HT v The Queen & Anor

[2019] HCATrans 139

[2019] HCATrans 139

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

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 25 JUNE 2019, AT 9.35 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear with 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 with MS E.S. JONES for the first respondent.  (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))

HIS HONOUR:   Well, Mr Game?

MR GAME:   We have two documents that I just wanted to provide to your Honour.  One is the list of orders that are currently orders made by the Court of Criminal Appeal.  The other are some orders made by the Court of Criminal Appeal following a bail determination.  If I could just hand those two documents to your Honour.  They do cover some – so I should just add to that, your Honour, the appellant is now on bail and there is a provision in our Bail Act that says that if there is a pending appeal in the High Court that the Court of Criminal Appeal can make a bail order, so she is on bail now.  So a number of the orders sought are actually covered by existing orders.

HIS HONOUR:   Orders sought by?

MR GAME:   The second respondent.

HIS HONOUR:   Yes.

MR GAME:   There are two summonses – they are not our summonses – before you today, your Honour, and can I just say in respect of the summons seeking an extension to file submissions we do not have a problem with a short extension, but we have a problem with the dates sought because I am leaving the country on 7 July, my junior is leaving the country on the 14th and she does not get back until September, I do not get back until the end of July, so that would make it impossible for us to do the submissions.  But if the timetable was extended to the middle of next week – sorry, to the middle of the week after 28 June, we could get our reply done in two or three days.

HIS HONOUR:   Have you spoken to each other about that, Mr Game?

MR GAME:   Yes, we have, but they do not seem to agree with us.  So we are consenting to an extension, but not the extension that they are seeking.

HIS HONOUR:   All right.  I am sure with some more discussion you can come up with an acceptable date.

MR GAME:   Yes, your Honour.  So I would just say that in respect of the more detailed summons from the second respondent, some of those orders are already covered, but we do have an issue ‑ ‑ ‑

HIS HONOUR:   You say they are unnecessary?

MR GAME:   Some of them are unnecessary, yes.  But, your Honour, the critical one – so first of all if you look at order 1, there is a problem with us being given exhibit C and the problem with that is that there is an extant order of the Court of Criminal Appeal that keeps it confidential from us.  That is at page 125 of the appeal book.  One of the orders we seek on the appeal is that the orders, including that order, be set aside.  So that order can actually only be set aside by the Full Court on the appeal.

So, unless there was a split hearing, at the moment we do not see a way in which we can see exhibit C unless orders are set aside of the Court of Criminal Appeal, and that is because section 21 of the Judiciary Act makes the only power of the Court is a Full Court to make that order.  So we do not see that we can be given exhibit C until that order which appears at page 125 of the appeal book is set aside.  The second problem ‑ ‑ ‑

HIS HONOUR:   Just a moment. 

MR GAME:   So, if your Honour goes to 125 of the appeal book.  On the hearing of the appeal an order was made that we not see exhibit C, said to be on the grounds of public interest immunity.

HIS HONOUR:   Yes.

MR GAME:   Then our orders at 136, ground 1 is that we were denied procedural fairness or that they erred in denying us – not procedural fairness – that the court erred – that goes to power.  The orders sought under 3 include an order that that order of 28 June be set aside.  Now, the problem with your Honour making an order that we see is that that involves setting aside the order made by the Court of Criminal Appeal on 28 June.  Under section 21 of the Judiciary Act it means that you do not have power to make that order because only a Full Court ‑ ‑ ‑

HIS HONOUR:   Yes.

MR GAME:   The other problem with all of this is this, your Honour, that if we get into a full‑scale argument about what did or did not happen and what we could or could not have done, section 73 of the Constitution as interpreted in Mickelberg and Eastman means we cannot put on evidence before you on the hearing of the appeal as to what we might have done if we had seen it.  So there is a procedural aspect to this and it gets quite complicated.

HIS HONOUR:   Yes.  Let us take it in stages.  The order made by the Court of Criminal Appeal that appears at page 125 of the appeal book is inherently interlocutory, is it not?

MR GAME:   It is, your Honour, except that it becomes – it does not matter, I do not think, your Honour, because the reference in the Constitution is to orders.

HIS HONOUR:   I understand the power of this Court is that ‑ ‑ ‑

MR GAME:   That was interlocutory except it became part of the ultimate judgment, which is we never see the document.

HIS HONOUR:   Yes.  What I am suggesting, Mr Game, is that it would be possible, would it not, to approach the Court of Criminal Appeal for an order by consent that the concluding words of order 2 that appears at page 125 be omitted, that is, and not made available to counsel for the respondent.

