Katsuno v The Queen

[1998] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M7 of 1998

B e t w e e n -

YOSHIO KATSUNO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 1998, AT 2.31 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with MR O.P. HOLDENSON, for the applicant.  (instructed by Hale & Wakeling)

MR N.T. ROBINSON:   If the Court pleases, I appear with MR R.T. BARRY, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

GUMMOW J:   We thought we would hear from you, first, Mr Robinson.

MR ROBINSON:   If your Honour pleases. It is submitted, your Honours, that the use of the information in challenging the jurors did not give rise to a breach such as to give rise to special leave and is not in breach of section 80 of the Constitution or Chapter III generally.

GUMMOW J:   I think the point, as I understood it, perhaps put slightly differently, comes to this, though, that these were Commonwealth offences. Section 80 of the Constitution applied. There was an indictment. The trial was conducted in a State court. The State court was a court to which section 68 of the Judiciary Act applied to pick up the relevant State laws.  On the face of it, the relevant State laws, namely this particular statute, the Juries Act, does not allow for this sort of executive activity, therefore there was not a trial in conformity with what the Judiciary Act itself requires because it just picks up, as it were, the State statute law and not with executive embellishments, and in any event if the Judiciary Act did otherwise pick up State law with executive embellishments, the Judiciary Act itself would be doing something which went beyond what was required by section 80.

MR ROBINSON:   It is submitted, your Honour, that in respect to - - -

GUMMOW J:   Now, what is the answer to that?

MR ROBINSON:   The answer to that, it is submitted, your Honour, is that the trial by jury envisaged in section 80 has always recognised the procedural entitlement to the Crown to stand aside or, in certain States, to challenge with peremptory challenge and that necessarily where the stand aside right existed that the Crown were, in those circumstances, entitled and required, indeed, when standing aside a juror, if the panel was exhausted, to show cause at the exhaustion of the panel. It follows, accordingly, that the ability of the Crown to have information for the purpose of standing aside and/or challenging a juror would not be in breach of section 80 and, accordingly, if that is so then in respect to the - as your Honour Justice Gummow has put it - embellishment of information being provided, it is submitted that that, whilst within terms of the Juries Act, would not be in fact in breach of Chapter III.

GUMMOW J:   No, no, no, that is not really the question.  The question is what does Commonwealth law permit as an element of State law in this activity, and it permits State law and that which is permitted to the executive under State law and this does not seem to be.

MR ROBINSON:   It is submitted that the construction of the - - -

GUMMOW J:   That is what the Parliament of the Commonwealth picks up, conscious as it is of section 80.

MR ROBINSON:   Yes, your Honour, and it is submitted that the construction of the Juries Act as put forward on behalf of the applicant was held by the Court of Appeal below not to be a proper construction and that the - - -

GUMMOW J:   That is a question, yes.

MR ROBINSON:   Yes.  I do not know, your Honour, that I can take it any further than that.

GUMMOW J:   Now, at page 103 of the application book there is a reference to what was said by Chief Justice Brennan on an earlier occasion.

MR ROBINSON:   Yes, that is in the applicant’s - - -

GUMMOW J:   Yes, 3.17 on page 103.  That case was said not to be a suitable vehicle because the prosecutor had not adverted to the police information.  That is not so here, is it?

MR ROBINSON:   No.

GUMMOW J:   And that distinguishes this case.

MR ROBINSON:   It does, yes.

GUMMOW J:   Yes, all right.

MR ROBINSON:   If it please the Court.

KIRBY J:   There is a lot of old law on this, is there not?  The Crown can always - is it not called array, the Crown can just go out and grab people off the street?

MR ROBINSON:   Yes, pray tales your Honour.  In this State it is pray tales.

KIRBY J:   Yes.  You can just go out and grab whoever happened to be passing by as long as they were not disqualified people like lawyers.

MR ROBINSON:   Yes, your Honour, though the panel here, of course, was selected in unimpeachable fashion.  If it please the Court, I do not know that I can take it further.

GUMMOW J:   Yes, thank you, Mr Robinson.

KIRBY J:   Is the only point that you are seeking to argue, Mr Grace, the point that Justice Gummow identified at the beginning because that is the only point that would seem to attract special leave to appeal?

MR GRACE:   Yes.

KIRBY J:   We do not want to be going into all sorts of nooks and crannies of the case when you come up to Canberra.

GUMMOW J:   We do not want this to invite the exercise of ingenuity on your part to find nooks and crannies with other grounds.

KIRBY J:   Now, where is the ground that is limited to the ground that Justice Gummow identified in your grounds of - - -

GUMMOW J:   Page 76, is it?

MR GRACE:   Page 74, your Honours:  2.1 and 2.2.

GUMMOW J:   They are incomplete in the sense that they do not give any significance to the circumstance that the Juries Act only applies and the law of Victoria only applies because the federal law says so.  So, they need some adjustment to reflect that.

MR GRACE:   Yes.

GUMMOW J:   It may be implicit but it is not explicit.

MR GRACE:   Yes.  Leave is sought to make that adjustment.

GUMMOW J:   Yes.  Well, what about 2.3?

MR GRACE:   We rely upon what is set out in the written submissions in support of that ground and we say no more about that ground.

GUMMOW J:   We are not minded to allow 2.3.

There will be a grant of special leave in this matter limited to grounds 2.1 and 2.2 appearing at page 74 of the application book but with leave to amend to reflect the sense of what has been said in the exchange between counsel and the Bar table.

MR GRACE:   If the Court pleases.

GUMMOW J:   The Court will adjourn to reconstitute.

AT 2.40 PM THE MATTER WAS CONCLUDED