Minogue v State of Victoria

[2017] HCATrans 255

[2017] HCATrans 255

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M2 of 2017

B e t w e e n -

CRAIG WILLIAM JOHN MINOGUE

Plaintiff

and

STATE OF VICTORIA

Defendant

Directions hearing

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 11 DECEMBER 2017, AT 9.33 AM

Copyright in the High Court of Australia

MR C.J. HORAN, QC:   May it please the Court, I appear with MR A.F. SOLOMON‑BRIDGE for the plaintiff.  (instructed by Darebin Community Legal Centre)

MR G.A. HILL:   Your Honour, I appear for the defendant.  (instructed by Victorian Government Solicitor)

HER HONOUR:   Thank you.  Mr Hill, can I just ask a couple of questions before we start?  Where are we up to with the Bill?

MR HILL:   Your Honour, I apologise – my last submissions did say, correctly, but ultimately misleadingly, it was due to be considered.  It has not yet been – the amendments from the Legislative Council have not yet been considered by the Assembly – today’s notice paper have it number – anyway, high up on the list so it has not yet been considered.  There is a sittings 12th to the 14th this week, and it is on the notice paper to be considered this week.

HER HONOUR:   Thank you.  It is like a glacial move.

MR HORAN:   Yes, well it may be – as was discussed on the last occasion that Bill will inevitably have some impact on both the pleadings and the draft special case.

HER HONOUR:   That is why I am worried.  I know.

MR HORAN:   I do not think they will be impossible to navigate with a quick timetable to amend pleadings and amend the special case because it will simply mean that what is now a construction question in relation to retrospectivity will probably become a further aspect of the constitutional challenge.

HER HONOUR:   Okay.

MR HORAN:   So I do not think it will derail matters.

HER HONOUR:   Can I ask a practical question?  I have two versions – have you two had a discussion since those versions?

MR HORAN:   We have not - unfortunately I arrived in insufficient time to talk to ‑ ‑ ‑

HER HONOUR:   Do you want to talk?

MR HILL:   Perhaps – I was hoping to say this to my learned friend before ‑ ‑ ‑

HER HONOUR:   I am happy to leave the Bench.

MR HILL:   I hope that – so there are all sorts of matters that we do not really agree on, but there are only two matters that are very important.

HER HONOUR:   I have three areas.  There are the facts – 6, 7 to 9.  Is that one of your important areas?

MR HILL:   Yes, exactly.  So the State could live with the plaintiff’s version but for one, I hope, uncontroversial fact.

HER HONOUR:   All right, why do I not just go off the Bench and why do you not have a chat because I do not want to have to be a negotiator.  I lost those skills, if not two and a half years ago, then probably earlier than that.  Then you can tell me when you are ready.

MR HILL:   Yes, your Honour, thank you.

HER HONOUR:   Thank you.

AT 9.36 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.50 AM:

MR HILL:   Thank you, your Honour, for that opportunity.  Could I convey to the Court the result of our discussions?

HER HONOUR:   Certainly.

MR HILL:   Does your Honour have a copy of the plaintiff’s version of the special case?

HER HONOUR:   I do, yes.

MR HILL:   Now, one thing I should say at the outset, of course, your Honour might have seen there was an email from my instructors to the Registry to say ‑ ‑ ‑

HER HONOUR:   No, I did not.

MR HILL:   Sorry, I should start with this.  We received this version of special case on Friday morning.

HER HONOUR:   Yes.

MR HILL:   The Attorney‑General has decided to give instructions personally.  So what that means is – and we have not had time to get those instructions.

HER HONOUR:   That is okay, so subject to instructions.

MR HILL:   This is all subject to instructions, your Honour.

HER HONOUR:   I understand.

MR HILL:   I can inform the Court that everything has been done.  So, a brief went to the Attorney this morning.  My learned instructor is looking a bit haggard but anything for this Court, your Honour.  What I say is ‑ ‑ ‑

HER HONOUR:   That is a big offer, Mr Hill.  All right, so where are we up to?  Page 1 – we are agreed?

MR HILL:   Yes.  Could I just say – I will tell your Honour the two things that are very important to the State and I think we have agreement on at least one of them, possibly the second.

HER HONOUR:   All right.

MR HILL:   Does your Honour see – there is a new section – “Murder of Angela Rose Taylor”?  The important fact from the State’s point of view is to include a fact along the following lines – and I have suggested to my learned friends between what is currently paragraphs 6 and 7 - “Angela Taylor was a constable in the Victorian Police Force”.

