Mallard v The Queen

[2005] HCATrans 19

[2005] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P77 of 2004

B e t w e e n -

ANDREW MARK MALLARD

Appellant

and

THE QUEEN

Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH AND SYDNEY BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 FEBRUARY 2005, AT 3.55 PM

Copyright in the High Court of Australia

MR M.J. McCUSKER, QC   May it please your Honour, I appear for the appellant.  (instructed by Clayton Utz Lawyers)

MR B.W. WALKER, SC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

HIS HONOUR:   Now, what is the position, Mr McCusker?

MR McCUSKER:   Your Honour, my instructing solicitor has prepared a draft appeal book index which was sent both to the respondent and the High Court Registry on 20 January.

HIS HONOUR:   Yes, I have seen that.

MR McCUSKER:   I am told today that the respondent wishes to add to it – I think it is six witnesses – eight witnesses, I am told – which will add something like another 38 pages or thereabouts to the appeal book, and also wishes to add the closing address at the trial of counsel for the appellant, which is about 20 pages.  We are perfectly happy, of course, to accommodate that.

What is proposed is that in addition we will alter – your Honour has seen the appeal books index as it stands.  I propose to change the order so that the transcript of evidence appears chronologically, but we would provide a separate index in alphabetical order.  You will see that the index at the moment – the draft index – lists the witnesses in alphabetical order.  We will do that separately.

The respondent says that, as I understand it, it is not quite certain that it accepts the index with the proposed additions and would require, I think, a further seven days to finalise that.

The appellant’s proposal is that we proceed with the index with the additions that have been so far notified to us and if the respondent wishes to do so, it may supplement that within seven days.  We would like to move on to prepare the appeal book.

HIS HONOUR:   As things presently stand on the indications we now have about content, what number of volumes are we looking at?

MR McCUSKER:   Can I just take a moment to – I am told the estimate is five volumes, your Honour. 

HIS HONOUR:   That is five double‑sided?

MR McCUSKER:   Five double‑sided, yes.  So that is the matter, so far as the appellant knows, of the index.  I think that is the position.  If we can proceed with the index with those additions, on that basis, it would be expected that we will have the appeal books printed within about three to four weeks.

We were asked to deal with the question of time for submissions.  On the question of submissions, the appellant would seek to have – bearing in mind that the submissions will need to be cross‑indexed to the appeal books – until Friday 11 March within which to file written submissions, and that the respondent have until Friday 8 April within which to file its submissions and return it.

HIS HONOUR:   That is straddling the Easter break, is it not, that period?

MR McCUSKER:   Yes, that is true.

HIS HONOUR:   Does that present any difficulty?

MR McCUSKER:   I do not know.  Perhaps the respondent could respond to that.

HIS HONOUR:   We will come to Mr Walker presently.  Your proposal is 11 March for your submissions, 8 April for respondent’s submissions.  Reply by?

MR McCUSKER:   The 6^th of May.  I appreciate that is a lengthy time, but we understand the respondent will seek, as we do, to have leave to have the submissions exceed 20 pages.  The appellant seeks that because your Honour may recall that there is a set of tables or a chart which runs into 47 pages.  It was produced on the special leave application hearing and we would seek to include that with our written submissions.

HIS HONOUR:   So what outer limit do you want imposed on your submissions?

MR McCUSKER:   The appellant’s primary submissions?

HIS HONOUR:   Yes.

MR McCUSKER:   By 11 March, your Honour.

HIS HONOUR:   No, length.  How long?

MR McCUSKER:   Length, sorry.  Given that the tables that we are talking about are 47 pages, we would like to have, in addition to that, another 35 pages, so that makes 82 pages.  I am sorry, your Honour, I am reminded there is another table as well as the 47, so we would seek to have a total, including the tables, of 97 pages and that will include two sets of tables.  I do not know what the respondent’s position is as to the outer length of its submissions.

HIS HONOUR:   What reply length do you say would be appropriate?

MR McCUSKER:   It is, of course, difficult until we know what the respondent’s submissions are.  I understand them to be voluminous, but we would think that we would be able to accommodate those within 20 pages.