MR GAME:   Yes, I think the Court could make that ‑ ‑ ‑

HIS HONOUR:   Yes.

MR GAME:   The Court could probably make that order.  But the second thing about all this, I think you do not have the power to set aside that order.

HIS HONOUR:   I accept that, but there would be nothing stopping the parties from approaching the Court of Criminal Appeal for a variation of the order.

MR GAME:   Yes, but it would kind of have to be without prejudice to our ground 1 of appeal because one has the sense that there is a hint of taking away our appeal by showing us the document.  But there is a separate issue which is this, that sitting behind the summons is a letter from the second respondent’s solicitor seeking undertakings and the effect of the undertakings – we would not give those undertakings in these circumstances because they prevent us from showing any of the documents to the client, so that is a problem and we would not at this stage of the proceedings ‑ regardless of what may have happened below, we have a significant issue about being required to give an undertaking as sought in their summons.  

HIS HONOUR:   I see.  The undertakings are referred to.

MR GAME:   In the summons in 1(e) it says, “undertakings sought by the solicitor”.

HIS HONOUR:   Yes.

MR GAME:   So those undertakings you can see in a letter – you do not have this letter, but we do obviously.

HIS HONOUR:   Yes.

MR GAME:   So we could not at this stage of the proceedings – and it may have been different in the Court of Criminal Appeal – but we do not see how we can give those undertakings since they require us not to show the documents to our client, because that then puts us in a quite difficult position in the hearing of the appeal and it means we would never get instructions and at the moment we do not have any instructions about any of this, so it is a problem and we are kind of in a very strange relationship with our client because of all of this being conducted in this way.

HIS HONOUR:   Yes.  Mr Game, leaving aside the question of whether you have access to exhibit C and to the other confidential affidavits that were before the Court of Criminal Appeal, how do you see the appeal proceeding so far as the Court is concerned?  Are we to have a confidential appeal book that includes this material?

MR GAME:   Well, we would say other than exhibit – sorry, first of all, not the affidavit of Mark Jenkins sworn 7 June 2019 for the reason – and that could only ever be admissible in interlocutory proceedings before your Honour.

HIS HONOUR:   Yes.

MR GAME:   It cannot be before the Court on the appeal.

HIS HONOUR:   I understand that.

MR GAME:   So we have no problem – if you look at paragraph 1, we have already got in the list there – we have already got B.  We do not have C.  One was called a class claim; that was B.  We do not have C.  So, your Honour, the Court would have those two affidavits but, as we envisaged it, until the Court had determined the question of power, it might be unwise for the Court to actually view exhibit C.  But if the court came to the view that the Court did have power – the Court of Criminal Appeal – then things might change.  But if you had the document – but sorry, can I say this, it may depend on whether or not we get to see the document actually.

HIS HONOUR:   Well, it would be very odd if in an appeal under section 73 of the Constitution we do not have the material that was before the Court of Criminal Appeal.

MR GAME:   If we have it, then that changes.

HIS HONOUR:   The “we” in that sentence being you?

MR GAME:   Yes, I am pointing to myself, sorry.  May the transcript show I pointed to myself.  So yes, that is correct, your Honour, that is true, but as I say, there is a terrible problem here which is that on the hearing of the appeal we are not going to be able to put on evidence about what we may – we get to see the document for the first time, but we cannot say to you – we cannot put on evidence on the appeal.

HIS HONOUR:   Of course not.

MR GAME:   So it is just the record.

HIS HONOUR:   It is the record.

MR GAME:   Yes, it is just the record.

HIS HONOUR:   The record needs to be before the Court; the whole of the record.

MR GAME:   Yes.  So, yes, but one could not – yes, your Honour, but if we do not – that is to say, the appellant – does not see exhibit C, then there is a strange position in the Court, which is we do not have the record but the Court does.

HIS HONOUR:   That really arises from the strangeness of the nature of the proceedings I think, Mr Game.  It is inevitable.

MR GAME:   Yes.  We have been in this case in one form or another for two years now, so it is only after special leave after the appeal – after we have put on our submissions that we are told we can see the material.

HIS HONOUR:   Yes.  So you are being offered the material and you have ‑ ‑ ‑

MR GAME:   We are being offered the material but we are cautious about ‑ ‑ ‑

HIS HONOUR:   You have two difficulties.

MR GAME:   Sorry, yes, we are just cautious about the circumstances in which it comes to us.

HIS HONOUR:   Yes.

