Khazaal v The Queen

[2015] HCATrans 261

[2015] HCATrans 261

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S75 of 2015

B e t w e e n -

BELAL SAADALLAH KHAZAAL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2015, AT 9.29 AM

Copyright in the High Court of Australia

MR P.D. LANGE:   Your Honours, I appear on behalf of the applicant.  (instructed by Lawyers Corp Pty Limited)

MR P.W. NEIL, SC:   For the respondent, may it please the Court.  (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ:   Yes, Mr Lange.

MR LANGE:   Your Honours, the applicant requires an extension.

FRENCH CJ:   Is that objected to?

MR NEIL:   No objection.

MR LANGE:   Grateful to my friend.

FRENCH CJ:   You have the extension.

MR LANGE:   Thank you, your Honour.  Your Honours, this application raises, in my submission, two matters of fundamental public importance, the first being the question which has vexed many judges personally, both this Court and also other courts, as to what are the limits that can be placed upon functions performed by judges outside of their judicial office.  The second question, in my submission, arises as a result of an argument put forward by the respondent in its summary of argument as to the admissibility of certain evidence at this stage where the Court is acting not in an original jurisdiction but rather in an appellate capacity.

It was said in Wilson’s Case, on which I of course place considerable reliance – the case of Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 – that the demarcation between permissible extrajudicial functions and impermissible ones is a difficult one and must be approached on a case‑by‑case basis and I think your Honour the Chief Justice said as much more recently in Wainohu’s Case. 

The starting point must therefore be the function performed by Justice McClellan, which I contend is incompatible with his judicial office, and in making this argument it is only necessary for me, in my submission, to deal with the position of his Honour in concurrently performing those two functions.  I say “concurrently” because of the chronology of events which is set out in the applicant’s summary of argument at page 368 of the application book at paragraphs 4, 5 and 6, where the Court will observe that after this Court had remitted the matter for determination of the applicant’s sentence appeal after the successful Crown appeal, there were various steps taken involving the filing of written submissions at various stages. 

As is pointed out in the written submissions, the appointment of Justice McClellan is one which took effect on 11 January.  I do not believe your Honours have actually been provided with a copy of the document of appointment, the Letters Patent.  Might I do that, albeit that the relevant passages are referred to in the summary of argument?

FRENCH CJ:   Yes, I think we have seen a copy, at least I have.  Well, perhaps you had better hand it up.

MR LANGE:   Thank you.  I will provide two copies to your Honour.  Might I at the same time, should it come to that, also provide your Honours with the transcript of the opening remarks made by Justice McClellan on 3 April 2013.  It is a document to which reference is made by ‑ ‑ ‑

FRENCH CJ:   What particular aspects of the Letters Patent do you want to take us to which go to your argument?  Are you putting as a general proposition that a serving judge cannot continue to serve if that judge has accepted a commission from the Commonwealth?

MR LANGE:   Well, my submission would be that upon the acceptance of that commission the incompatibility arises but here, for present purposes, as I say, there is concurrency and that is, in my submission, a more egregious situation than, say, it presented in Wilson’s Case where it seems that there was not concurrency of the performance of both functions.

BELL J:   Can I just raise one aspect about your submissions and reliance on Wilson?  Much proceeds on characterising Justice McClellan as a Chapter III judge.

MR LANGE:   It does in the written submissions but frankly that is only done to avoid any difficulty that might arise as a result of this State imposition of duties and that is not the case here.  So Justice McClellan plainly was performing the functions of a Chapter III judge in this application ‑ ‑ ‑

BELL J:   Justice McClellan was, as a Justice of the Supreme Court of New South Wales, engaged in the determination of a controversy in federal jurisdiction. 

MR LANGE:   Yes.

BELL J:   That did not make Justice McClellan a Chapter III judge.

MR LANGE:   Sorry, perhaps I was imprecise in my language.  He was certainly a judge exercising Chapter III power, and that is what I should have said. 