HER HONOUR:   Yes.

MR HILL:   The reason for including that ‑ ‑ ‑

HER HONOUR:   That is fine, I understand the reason.  So is that agreed that that would be inserted?

MR HILL:   I think the position is my learned friends, for their own part, would agree but they, of course, need to get instructions.

HER HONOUR:   Subject to instructions.  I understand this is between counsel, but subject to instructions.

MR HILL:   Between counsel, subject to instructions.  My understanding is that fact would be agreed.

HER HONOUR:   Yes.

MR HILL:   The only other matter that I wanted to raise with your Honour actually concerns a form of the question that goes to this construction issue.

HER HONOUR:   All right, before we get there what is the position about 32 and 33 of the plaintiff’s draft, which is different to yours?

MR HILL:   The State ‑ ‑ ‑

HER HONOUR:   I mean, I must say I do not understand why we need any of those paragraphs for a special case.

MR HILL:   Yes, exactly.  If I could be ‑ ‑ ‑

HER HONOUR:   I would have thought that between you they should just come out and be the subject of submission.

MR HILL:   Your Honour, I wholeheartedly agree.  My response was going to be the State thinks well, if the plaintiff wants to rephrase how its argument is put we are – we do not object to them being present.  We do not see any need for them being present either, though.

HER HONOUR:   Yes, all right.  I am going to leave that between you.  So we are back to the questions now.

MR HILL:   Does your Honour see the form of 34(b).  Your Honour, just to make sure we are on the same page, it is phrased very precisely.

HER HONOUR:   This is “capable of applying”?

MR HILL:   Yes - “in circumstances where”.

HER HONOUR:   Yes.

MR HILL:   It is the “in circumstances where”.

HER HONOUR:   Yes.

MR HILL:   Now, my submission is that ‑ ‑ ‑

HER HONOUR:   So which bit do you not like and which bit do you want out and then I can – I understand the argument.

MR HILL:   I am sorry, your Honour.  I am not sufficiently mentally agile to answer it in that order.  May I answer it this way?

HER HONOUR:   Yes.

MR HILL:   The State sees there being two questions of statutory construction and this question goes to the first of them, but not the second.  So the plaintiff’s argument is this section only applies when the elements of the offence contain certain matters.

HER HONOUR:   Yes.

MR HILL:   Now, your Honour would have seen from the pleadings there is another fundamental difference of construction between the parties because the defendant says this is not a jurisdictional fact; these matters are matters for satisfaction of the Board.

HER HONOUR:   Yes.

MR HILL:   The issue I want to raise, your Honour, is that it would greatly assist the parties if the Court was able to deal with both of those questions of construction and my concern, which I cannot put any higher, is whether this form of question allows that second statutory construction, the difference between jurisdictional fact, matters for satisfaction of the Board to be determined by this Court.

Now, I think between the parties the plaintiff is certainly not attempting to limit the statutory arguments that the State would put and there might even be an expectation or a hope that the Court’s reasons would answer that question.  So that is why we raise it as a concern.  Will that question – is it too narrowly framed to enable that second question of construction to be answered?

HER HONOUR:   So do you want a new (c) – is that what it is?

MR HILL:   Yes, exactly, your Honour.  It is that if ‑ ‑ ‑

HER HONOUR:   If I go back to your submissions, which is where I worked it out, if you go to paragraph 9 ‑ ‑ ‑

MR HILL:   Yes, your Honour.

HER HONOUR:   So (b) deals with, in a sense, 9(a), and what you are concerned about is (b) and (c).

MR HILL:   Your Honour, if you have those submissions, what I am actually concerned about is the primary argument that is set out at paragraph 7.  Does your Honour see in paragraph 7 of our submissions we say it “operates by reference to the opinions” of the Board and even just that constructional choice, are these matters to be determined by the satisfaction of the Board or matters that ultimately are determined by the Court as jurisdictional facts.

HER HONOUR:   If I come back a step, the question that you posed in your special case was a very broad question.

MR HILL:   Yes, your Honour.

HER HONOUR:   It does not apply to the plaintiff.

MR HILL:   That is because – that is the question raised by the relief sought which is that the plaintiff is seeking a declaration.

HER HONOUR:   But that broad question would enable you to run that jurisdictional – that argument in paragraph 7.

MR HILL:   Yes, exactly, your Honour.

HER HONOUR:   Why do we not just insert it?

