Lappas v The Queen

[2004] HCATrans 46

[2004] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

Registry  No C12 of 2003

B e t w e e n -

SIMON LAPPAS

Applicant

and

THE QUEEN

Respondent

Notice of motion

McHUGH ACJ
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MARCH 2004, AT 9.06 AM

Copyright in the High Court of Australia

MR R.J.H. MAIDMENT, SC:   May it please the Court, I appear for the applicant on the notice of motion.  (instructed by Director of Public Prosecutions (Commonwealth))

MR L. LASRY, QC:   If the Court pleases, I appear with my learned friend, MS J.L. SAUNDERS, on behalf of the applicant for special leave.  (instructed by Ken Cush & Associates)

MR G. O’L. REYNOLDS, SC:   May it please the Court, I appear with MR K.P. SMARK, on behalf of John Fairfax Pty Limited, Federal Capital Press of Australia Pty Limited and Nationwide News Pty Limited.  I also appear with my learned friend, MR R.P. CLYNES, on behalf of the Australian Broadcasting Corporation.  Each of the companies for whom I appear seeks leave to intervene in these proceedings in relation to the notice of motion before the Court today.  (instructed by Minter Ellison)

McHUGH ACJ:   Yes.  We will deal with your application after we deal with the parties, Mr Reynolds.

MR REYNOLDS:   Thank you, your Honour.

McHUGH ACJ:   Yes, Mr Maidment.

MR MAIDMENT:   May it please the Court.  What we seek today is such protection as is necessary to ensure that the subject matter of the proceedings, that is, three documents and the information contained in those documents, which had been classified as top secret and was said by an expert called during the course of the trial, although perhaps not appropriately classified as top secret, nevertheless, to have been appropriately classified as secret.

McHUGH ACJ:   Yes, but this application seems to me to be totally misconceived and, indeed, by filing the notice of motion and the affidavit in support, you have created a problem that did not previously exist.  Whoever is responsible for this notice of motion does not seem to have any understanding of what is involved in a special leave application.  A special leave application is to be dealt with on what is in the book and there is not a reference to 99 per cent of the material referred to in the annexures to the affidavit, they could not be referred to. 

The only matter that refers to anything that could possibly prejudice the security of the Commonwealth is contained in certain pages in the summing up, which itself is an irrelevancy and should never have been included in the application book.  Why was it not objected to?  What does the summing up have to do with an appeal on sentence?

MR MAIDMENT:   Your Honour, as I understand it – and I did not deal with the persons concerned directly – that it was as a result of communication with the Court that the summing up was included in the application book as a means of drawing the Court’s attention to the relevant facts.

KIRBY J:   So you say that your affidavit was filed in response to those pages in the book in case the Court might think on Friday that knowing some detail of the circumstances of the offence was relevant to assessing the seriousness of the offence and the punishment for which it called?

MR MAIDMENT:   Precisely, your Honour.

KIRBY J:   But if we were to take the view that all you need to know is that there was a sensitive document, then we do not need those pages.  If they were removed, then the cause for your intervention today would disappear.

MR MAIDMENT:   It would, certainly, your Honour, yes.

McHUGH ACJ:   We will hear what Mr Lasry has to say in a moment but at the moment I cannot see any relevance whatever of the summing up.  The issue is whether or not the Full Court erred in setting aside Justice Gray’s sentence.  There is nothing in the Court of Appeal’s judgments, nothing in his judgment on sentence that has anything to do with material that could possibly prejudice the Commonwealth.  It is as innocuous as a kindergarten textbook.  The material that is contained in the annexures to the affidavit of Ms Summerell could not possibly be referred to on a special leave application.  It is not in the book and it has no relevance whatever.

MR MAIDMENT:   Your Honour, I am not here to try to justify our position.

McHUGH ACJ:   It seems to me that ‑ ‑ ‑

KIRBY J:   Well, you are here to try and justify your position.

MR MAIDMENT:   In a sense but ‑ ‑ ‑

KIRBY J:   That is why we are all here.

MR MAIDMENT:   ‑ ‑ ‑ if the danger is removed, then we are comfortable, your Honour, and it is as simple as that.

KIRBY J:   There was another way to ask that the danger be removed, but anyway.