MR GAME:   Also, as I say ‑ ‑ ‑

HIS HONOUR:   So let me just understand, your problems are:  one, the form of the undertaking.

MR GAME:   Yes.

HIS HONOUR:   Two, the existing order of the Court of Criminal Appeal?

MR GAME:   Yes.

HIS HONOUR:   Is there anything else?

MR GAME:   Well, three is the one that I just had an exchange with your Honour; that is, that we are not disadvantaged or put in a different position on the hearing of the appeal, but that will probably sweep aside – that is in answer to your Honour’s question as to whether or not you, the Court, has exhibit C – sees exhibit C in a confidential book.

HIS HONOUR:   I really do not see any option but for the Court to have exhibit C ‑ ‑ ‑

MR GAME:   Understood, your Honour, yes.

HIS HONOUR:   ‑ ‑ ‑ and in fact to read exhibit C in advance of the hearing, Mr Game.

MR GAME:   Certainly, your Honour.  So then it really is the two problems that I have mentioned.

HIS HONOUR:   Yes.

MR GAME:   Then could I just say this.  In the second respondent’s second order that they seek, that second order, there is no problem with that.  That is in the appeal book 27 to 31 and 34 to 76.  But we think that is probably already covered by the orders made by the Court of Criminal Appeal recently on the bail hearing.

HIS HONOUR:   I see.

MR GAME:   Then the third order they seek is – again, this is another oddity of this whole case, which is that affidavit of 13 July, we have never seen that affidavit and our endeavours to see it have been unsuccessful, yet that affidavit was tendered and was made available.  We do not know what has happened, but we have never seen that affidavit.  That affidavit should go in the confidential book as well, your Honour, but as yet we have not seen it.  But again, we could not give undertakings that prevented our client from seeing that document as well.

HIS HONOUR:   Are you talking about order 3?

MR GAME:   Yes, your Honour.

HIS HONOUR:   I do not think it is referring to an affidavit ‑ ‑ ‑

MR GAME:   Yes, it is, your Honour.

HIS HONOUR:   ‑ ‑ ‑ of 13 July.

MR GAME:   Sorry, I do not know whether it is of 13 July, but what it is, is it is yet another document.  So yet another document that went before the Court of Criminal Appeal, not being any of those other documents that you have seen.

HIS HONOUR:   It is not a reference to exhibit C?

MR GAME:   No, it is yet another document.

HIS HONOUR:   I see.

MR GAME:   So, as I say, there are even more affidavits that you probably do not want to trouble yourself with, but there is one more – so with respect to number 3 ‑ this is sounding like a shaggy dog story ‑ with respect to number 3, that should go in the confidential book.  We were not actually constrained from seeing it, but we have never seen it and our endeavours to find it have been unsuccessful to date.  So that should deal with these matters except that – anyway, except for the two matters that your Honour raised with – articulated in the exchange with you.

HIS HONOUR:   Mr Game, is the form of the undertaking an insurmountable barrier?

MR GAME:   Well, we do not see how it could be – it makes it difficult for us to – there is one qualification of this, which is what I said at the outset, which is we cannot put on an affidavit on the hearing of the appeal.  We could only put that on in a procedural interlocutory sense.

HIS HONOUR:   It is the nature of an appeal.

MR GAME:   Yes.  So at least we see it – but we do see a real problem in us not being able to disclose those documents to our client and we do see a problem in us giving an undertaking that prevents us from doing so.

HIS HONOUR:   It might be a problem.  I am asking – and I do not want to drive you to a position – but in circumstances where the questions arise on an appeal, there is no question of seeking to obtain instructions for the purpose of leading any further evidence.  The problem may not be as grave as it would be at a different state of the proceeding.

MR GAME:   It may not be, your Honour, but we feel that it drives us into a position where we cannot say was there other assistance, is this accurate, is this inaccurate?  So my answers to questions that the Bench asks me on the appeal would be hypothetical as opposed to on instructions but not supported by evidence, I think is the situation.

HIS HONOUR:   The order sought in paragraph 1(e) ‑ ‑ ‑

MR GAME:   Subparagraph (b)?

HIS HONOUR:   Subparagraph (e), I would not read as requiring you to take the documents, but really as an exception to the prohibition contained in the chapeau of the order.  What I am saying is if I were to make this order in these terms or perhaps slightly modified terms, you would have the option of taking up the offer if you were so instructed.

MR GAME:   Yes, but that would mean that the part at the very end of the sentence in (e) would be something that might change.

HIS HONOUR:   Yes.