MR HILL:   I think this is the reason why the plaintiff proposed a narrower question, your Honour.

HER HONOUR:   Yes.

MR HILL:   The broad question “does it apply” raises all questions of construction, but it also raises questions of fact.  I think the parties, as we stand here, are in agreement that if the Court was to reach a position well, it is a question of fact for a court as a jurisdictional fact and not confined to the elements of the offence, that is a large factual inquiry and we – I think the plaintiff’s concern is a broad question might be thought to raise that factual issue that would not be suitable for resolution in this Court.  Your Honour, I have just had a thought – would it be too rude to impose?

HER HONOUR:   No, of course not.

MR HILL:   I am not sure whether this would ‑ ‑ ‑

HER HONOUR:   I must say I thought that question (a) as currently drafted – I am sorry to interrupt – was directed at your 7.  Am I missing something?

MR HILL:   So 7 of the ‑ ‑ ‑

HER HONOUR:   Your submissions.

MR HILL:   Yes, it is meant to capture all the various permutations, your Honour.

HER HONOUR:   So what is missing?  I know I am being slow about this, but I understand that 34(a) which is now proposed by the plaintiffs, I had thought would have picked up your argument in paragraph 7.  Am I wrong about that?

MR HILL:   The only reason it would not, your Honour, is because of the specific reasons given in question (a) as to why it might not, being all matters going to their retrospectivity point.

HER HONOUR:   I interrupted – how did you propose to resolve it?

MR HILL:   I was wondering, your Honour – the question that we originally posed, “Does the Act apply?” if we said instead “Is that section capable of applying as a matter of construction to the plaintiff” and the reason for adding those words would be to make it clear that all the Court is being asked to determine are constructional issues, not factual issues.

HER HONOUR:   I must say I find this distinction between fact and application of statute as a matter of construction difficult in this sense.  Either there are sufficient facts agreed to enable it to be resolved, or there are not.  Deciding questions of statutory construction in a vacuum is very, very dangerous.

MR HILL:   Your Honour, I heartily agree.  My submission would be there at least needs to be sufficient facts so exactly as your Honour says, that questions of construction are not decided in a vacuum.

HER HONOUR:   Otherwise it just becomes hypothetical.

MR HILL:   Exactly, your Honour.  There is no possible way of construing the section with a blank page of the statute - has to be this particular person, their particular offence, at least at some level being before the Court.  Now, I think where the factual disagreement between the parties arises is if the plaintiff’s argument is rejected, so the section is not determined just by the

elements of the offence, your Honour would have seen the State says well, then the Parole Board can have regard to a wide range of material.

I think the concern between the parties is that if we got to that stage then that would not be a trial of fact – or issues of fact that could satisfactorily be resolved in this Court.  What that raises then is two issues:  is it possible in this Court to get a ruling on the constructional questions or is it necessary for all issues to be dealt with together in which case it would need to be remitted.  I think they seem to be the choices, your Honour.

HER HONOUR:   I will hear from Mr Horan.  I think we are down, it seems to me, just to the form of questions.

MR HORAN:   Your Honour is quite correct that it is dangerous to pose questions of construction in the abstract and it is for that reason that the two questions (a) and (b) based on the issues of construction raised by the plaintiff in the pleaded case are framed to pick up only those questions for which there are sufficient facts agreed.  So question (a) ‑ ‑ ‑

HER HONOUR:   I understand.

MR HORAN:   It is agreed as to when the application was made and when the non‑parole period ended.  Question (b) it is agreed that it was not an element of the offence.

HER HONOUR:   Yes.

MR HORAN:   Beyond that, as we have sought to say, they are the only issues of construction that are raised. 

HER HONOUR:   What do I do about paragraph 7, though, of their submissions?  Is that open to them?

MR HORAN:   It is open to say in rejecting the plaintiff’s – the construction for which the plaintiff contends that would be one of the alternative constructions that would be contended for by the defendant and if they are right ‑ ‑ ‑

HER HONOUR:   Does that answer my question?  Does that mean that in response to question (a), which is what I put to Mr Hill ‑ ‑ ‑

MR HORAN:   I do not think it deals with question (a).

HER HONOUR:   No, sorry, let me finish.  In response to question (a), is it open to the defendant to run what is set out in paragraph 7?

MR HORAN:   I did not take paragraph 7 as responsive to the existing claim about retrospectivity.  I think paragraph 7 is directed to the construction of section 74AAA as to what the factum ‑ ‑ ‑

HER HONOUR:   So is that (b)?