McHUGH ACJ:   We will speak to Mr Lasry ‑ ‑ ‑

MR MAIDMENT:   Your Honour, can I just say one thing before you do?

McHUGH ACJ:   Yes.  Let me tell you what at the moment seems to me is the proper course, is to direct that the material in those pages in the summing up which are totally irrelevant, it seems to me, subject to hearing Mr Lasry, should be removed and returned to the parties, whoever the relevant party is, and that so far as your documents filed in support of the application, certainly the annexures, ought to be returned to your side.  Have they been served on the other side?

MR MAIDMENT:   No.

McHUGH ACJ:   No?

MR MAIDMENT:   They have, your Honour, yes.

McHUGH ACJ:   They have?

MR MAIDMENT:   Yes, they have.

McHUGH ACJ:   Yes.  Mr Lasry, would you ‑ ‑ ‑

MR MAIDMENT:   I am sorry, can I just indicate what I was going to say a moment or two ago.  Your Honours, the concern also that we had was that something may arise during the course of the hearing by way of question from the Court which may have led to us making an application in running for an order in terms of the orders that we are seeking today.

McHUGH ACJ:   I cannot see how that would arise, given the material in the Court of Appeal’s judgment and Justice Gray’s judgment on sentence, but if it does then you can make an ad hoc application at that time.

MR MAIDMENT:   If the Court pleases.

McHUGH ACJ:   Yes, Mr Lasry.

MR LASRY:     Your Honours, our position has been, once this notice of motion was brought to our attention, that there were no circumstances that I can envisage in which we would be referring to the so‑called secret material.  The material in the book is there because, as I understand it – and I gather there is some correspondence to this effect – a

request/direction/instruction from the Registry.  We agree, with respect, that his Honour’s charge to the jury and, particularly, that portion of it in bold type, bears little or no relevance to this application and I have made it clear ‑ ‑ ‑

KIRBY J:   You would agree to our simply removing them here and now and returning them so that they can be destroyed?

MR LASRY:   Yes, your Honour.  Can I just say that during the course of the proceedings, part of which I was in – I was in the last trial and, of course, the Director’s application to the Court of Appeal – when moments arose where it became necessary to refer to the so‑called secret material, it was always obvious in advance and an opportunity was given for an order to be made.  Now, I think the prospects of that are highly unlikely in this application but if ‑ ‑ ‑

McHUGH ACJ:   It is a 20 minute application and it concerns, really, the evaluation of ‑ ‑ ‑

MR LASRY:   That is right.  I am conscious of the time, your Honour.  I am doing the best I can.  So if that means another reason not to refer to the secret material, that is another reason why I will not refer to it, but it would be apparent from the application book that the issues we seek to raise do not bear on that material at all.

McHUGH ACJ:   Yes, thank you.  Mr Reynolds, I think your application has become rather irrelevant.

MR REYNOLDS:   We agree, your Honour, and we withdraw our application.

McHUGH ACJ:   Yes.  Yes, Mr Maidment.

MR MAIDMENT:   Your Honour, may I just make one other point?

McHUGH ACJ:   Yes.

MR MAIDMENT:   There was a matter of concern which occurred to us late in the day – yesterday, I think – that related to the court reporting arrangements.  Now, if it be necessary to make an application during the special leave application – and we concede that it is unlikely – then it may be very difficult to put arrangements in place to have that measure of security applied to the court reporting procedure to deal with the material disclosed during the closed hearing, if there be one. 

Arrangements were put in place in the Supreme Court which worked quite successfully involving the use of a stand‑alone computer and whilst,

again, we conceive, of course, that it is highly unlikely that it is going to be necessary, it did occur to us that it is a matter that we ought to raise with the Court in advance because it may be very difficult to make those arrangements in running.

McHUGH ACJ:   Yes, thank you.

MR MAIDMENT:   If the court pleases.

McHUGH ACJ: By notice of motion, the respondent to a special leave application pending in this Court seeks orders under section 85B of the Crimes Act 1914 (Cth) that all members of the public be excluded from the Court during such parts of the hearing as may disclose or reveal certain information or documents. Ancillary orders are also sought. An affidavit with detailed annexures has been filed in support of the notice of motion.