MR GAME:   That might be a subject of further negotiations as to what actually happens.

HIS HONOUR:   Yes.

MR GAME:   There is something a little bit oppressive about making an order that as we know at the moment prevents us from doing something, but if that order is made then obviously we will abide by it.

HIS HONOUR:   What do you mean by that?  What would it prevent you from doing?

MR GAME:   What I mean is, if you make the order in (e) then obviously enough we will abide by it.  That is to say – but I am not promising that we will give the undertaking that is sought.

HIS HONOUR:   What I am suggesting ‑ ‑ ‑

MR GAME:   That is to say, I am not promising that it will actually come into effect.  That is what I am trying to say, sorry.

HIS HONOUR:   I understand.  What I am saying about the order in (e) is it operates by way of exception.

MR GAME:   That is correct, your Honour, on that understanding then that ‑ ‑ ‑

HIS HONOUR:   Yes, and you do not have to abide by it.

MR GAME:   Yes, that is right.

HIS HONOUR:   You do not have to take up the permission that would be granted to you.

MR GAME:   All right.  Well, that is pretty much what I wanted to say, your Honour.

HIS HONOUR:   Yes, thank you.

MR GAME:   I wonder just one thing is I know these transcripts are all – but I just wonder whether or not it is appropriate for transcripts like this to go up on the website.

HIS HONOUR:   Has anything been ‑ ‑ ‑

MR GAME:   Nothing has arisen from the last – nothing that I am aware of, so I cannot say anything has arisen.  But as the conversation gets more explicit, but anyway that is – sorry, there is one other thing I ‑ ‑ ‑

HIS HONOUR:   Well, let me say I am loathe to make the transcript confidential.

MR GAME:   I will leave it, your Honour.  There is just one last thing I should mention before I sit down.  In paragraph 1(d) of the summons, that affidavit has actually already – was served on us, and then it turns out it was served on us – it was served on us with an email, but it was served on us with some requests to do or not do certain things, and then it turns out that it should not have been served on us and we have returned it.  So at the moment – we did have it, but we do not have it now, for what that is worth.

HIS HONOUR:   Thank you.

MR GAME:   Another weirdness about this case.

HIS HONOUR:   Yes.

MR GAME:   Thank you, your Honour.

HIS HONOUR:   Mr Kell, do you have anything to say about this?

MR KELL:   Subject to your Honour, it might be appropriate for me to go after the second respondent.  It is dealing with their summons.

HIS HONOUR:   Yes, thank you.  Ms Sharp.

MS SHARP:   Yes, I do have some things to say, your Honour.

HIS HONOUR:   Yes.

MS SHARP:   Firstly, I will be circumspect in what I say because this is an open hearing.

HIS HONOUR:   Yes.

MS SHARP:   There is certainly a great novelty about this case and there are certainly questions of the protection of confidential information in the public interest.

HIS HONOUR:   Yes.

MS SHARP:   We have given careful consideration to what we can do to facilitate the hearing of this appeal, your Honour, and that is why we have sought the orders in the form that we have.  The proposition that the appellant’s legal representatives now having access to exhibit C in some way undermining the current appeal is not a sustainable proposition, your Honour.  The facts remain as they were.  The fact is that at the time of the Court of Criminal Appeal hearing, they did not have access to exhibit C and nothing in the current orders changes what happens in the past. 

However, your Honour, as the affidavit of Assistant Commissioner Jenkins would demonstrate, there has been a very significant change in circumstances and that is why it is now considered possible to disclose that material on a confidential basis to the legal representatives of the appellant, but not to the appellant.  Your Honour, it is difficult to do this in open court, but I can indicate what the change of circumstance is if I can take your Honour to the confidential ‑ ‑ ‑

HIS HONOUR:   I do not think it is necessary, Ms Sharp. 

MS SHARP:   Yes.

HIS HONOUR:   I understand the point.  My principal concern is to ensure that the Court on the appeal has an appropriately assembled record protected by appropriate confidentiality orders either made by this Court or by another court, and my concern is to facilitate the conduct of the appeal by at least giving to Mr Game the option of having access to the same material that will be before the Court as part of the record.  That is what I want to achieve.

MS SHARP:   Yes, thank you, your Honour.  That said, your Honour, we would object to the legal representatives of the appellant showing the material to the appellant, in the same way that happens in many trade secrets cases, your Honour.

HIS HONOUR:   Yes, I understand, and that gives rise to the form of the undertakings that you seek.

MS SHARP:   Yes.