FRENCH CJ:   Well, he is exercising a jurisdiction invested in the Supreme Court of New South Wales pursuant to Chapter III.

MR LANGE:   Yes, and, indeed, that must be the case obviously ‑ ‑ ‑

FRENCH CJ:   So in that sense it might be possible to speak in a generic way of the Supreme Court as a Chapter III court in the sense that it is a court of a State in which federal jurisdiction can be invested.

MR LANGE:   Yes.

FRENCH CJ:   That is as far as I think we go with the label “Chapter III”, is it not?

MR LANGE:   In my submission, that is quite right.  It matters little for present purposes and, indeed, in Wilson, although of course Justice Mathews was a Federal Court judge and thus a federal judge in that sense, of course the Court did speak about judges who exercise that role under Chapter III – it  was not limited strictly to judges of the Federal Court in that particular decision.

To return to your Honour the Chief Justice’s question about the importance of the Letters Patent, in my submission, what is apparent from page 2 of that document commencing at the paragraph “Now Therefore” at about point 5, is that the function to be performed by Justice McClellan and the Commission more generally is what was referred to in Wilson’s Case as a political one.  The Letters Patent direct the Commission “to inquire into institutional responses”, then (a) “what institutions and governments should do”, “what institutions and governments should do” in (b), “what should be done” in (c), (d) “what institutions and governments should do” and perhaps then most important in summary at point 3:

We direct you to make any recommendations arising out of your inquiry that you consider appropriate, including recommendations about any policy, legislative, administrative or structural reforms.

FRENCH CJ:   Well, there would not be many Royal Commissions that did not involve in the Letters Patent creating a Commission a requirement to consider recommendations.

MR LANGE:   Indeed, but here one sees the very breadth of the direction to include ones of policy and legislation and, in my submission, those are tasks typically performed by the Executive and to an extent also by the legislature in the ‑ ‑ ‑

FRENCH CJ:   Well, nobody disputes that the conduct of a Royal Commission, whether you are making recommendations or not, is an executive function. 

MR LANGE:   Indeed, and what we have here, if I might take a step back, in my submission, is the performance of an executive function by a person who has been commissioned to perform that executive function as chair while concurrently serving in a collegiate environment in the Supreme Court of New South Wales determining matters involving controversies with the Commonwealth, the same body which ultimately was charged with the prosecution of this applicant.

FRENCH CJ:   Well, you are not arguing separation of powers, are you, so much as incompatibility of function?

MR LANGE:   In my submission, the two go hand in hand.

FRENCH CJ:   Well, one is a little different from the other.  I mean, incompatibility questions arise under, for example, the kind of circumstances considered in Wainohu and other cases involving State courts.

MR LANGE:   But, in my submission, here the incompatibility arises because of the dual performance of functions as opposed to ‑ ‑ ‑

FRENCH CJ:   Well, the problem then must be a problem, as you are setting it up, which goes beyond the particular case of the Court of Criminal Appeal’s determination of your client’s appeal because it must be a problem affecting any judge sitting on a State court which is capable of exercising federal jurisdiction.

MR LANGE:   It may be, but that is again the conundrum that is thrown up by Wilson’s Case that one must look to the particular situation in which the judge performs that extrajudicial function and, again, in Wilson’s Case it was said it is difficult to set out bright lines.

FRENCH CJ:   Why does it go to the validity of the judicial function?  Why does it not go to the validity, on your argument, of the Letters Patent?

MR LANGE:   Well, in my submission, it really affects both.  In Wilson’s Case, if I might start here, there was, as I say, no concurrent performance and therefore no need to address the impact upon the judicial function because simply by removing that extrajudicial function otherwise conferred on Justice Mathews, the judicial function was “sanitised” I think was the word used by the majority.  Here the sanitisation could not take place, or has not taken place, because of the concurrent performance of the operation, and therefore, I submit that it does affect the judicial function and, indeed, as was ultimately held in Wilson’s Case, section 10 of the relevant Act did not permit the appointment of a judge in circumstances where incompatibility would arise. 