MR HORAN:   The trigger is (b) and the arguments in the defendant’s submissions at paragraphs 7, 8 and 9 are all reasons why the Court would answer the question unfavourably to the plaintiff.

HER HONOUR:   Which question, 7(b)?

MR HORAN:   Question (b) because it is not, on its proper construction, limited to circumstances where it was an element of the offence.  So the question would be answered “that would dispose of the claim raised on the pleadings”.

HER HONOUR:   But there is no question on the pleadings.  The special case – we are limited to what is in the special case.

MR HORAN:   Yes, it would deal with the threshold issue of construction as to whether it is limited in that way and then if not the application of section 74AAA, we say, would go on to be dealt with elsewhere, not by this Court.  That is not to say that the Court would not consider all of the competing arguments about what the proper construction is, but they would do so in order to answer question (b).

HER HONOUR:   My concern is this, though, Mr Horan, to be blunt.  Question (b) is directed at an element of the offence.  It is specific.

MR HORAN:   Yes.

HER HONOUR:   The way I read paragraphs 7, 8 and 9 of the defendant’s case they are more general, that is they are directed at additional facts and matters in answering a general question of construction not limited to elements of offence.  So they may be answers to that question, but I would not want it to be said that they are not open to the defendant to run it.  In other words, what I am concerned about is that this goes up to the Full Court, in a sense, half baked, without having all of the constructional questions alive and able to be determined.  That is my concern.

MR HORAN:   On our submission, all of the competing constructions would be up for grabs or open to be considered in submissions in order to answer the question whether the plaintiff’s contended construction is correct or incorrect.  The only thing that is left is that if it is incorrect, and so it might have the meaning the defendant contends for in paragraph 7, it might have the construction that the defendant contends for in paragraph 9 of its submissions that it will be unnecessary ‑ ‑ ‑

HER HONOUR:   The Court would not go on to work out the answer to that question.

MR HORAN:   Or critically the application of the section on that construction because there will not be sufficient facts to ‑ ‑ ‑

HER HONOUR:   That is what worries me.

MR HORAN:   All that means is – that is why the question is drafted narrowly because on the agreed facts the Court can answer whether or not the section is capable of applying to the plaintiff on those agreed facts.  If it is capable of applying then the question whether it does apply remains to be determined probably elsewhere.

HER HONOUR:   So where, for example – 9(b) and (c) in the defendant’s submissions, are they addressed in your mind by reference to the special case as a matter of fact?

MR HORAN:   They are not addressed as a matter of fact.

HER HONOUR:   That is the problem.

MR HORAN:   We say it is not a problem because it would – if, as a matter of construction the section 74AAA is not limited to the elements of the offence then that results in a clear answer to question (b) and it does not require the Court to go on to consider whether the section in fact applies on the broader basis for which the defendant contends.

HER HONOUR:   How else could it apply?  I mean, that is the question.  Is that not what the Court is being asked to determined, what are the metes and bounds of its application?

MR HORAN:   Yes, but not as a matter of fact.  So that, for example ‑ ‑ ‑

HER HONOUR:   That just begs the question, though.  Ordinarily you would have the facts agreed.

MR HORAN:   The difficulty is that if the rather nebulous concept of the basis of the conviction and sentence would then require, if the parties were to address competing arguments on the application of the section on that construction, a great range of factual material going to, at the very least, the record of the trial and that is what we are seeking to avoid.

HER HONOUR:   Yes, I understand.

MR HORAN:   So this way the Court can still consider the arguments as to construction but the only question that needs to be answered is, is the section capable of applying on the agreed fact that it was not an element of the offence that this mental element be established.  That is either right or wrong and if the plaintiff is wrong and the section is capable of applying, then subject to the answers to the other questions that will then be addressed at a subsequent stage and probably not in this proceeding.

HER HONOUR:   Yes, I understand.  All right. 

MR HORAN:   I should make clear that we certainly do not want to confine the issues of the arguments as to the construction that would be put before the Court but we are seeking to avoid having to get into broader questions of fact in the special case by essentially isolating the threshold question that the plaintiff wants to raise in this proceeding which would be a knockout point as to the application of the section.

HER HONOUR:   Thank you.  Mr Hill, I think what I will do in these circumstances is this, subject to what you might say.  I think (a) and (b) are sufficiently – I understand why they are focused and I do not think (a) and (b) preclude you from running 7 to at least 9(a).  If I am wrong about that then you will need to tell me why, I think.