HIS HONOUR:   Yes.

MR McCUSKER:   The other question, I think, that was raised was the question of the estimated length of the hearing.  At the special leave application, an estimate was given by the applicant then of about two days.  The respondent’s counsel then said, will it be more like four days, five days, I think.  We have not reached any agreement on that, but we would suggest three to three and a half days would be, in the circumstances, appropriate.  Probably three and a half‑days to play it safe.

HIS HONOUR:   Yes.

MR McCUSKER:   That is all I can usefully provide your Honour with at the moment, unless there are any questions.

HIS HONOUR:   Is there anything further, from your side of the record, that is proposed as being a means of assisting the Court to identify issues, resolve them?  Is there anything that we can be doing, so far as your side of the record is concerned, to pinpoint – as far as one can in a matter of this kind – the points to which attention will have to be given by the Court?  I am not conscious of anything, but it is that which I invite attention to.  Given that my present inclination is to hold a further directions hearing after the close of written submissions, it may be that it is something that we should leave over entirely until then or, at the least, revisit then.

MR McCUSKER:   With respect, I think revisit it at that time, because we will then be in a better position to clarify the issues between the parties.

HIS HONOUR:   Yes.  Mr Walker, what do you say on the matters that we have presently discussed?

MR WALKER:   First of all, your Honour, we would seek 50 pages on the basis that we hope that we will not have to respond on the same scale as the schedules, in particular, that the appellant will have replied upon.

Next, we agree that it would be – to use my friend’s words – safer to estimate three to three and a half, but we make this clear:  it is possible to impose a tighter time than that so long as the time is divided equitably.  In relation to ‑ ‑ ‑

HIS HONOUR:   That just invites me to do the division, Mr Walker.

MR WALKER:   No.  I am sure my friend and I can do the division, your Honour, with the fear of your adjudication if we cannot agree.

HIS HONOUR:   Yes.

MR WALKER:   I need to make it clear, although we respectfully accept that what my friend says about three and a half, as opposed to three, for example, is no doubt on the side of safety, in terms of the Court’s business and the effect that a half added to three might have on a sitting week, I am bound to say that I am sure we could fit within three.  But then I have to say we could fit within two, though at the real risk of being, so far as counsel are concerned, relatively tightly constrained on some of the matters of unavoidable detail.

That brings me to the next question.  Your Honour asks about any other expedients we might propose.  We agree that they will be best considered, at least, and determined upon at the next directions hearing, which we understand will follow written submissions having been exchanged and filed.  However, may we tentatively propose one thing in terms of paperwork.  Five double‑sided volumes may not be as formidable as one may have feared in advance, but it is formidable enough, particularly in terms of the following of material for particular factual issues.

We raise for consideration the possibility that dossiers, as it were, ordered in sequence, as documents need to be gone to to understand the detailed written submissions on factual matters, might not also be a useful form of presentation for the Bench during an oral hearing.  It involves, of course, what might appear otherwise to be the wasteful duplication of copying, but does have the advantage that, as it were, issue by issue, there is a booklet that contains, and contains only, and in an order that reflects argumentative requirements, the documents that would be gone to from the appeal book.  That is one possibility.  That is one, I think, ought to await the way in which the written submissions come out.

The other possibility in order to assist at a hearing – and this is even more unusual, we think – would be that the Court might find it useful to hear from the respondent, as it were, in an interspersed fashion, if discrete, factual – and I do stress factual – detailed arguments can be, first of all, seen to fall into quite separate compartments, and, second, to be the kind of argument where the Bench may benefit from hearing a focused respondent/appellant on episodes, as it were, in an agreed order.

We say that because in a hearing of, say, three to three and a half days long, by the time the respondent rises to respond, there will have been quite a deal of time and argument on other matters ensue since, for example, the presumably most important factual matters will have been the subject of detailed address by the appellant.

So that is another possibility, but it is certainly one that we would see as really only being sensibly considered by your Honour after you have seen our respective written submissions.  That would then leave only the question of the division of time for whatever length of hearing the Court thinks appropriate.  We are very confident that counsel will agree on that, but accepted at the next directions hearing, we ought to say whether we have and, if so, to what effect, accepting that if we have not agreed, it ought to be a matter of peremptory decision by your Honour.