HIS HONOUR:   I understand that.  Now, can we just concentrate on the material that formed part of the record or formed the record before the Court of Criminal Appeal and that should form the record here.

MS SHARP:   The record, yes.

HIS HONOUR:   Do I understand that is within your summons of 7 June, paragraphs (a), (b) and (c) of paragraph 1?

MS SHARP:   That is so, yes.  The purpose of (d) was to alert the Court to the change of circumstance, being why we now feel comfortable to seek an order in these terms.

HIS HONOUR:   Yes.  So, together with the judgment of the Court of Criminal Appeal which itself remains confidential ‑ ‑ ‑

MS SHARP:   Yes.

HIS HONOUR:   ‑ ‑ ‑ the documents referred to in subparagraphs (a), (b) and (c) of paragraph 1 of your summons should be included in a confidential appeal book?

MS SHARP:   Yes, as should the document referred to in paragraph 3, being the second affidavit. 

HIS HONOUR:   That was also part of the record before the Court of Criminal Appeal, was it?

MS SHARP:   Yes, and that is made plain ‑ your Honour, the terms of the judgment are currently confidential, but reference is made specifically to that document at paragraph 128 of the reasons.

HIS HONOUR:   I see.  All right.  Is there anything else that should be in the confidential appeal book?

MR GAME:   There is another affidavit of the same date.

MS SHARP:   There was also ‑ at the time the claim was made to preserve the confidentiality of exhibit C, one open affidavit was relied upon too.  That is obviously not covered by this application because it is open, but that was the open affidavit of John Kerlatec and that will go ‑ I will just check if that is already in the ‑ your Honour, it is already in the core appeal book.

HIS HONOUR:   All right.  So the confidential appeal book will need to have five documents I think.

MS SHARP:   Yes, your Honour.

HIS HONOUR:   All right.  I am going to send you away at the end of our discussion, Ms Sharp, to draw up a single set of proposed orders ‑ ‑ ‑

MS SHARP:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ in consultation with Mr Game. 

MS SHARP:   Yes.

HIS HONOUR:   I do not necessarily expect his agreement.  The first order should identify the documents that are to be included in a confidential appeal book.

MR GAME:   Yes, but we say that the affidavit of Mark Jenkins of 7 June should not go in that book because it is not part of the record.

HIS HONOUR:   I agree, and I think Ms Sharp is agreeing, Mr Game.

MS SHARP:   Yes.

HIS HONOUR:   Very well.  Then there is the question of facilitating access.  I am not inclined to wish to be prescriptive in any order I make as to the form of any undertaking that would be acceptable to the parties and I would wish to make it abundantly clear in the order that the ability of Mr Game and others mentioned in the proposed paragraph (c) to gain access to the documents operates only as an exception to the prohibition.  The problem of the existing order of the Court of Criminal Appeal is I think something that could be dealt with by approaching that court for a variation.

MS SHARP:   Yes, and in fact that was one thing I had intended to flag with your Honour, that it will be necessary for us to approach the court to vary its order.

HIS HONOUR:   Yes, all right.  Is there something more we need to discuss?

MS SHARP:   Not in relation to these confidentiality orders.

HIS HONOUR:   All right.  What else is there to deal with then, apart from the confidentiality orders?

MR KELL:   Your Honour, there is just the timetabling issue, but if we are coming back before your Honour we could deal with that then.

HIS HONOUR:   Yes.  It would be very useful for you to have some discussions about that.

MR KELL:   Yes.

HIS HONOUR:   Do I need to be any more specific about what I expect to be in a single set of proposed orders?

MS SHARP:   No, your Honour.

MR GAME:   No, your Honour.

HIS HONOUR:   All right, very well.  How long do you need?  What if I give you until 11.00 o’clock?  Would that be appropriate?

MR GAME:   That is fine.

HIS HONOUR:   Very well.  All right, I adjourn until 11.00 o’clock.

AT 10.03 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.00 AM:

MS SHARP:   Your Honour, may I hand up some typewritten draft orders.

HIS HONOUR:   Thank you.

MS SHARP:   These orders are agreed, your Honour.

HIS HONOUR:   I will just take a moment to read them, Ms Sharp.  I am prepared to make those orders.

MS SHARP:   If it please the Court.

HIS HONOUR:   I do not think I will read them out.  I will make the orders that are contained in the document which I will initial and date today and place with the papers.

MR GAME:   Thank you, your Honour.

MS SHARP:   If it please the Court.

HIS HONOUR:   Thank you very much.  The Court will now adjourn.

AT 11.02 AM THE MATTER WAS CONCLUDED