In my submission, here, the Chief Justice of course designates those judges who are to sit as the Court of Criminal Appeal under section 3 of the Criminal Appeal Act and it is through there also that sanitisation could occur, that is, to interpret section 3 in such a way that a judge who would be exercising an incompatible function may not be appointed to sit as a judge of the Court of Criminal Appeal.  It is for that reason, I submit, that the incompatibility flows in respect of both functions, not simply the Executive.

BELL J:   Looking at the alternative way you put your argument in paragraph 9, application book 372, you contend that there has arisen a reasonable apprehension of bias.  This was not a point that was taken when the matter came before the Court of Criminal Appeal.

MR LANGE:   No, and that is a criticism I have to wear obviously as counsel having appeared below, yes, I concede that.

BELL J:   And how do you deal with it?

MR LANGE:   Yes, that is quite right, and all I can say is that in the peculiar circumstances of this case where in fact no appearance after the remittal occurred, the matters were dealt with on the papers.  It was a point that was not but ought to have been taken at that stage so that Justice McClellan could have the right of response. 

Your Honours will note of course that the alternative way of putting the argument was one espoused by Justice Gaudron in Wilson’s Case who said that one could derive some benefit by drawing an analogy to the principles underpinning apprehended bias and, as I say, in a simplistic form it is that a person who is – it is perhaps an overly economic word – retained by the Commonwealth to make inquiry sits also in a case where it determines a controversy involving the Commonwealth and it is in that sense that I say, broadly speaking, a reasonable apprehension of bias has arisen and of course, as Justice Gaudron said, where constitutional matters are involved it is perhaps not right necessarily to speak about the right thinking observer being aware of all of the facts of the case and it is ‑ ‑ ‑

FRENCH CJ:   How do you deal with the general proposition that there is no necessary incompatibility between – take the stronger case of federal judges conducting their federal judicial work and also undertaking certain classes of non‑judicial work persona designate as considered in Grollo?

MR LANGE:   Well, of course, Grollo ‑ ‑ ‑

FRENCH CJ:   Because it seems to me you are pitching your submissions at a level of generality which really picks up any non‑judicial concurrent commission from the Commonwealth.

MR LANGE:   Yes.  With that pitch all I am saying is that the problem has potential to arise any time there is that performance of an extrajudicial role, but, as is accepted in Wilson’s Case, one must look at the specifics and here, as I say, the need to inquire into policy and recommend legislation is a political one.  That may not necessarily be the case with other Royal Commissions. 

Significantly also, I make this point which is also brought out by the opening remarks and is referred to in the summary of argument, invariably the conduct of this Royal Commission requiring the Commission, as it were, to investigate allegations of sexual abuse would touch upon the investigation of criminal offences because sexual abuse per se must be a criminal offence. 

Under section 6P of the Royal Commissions Act there is power to refer criminal conduct to prosecuting authorities, but that would invariably be the case here and was acknowledged by the Royal Commission when it made its opening remarks.  I can take your Honours to that passage momentarily, but prior in fact to any it seems real hearings taking place, avenues were put in place – and this appears at page 11, point 1 – links were established:

with the appropriate authorities in each State and Territory to which a matter may be referred with the expectation that, where appropriate, prosecutorial proceedings may commence.

BELL J:   To the extent that you seek to narrow the focus to avoid the difficulty that the Chief Justice has been raising with you, you run into the difficulty that any matter in fact in the circumstances of this case giving rise to an apprehension of bias was a matter appropriately raised at the time.

MR LANGE: I accept that, as I must. Nonetheless, that does still not, in my submission, preclude this Court from dealing with the arguments at this stage, and I say that particularly because if the argument is a good one it of course involves a judge exercising a function contrary to the dictates of the Constitution and that is a significant matter which ought to be taken into account which may not necessarily flow from the ordinary case of apprehended bias involving perhaps economic interests. This is a fundamental issue and, therefore, in my submission, the Court ought not to be dissuaded from hearing it because of that fact.