The special leave application is concerned with whether the Court of Appeal of the Australian Capital Territory erred in increasing the sentence of the applicant to the special leave application, Mr Simon Lappas.  The specific orders sought by the notice of motion are:

1. That pursuant to section 85B of the Crimes Act 1914 (Cth), that at the hearing of the Application for Special Leave to Appeal by Simon Lappas all members of the public shall be excluded from the Court during such part or parts of the hearing as may:

(a)      disclose the contents or any part of the contents of the documents the subject of the charges upon which the sentencing Orders to which this Application relates were made:

(b)      reveal the source of any information in the documents;

(c)      disclose details of the specific nature of the work that was undertaken by the Applicant Lappas during his employment in the Defence Intelligence Organisation (“DIO”);

(d)      disclose any details of the Defence Intelligence business conducted by DIO, or any other defence agency;

(e)      disclose positions and/or areas of interest and/or areas of expertise of any witness who is or has been employed in DIO; and/or

(f)       reveal the identity and relationship with DIO of any person whose relationship with DIO has not been previously published.

2. That pursuant to section 85B of the Crimes Act 1914 (Cth) no report be published of any part or parts of the said hearing to which Order 1 may apply.

3.        That there be no broadcast of any part of the application for special leave to which Order 1 may apply on the closed circuit monitor system operated by the court.

4. That pursuant to section 85B of the Crimes Act 1914 (Cth) no person, without the approval of the Court, have access, either before, during or after the hearing of this application, to any affidavit, exhibit, information or other document used in the said application or the proceedings that is on the file in the Court or in the records of the Court.

5.        That the relevant security agency, in consultation with the Registrar, be permitted to take reasonable steps to ensure the security of the Courtroom in which the application for special leave is to be heard.

The notice of motion and its supporting affidavit and annexures appear to be based on a misapprehension of what is involved in a special leave application in this Court.  It is certainly based on a misapprehension of what is involved in the special leave application brought by Mr Lappas.  That application will be conducted on the basis of what is contained in the special leave application book.  Apart from a few pages in the summing up, which in our view should not be in the application book and which both parties now concede should not be in the application book, that book contains none of the documents, contents, information, details or positions or identities referred to in paragraph 1 of the notice of motion.

Those few pages in the summing up, to which I have referred, do refer to certain people.  However, the identities of those persons are not relevant to any issue in the special leave application.  None of the other matters referred to in the notice of motion are relevant to any issue in the application.  Indeed, there is no reference to any of them in the special leave book apart from those to which I have referred in the pages of the summing up.  Accordingly, the notice of motion must be refused, and the summing up deleted from the special leave application book.

Unfortunately, the filing of the notice of motion, and, more particularly, the annexures to the affidavit in support of it, do refer to various matters set out in paragraph 1.  Why that was done is not easy to understand.  Apart from the matters in the summing up, to which I have referred, there is no reference to any of them in the special leave book.  Consequently, the filing of the notice of motion has created an issue concerning security that did not previously exist.  It will be necessary, therefore, to make orders to ensure that the filing of those matters do not prejudice the security of the Commonwealth.

Accordingly, the orders that we propose is that the summing up that is contained in the special leave book be omitted and that the transcript containing those parts of it in bold be returned to the appropriate authority and that the annexures to the affidavit of Ms Summerell be returned to the applicant in this notice of motion.

Mr Maidment, who appears for the respondent, has indicated a concern on the part of his client that, if some matter should be inadvertently referred to, there may be difficulties in dealing with it under the Court’s court reporting system.  He has suggested that some form of computer recording might be substituted.  However, I cannot see even a remote chance that that will happen.  We see no reason to depart from the Court’s ordinary methods of recording the hearing of special leave applications.

Now, is there anything further, Mr Maidment?

MR MAIDMENT:   No, your Honour.

McHUGH ACJ:   Yes, Mr Lasry?

MR LASRY:   No, your Honour.

McHUGH ACJ:   Yes.  Accordingly, the notice of motion is dismissed.  You withdrew your application, Mr Reynolds?

MR REYNOLDS:   Yes, your Honour.

McHUGH ACJ:   Yes, insofar as it is necessary, I formally dismiss your notice of motion.

MR REYNOLDS:   If your Honour pleases.

McHUGH ACJ:   Yes, adjourn the Court.

AT 9.26 AM THE MATTER WAS CONCLUDED