MDP v The King

[2024] HCATrans 41

[2024] HCATrans 041

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B72 of 2023

B e t w e e n -

MDP

Appellant

and

THE KING

Respondent

GAGELER CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 4 JUNE 2024, AT 10.00 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS R.M. O’GORMAN, KC appears with MS S.J. HEDGE for the appellant.  (instructed by Jasper Fogerty Lawyers)

MR G.J. CUMMINGS appears with MS E.L. KELSO for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

MR T.M. WOOD appears on behalf of the Director of Public Prosecutions of the Commonwealth, seeking leave to intervene.  (instructed by Office of the Director of Public Prosecutions (Cth))

MR B.A. HATFIELD, SC appears on behalf of the Director of Public Prosecutions for New South Wales, seeking leave to intervene.  (instructed by Solicitor for Public Prosecutions (NSW))

HIS HONOUR:   This appeal was listed for hearing today before a Court comprised of five Judges.  On reviewing the written submissions of the parties and of the applicants for intervention last week, it became apparent that the scope of the issues potentially in play had expanded considerably from those which had been identified at the time of the grant of special leave to appeal, making the appeal more appropriate to be heard before all seven Justices.

It also became apparent upon reviewing those papers that there were some procedural loose ends.  The hearing before the Full Court was accordingly vacated.  The appeal will be relisted for a one-day hearing before all seven Justices in the October or November sittings of the Court, in Canberra.  Before discussing what I have described as some procedural loose ends, I will indicate now the orders and directions that I propose to make, subject to any submissions of the parties.  They are as follows:

1.Grant leave to the Director of Public Prosecutions (Cth) and the Director of Public Prosecutions (NSW) to intervene in the appeal to make written submissions and to supplement those written submissions with oral submissions not exceeding half an hour each.

2.Subject to such further grant of special leave to appeal as may be necessary, grant leave to the appellant to file any amended notice of appeal on or before 14 June 2024.

3.Grant leave to the respondent to file any notice of contention on or before 14 June 2024.

4.The appellant file any supplementary submissions in chief of no more than 10 pages on or before 19 July 2024.

5.The respondent and intervenors file any supplementary submissions of no more than 10 pages each on or before 16 August 2024.

6.The appellant file any supplementary submissions in reply of no more than 10 pages on or before 13 September 2024.

The issues I wanted to raise for the consideration of the parties are these:  Mr Cummings – I will give you an opportunity to respond, if you wish, in a moment – it is not clear from your written submissions whether the proviso is being seriously relied upon.  If it is, it is appropriate for you to file a notice of contention and to provide fuller written submissions with appropriate evidentiary references.  It is to be expected, generally, that when the Crown seeks to rely upon the proviso in this Court that that course is taken.

Ms O’Gorman, the sole ground of appeal at the moment focuses on the directions given by the judge and is to the effect that a miscarriage of justice occurred in the way in which those directions left it to the jury to use certain evidence.  There is perhaps a question – this is a matter for you – as to whether the erroneous direction, as you would have it, can be characterised as a wrong decision on a question of law, and there is perhaps a question as to whether the admission of the evidence in the first place constituted either a miscarriage of justice or a wrong decision on a question of law.

Those are the questions that lie behind my proposed order 2, which would allow you to amend the notice of appeal, subject to the Full Court granting special leave to appeal in due course.  I am content to give anyone the opportunity to speak who wants it, otherwise I will simply make the directions that I have indicated.  Perhaps we could start with Ms O’Gorman.

MS O’GORMAN:   Thank you, your Honour.  Having heard all of that, there is nothing that I wish to say or be heard about.

HIS HONOUR:   Thank you.  Mr Cummings.

MR CUMMINGS:   Likewise, your Honour, I do not wish to be heard on that topic at this point in time.

HIS HONOUR:   Thank you.  Mr Wood.

MR WOOD:   The same, your Honour.

HIS HONOUR:   Thank you.  And Mr Hatfield.

MR HATFIELD:   I have nothing to raise, your Honour.

HIS HONOUR:   Thank you.  I make the orders and directions that I previously indicated and will now adjourn.

AT 10.08 AM THE MATTER WAS ADJOURNED