The jurisprudence in respect of incompatibility and incompatibility doctrine of course raises this issue of the need to ensure the integrity of the court in particular.  One is concerned with the function of the court, not with the executive body.  Might I also remind your Honours of something that was said in Wilson’s Case and to which I have not made reference in the summary of argument, and it appears at page 12 of the report.  It is a short passage referring to the decision of Justice Windeyer in The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 390 where his Honour said:

it is well‑recognised dogma for us that the judicial power is to be exercised separately from the exercise of the other two powers –

and these words were emphasised by the Court in Wilson –

and by different people.

In my submission, that is what has not occurred in the present case.

FRENCH CJ:   This is in the context of conferring upon the same body a mix of judicial and non‑judicial functions, a different issue.

MR LANGE:   In the original – of course that was the situation in the original case from which the quotation was taken but it was removed, as it were, from that context and placed into the different context in Wilson’s Case where it was cited with approval.

FRENCH CJ:   But obviously your submissions do not go to the proposition that Justice McClellan’s commission as a judge of the Supreme Court was vitiated upon his appointment as a Royal Commissioner.  You are not contending that his appointment as a Royal Commissioner was invalid because of his commission on the Supreme Court.

MR LANGE:   That may be for other people, it is not for me, no.

FRENCH CJ:   You are not putting that, so in the end it becomes a case‑by‑case contention which seems to rely not so much upon fundamental incompatibility as apprehension of bias.  In substance, that is what you seem to be saying.

MR LANGE:   No, with respect.  Firstly, it is clear that whatever guidance was given in Wilson as to the three steps that should be considered in determining compatibility has not resulted in certainty and, in my submission ‑ ‑ ‑

FRENCH CJ:   But that went to the validity of the judge’s appointment in Wilson, not as a judge but as an inquirer. 

MR LANGE:   Indeed, and in Wilson’s Case it was said that the common law doctrine of invalidity does not apply.  It is a similar related doctrine but not the same and, therefore, the appointment is not validated, and I do not say otherwise, as a judge.  But this case, as I say, allows firstly the provision of greater definition as to what is permissible and not, and secondly also deals with what is my submission, the natural consequence, namely, that if there is concurrence, exercise both functions, that does invalidate – I use that word generally – the performance of the judicial role during that period of concurrency. 

So, in my submission, it is not simply a case by case, although invariably in such situations one must look to the particular facts underlying the appointment.  Your Honours, could I just make brief comment about the second point which is the admissibility of evidence and, of course, that is a matter which is well canvassed in Mickelberg and subsequently in Eastman, but I say two things - that the prohibition on receiving evidence is not an absolute one and one must bear in mind that there are ‑ ‑ ‑

BELL J:   Well, it is not more your point that the Letters Patent is something the Court could take notice of.

MR LANGE:   In any event, yes.

FRENCH CJ:   I think we understand your submissions on that.

MR LANGE:   Unless I can assist the Court any further.

FRENCH CJ:   Thank you.  We will not need to trouble you, Mr Neil.

The applicant contends that the Court of Criminal Appeal which dismissed the applicant’s application for leave to appeal against sentence on 13 June 2013 was not properly constituted in the circumstance that the presiding judge was an officer of the Commonwealth Executive, having been appointed as a Commissioner of Inquiry by the Commonwealth Government and thus violating separation of powers required by Chapter III of the Constitution. The desirability of the appointment of serving judges as Royal Commissioners is a matter which has been and will no doubt continue to be debated.

However, in light of the decisions of this Court going to the constitutional questions raised by the applicant, and the omission to raise the secondary question involving the contention of apprehended bias before the Court of Criminal Appeal, the application does not raise any question of principle which would warrant the grant of special leave.  Special leave will be refused.

AT 9.52 AM THE MATTER WAS CONCLUDED