Now, that leaves the question of the date for written submissions.  Your Honour, we, with respect, would not regard it as appropriate that the time for submissions be regarded as including the, as it were, statutory Easter break, but that does not require much adjustment to the timetable my learned friend has proposed.  Otherwise, I have nothing to say about those dates.

HIS HONOUR:   Yes.  The matter which I would raise for the consideration of both counsel, but in respect of which I seek no comment today, is whether, in a matter as factually complex as this, there is likely to be any advantage in providing to the Court in addition to the narrative of relevant facts which ordinarily appear in an outline of submissions or written argument, something in the nature of an index or series of indices of issues; that is to say, once we get to the point of written submissions, if the parties either agree or substantially agree about the sorts of factual issues that will have to be traversed, whether there is advantage in their submitting an agreed index of the appeal books by issue.

So that, in addition to the table of contents that we will have at the start of each appeal book in the ordinary course of things, there will be perhaps an index that Witness A touched the issue of whatever it may be, the state of the back security door or whatever, at pages this, that and the other in volumes whatever of the appeal book.

Now, again, as I say, I do not ask for comment now, and I do not wish at the end of this process to be inflicting on the parties and their legal advisers unnecessary clerical work, but if, as I would expect, counsel would find such documents useful, I am not so sure why we should be left out of the secret of the benefit of the work that someone has done for counsel.  If it can be agreed, well and good.  As I say, no comment is called for by counsel on that.

Subject to anything that counsel may say, what I am minded to do is to make directions for submissions according to the following timetable:  appellant’s submissions 11 March, respondent’s submissions 15 April, reply 6 May or, if needs be, I would stand it over to 13 May, though there is a fairly lengthy period.  As for length of submissions, what I would be minded to direct is appellant’s submissions not to exceed 35 pages plus annexed tables, the annexures not to exceed in total 60 pages.  The respondent’s submissions not to exceed 50, the reply not to exceed 20.

I would say nothing about expected duration at the moment.  My immediate instinctive reaction is to say that three days would be allowed at the outside and counsel would have to cut their cloth accordingly, but much may turn on whether this would be a matter that would be fixed in a Canberra sittings of the Court or would be fixed for hearing during the Perth circuit, so that is a matter that I would stand over for further directions.

I would not be minded, for the moment, to fix a further date for directions, simply to indicate that I would wish to conduct further directions during the May sittings of the Court, commencing on Tuesday, 17 May, at some time which would be of convenience to counsel on both sides. 

Now, if I give directions according to those indications, do counsel wish to be heard against them?  First you, Mr McCusker.

MR McCUSKER:   Only in respect of the reply, your Honour.  We would like 13 May, simply because we are not able to estimate just what detail we may need to descend to.

HIS HONOUR:   You would not be saving everything to your reply, would you, Mr McCusker?  That would not be appropriate, would it?

MR McCUSKER:   No, no, we would not follow Sir Garfield Barwick in that respect, your Honour.

HIS HONOUR:   Yes.  Mr Walker, would you wish to be heard against directions in that form?

MR WALKER:    No, your Honour, and we do not oppose my friend’s request.

HIS HONOUR:   Very well, I will give directions that the applicant’s submissions be filed and served on or before 11 March 2005, the respondent’s submissions be filed and served on or before 15 April 2005 and any submissions in reply on behalf of the appellant be filed and served on or before 13 May 2005. 

I will further direct that the appellant’s submissions are not to exceed 35 pages, together with annexed tables not exceeding in total 60 pages.  I further direct that the respondent’s submissions not exceed 50 pages and that any submissions in reply filed on behalf of the appellant not exceed 20 pages. 

I will adjourn the directions hearing to a date to be fixed.  I would have, under the old rules, certified for the attendance of counsel, but no longer, I think, need to, so there we are. 

Adjourn the Court. 

AT 4.16 PM THE MATTER WAS ADJOURNED