in the application for special leave it were to be suggested that the decision to deny access was itself erroneous, having regard to the effect it might have on the hearing of the appeal.

MS HUXLEY:   Yes, your Honour, and that is why I thought it important to clarify the applicant’s position.

HIS HONOUR:   I have to say it is not at all apparent from your application that there is a challenge advanced in relation to the decision of 28 June.

MS HUXLEY:   Your Honour, I can indicate we do not seek an order quashing that order, nor do we seek access to Exhibit C in this Court.  We do not challenge the Court of Criminal Appeal’s conclusion that in weighing the various interests public interest immunity favoured that material not being disclosed to us, but there is an aspect to the applicant’s argument which is there is a real question as to whether a court is able to deny access to evidence that has been admitted in the proceedings on the basis of public interest immunity.  It is not necessary for the applicant to succeed on the proposed appeal to make good that contention.

HIS HONOUR:   But is it intended to advance that submission?  Is it intended – I mean let us pretend we are not just doing the shadow boxing. 

Is it going to be part of your side’s argument that the decision to deny access was itself erroneous because of the circumstance that the denial of access was occurring in the course of the hearing in the CCA?

MS HUXLEY:   Yes, your Honour.

HIS HONOUR:   You do propose to argue that?

MS HUXLEY:   That is an aspect of the context in which we say we were denied procedural fairness.

HIS HONOUR:   Okay, thank you.

MS HUXLEY:   So I cannot concede that it will not be any part of our argument in the proposed appeal.

HIS HONOUR:   What you have said I think is enough to assist me to the view that I should take.

MS HUXLEY:   Your Honour, can I also indicate that in my submission the question of whether there does exist a power does not involve consideration ‑ ‑ ‑

HIS HONOUR:   No, no, I understand that. 

MS HUXLEY:   Thank you.

HIS HONOUR:   I understand that, but you want to have two arguments, not just one and Mr Kell says that in relation to one of those arguments the joinder is necessary to enable the matter to be argued properly.

MS HUXLEY:   Yes, your Honour.

HIS HONOUR:   Because you want to have two arguments, he says he needs help in relation to one of them.

MS HUXLEY:   Yes, your Honour, and the applicant’s submission is that it is not necessary for the Commissioner to be joined to provide those ‑ ‑ ‑

HIS HONOUR:   I understand, I have read your submissions.  Thank you.

MS HUXLEY:   Thank you, your Honour.  I have nothing further.

HIS HONOUR:   I will give some short reasons.

The Crown as the respondent to a pending application for special leave to appeal has filed a summons dated 14 November 2018 seeking an order that the New South Wales Commissioner of Police (“the Commissioner”) be joined in the application for special leave as a responding party. 

The applicant for special leave to appeal pleaded guilty in the District Court of New South Wales to a number of offences against the Crimes Act 1900 (NSW). A Crown appeal against sentence to the Court of Criminal Appeal of New South Wales (“the CCA”) was successful in that the applicant was resentenced by the CCA to a longer term of imprisonment.

The applicant seeks to contend in this Court that she was denied procedural fairness at the hearing of the Crown’s appeal and that as a result the higher sentence imposed on her by the CCA should be set aside.  The denial of procedural fairness is said to have occurred when the CCA acceded to a motion by the Commissioner, based on a claim of public interest immunity, to deny the applicant access to material tendered at her sentence relating to the nature and extent of the applicant’s co‑operation with the authorities.  This material may for convenience be referred to as Exhibit C.

In the CCA the Commissioner appeared by counsel at the commencement of the hearing of the appeal and moved, successfully as it emerged, for the denial of access.  The Crown, while generally supportive of the Commissioner’s position, made no submission in relation to the denial to the applicant of access to Exhibit C.

In the Crown’s response to the application for special leave it is said that the respondent’s legal representatives, in respect of the application for special leave to appeal, have not seen and do not have access to Exhibit C or to the confidential affidavits provided to the CCA by the Commissioner in support of the application to that court.  Accordingly, it is said that the Crown is not in a position to make submissions about the considerations that weighed with the CCA in upholding the Commissioner’s claim to public interest immunity as those considerations are matters properly to be agitated by the Commissioner.

In support of the application for joinder it is said that the joinder will enable the decision of the CCA in respect of the claim for public interest immunity to be supported by argument that counters the criticisms that are to be expected to be levelled at that decision by the applicant. On that basis it is said that rule 21.05 of the High Court Rules 2004 (Cth) applies so as to allow a court or a justice to order that any person whose presence in the proceeding is necessary to ensure that all questions in the matter are effectually and completely determined be joined as a party. The Commissioner consents to the proposed joinder.

The applicant opposes the joinder arguing that it is for the Crown and no one else to represent the community in the issues between the Crown and the applicant in her application for special leave to appeal against the sentence imposed by the CCA.  It appears that the applicant seeks to contend that the application for special leave will involve a question as to whether the denial to the applicant of access to Exhibit C was not warranted in the circumstances of the case.  That being so, the present application falls to be determined on the footing that, first, the question of public interest immunity was not raised by the Crown in the CCA; secondly, it is the Commissioner who had responsibility for the assertion of the public interest immunity and that it is not inappropriate that the Commissioner be heard in support of the CCA’s decision in that regard.

That being the case, however, does not mean that there is the sort of divergence between the position of the Crown and that of the Commissioner in relation to the public interest immunity issue that would lead this Court to refuse the order for joinder.  It is understandable that the Crown disavows any interest in seeking to sustain the Commissioner’s position in relation to the denial of access upon upholding the public interest immunity.  The merits or otherwise of that position have nothing to do with the substantive issues between the Crown and the applicant, even though the decision of the CCA to uphold the Commissioner’s claim of public interest immunity was apt to constrain that process in relation to the Crown’s appeal against sentence.  In addition, the applicant has identified no particular prejudice likely to ensue to her from the joinder.

In the circumstances I am satisfied that the interests of justice favour the joinder of the Commissioner and that rule 21.05 permits that course in order to ensure that this Court would have the benefit of argument in support of the decision of the CCA to deny access to Exhibit C to the applicant on the basis of public interest immunity. Accordingly, I make orders in terms of paragraphs 1, 2 and 3 of the summons filed on 14 November 2018. I would propose to order, subject to argument, that the costs of this morning be costs in the application for special leave. Is there any argument about that?

MS HUXLEY:   Your Honour, can I just indicate no one has sought costs in the application.

HIS HONOUR:   Given that it is an application in a criminal proceeding?

MS HUXLEY:   Yes.

HIS HONOUR:   Very well.  There will be no order as to costs.

MS HUXLEY:   Thank you.  May it please the Court.

HIS HONOUR:   Thank you.  Adjourn the Court.

AT 10.02 AM THE MATTER WAS ADJOURNED