MR HILL:   Your Honour, I only wanted to raise it as a concern because what I did not want to happen is to turn up in a Full Court having not raised it and then to be told in fact we could not raise the arguments raised in 7 of this submission.

HER HONOUR:   Yes.  So the way I see it is this, that if you read 34(b) there is one agreed fact that it is not an element of the offence.  The question which then arises is, is it capable of applying having regard to the terms of 74AAA(6).  That seems to me to enable you to run the argument that it operates by reference to the opinions of the Parole Board, not by reference to that fact.

MR HILL:   Yes, your Honour.

HER HONOUR:   Whether it is a jurisdictional fact or otherwise I will put to one side.  Second, 8 worries me a bit in the sense that what this – are there facts before the Court in the special case that would enable it to answer that question or at least consider that argument, I meant to say.

MR HILL:   I think, your Honour, the arguments that the State would see as being open on the special case when it is deliberately confined are 7 and 9(a).  So the State, if this proceeding goes further, has further arguments in its locker – 8 and 9(b) and (c).  My assessment of the special case is that the Court does not have sufficient facts to deal with those arguments, but I think where the parties have got to is there is benefit in at least dealing with 7 and 9(a).

HER HONOUR:   Okay, 7 and 9(a).

MR HILL:   They are both questions of construction.  They can both be dealt with by this Court.

HER HONOUR:   If they are answered favourably to you then you win.

MR HILL:   Then we win.

HER HONOUR:   And that is the end of it.

MR HILL:   Yes.

HER HONOUR:   If they are answered favourably to the plaintiff then there will be stage 2, possibly not in this proceeding but somewhere else.

MR HILL:   If they are answered favourably to the plaintiff – if we are wrong about 9(a), if they are right – we have admitted that these are not elements of the offence, I think the plaintiff would have to win.

HER HONOUR:   Yes, all right.  I understand - on the construction question.

MR HILL:   Yes, but if we are right we would say that should be the end of the case.

HER HONOUR:   Yes, all right.  On that basis, I think, subject to both of you getting instructions, I understand it is the current draft by the plaintiff with that additional factual matter of “Angela Taylor was a constable with the Victorian Police Force” between 6 and 7.

MR HILL:   Yes, your Honour.

HER HONOUR:   That leaves, it seems to me, two questions.  The first is what is to happen today – or this week in Parliament.

MR HILL:   Yes.

HER HONOUR:   Secondly, depending upon what happens, whether or not this needs to be further amended to deal with that question.

MR HILL:   If and when the Bill is passed.  It may not be this week but one does not like to attempt to predict.

HER HONOUR:   No, I know that.

MR HILL:   I think my learned friend and I are on the same page here.  The only relevant fact to be added would be this Bill was passed in this section commencing on this day.  That should be obvious on the face of the Act as it becomes – and then as I understand my learned friend, the other facts would – there is no point rearranging the facts.  We will just add that new fact and then the arguments that the plaintiff might seek to make about it may change, rather than being a constructional argument about the original section it might be a constructional argument about both sections.

HER HONOUR:   Yes, I see.  So what do you propose?  It seems to me that now we have got to this point, rather than have two special cases we should just wait, unless you think otherwise, till the end of the week to see what happens ‑ ‑ ‑

MR HILL:   Yes, your Honour, I agree.

HER HONOUR:   Then what I propose is that, that the two of you can have a chat to each other and you can let the Court know early next week whether or not I am in a position to refer it and what is the content of it to be referred, having regard to what happens this week.  Now, it may be that – as you say we cannot predict what is going to happen but perhaps you can then just let the Court know and we can make a decision.

MR HILL:   Yes, your Honour.

HER HONOUR:   Does that suit you, Mr Horan?  I do not want to keep bringing you back, that is all, and I am very grateful to both you and your junior.

MR HORAN:   I was going to say something similar which was that if the Bill were at least passed this week, put aside royal assent ‑ ‑ ‑

HER HONOUR:   Yes.

MR HORAN:   ‑ ‑ ‑ then we can probably agree between us, if not the actual revised form of special case, a very quick timetable to just file the paperwork.

HER HONOUR:   I am sure you can, yes.

MR HORAN:   So that it is all complete by ‑ ‑ ‑

HER HONOUR:   End of January or something.

MR HORAN:   Yes.

HER HONOUR:   I do not want you to work over the holidays.

MR HORAN:   I do not think it will take much work.

HER HONOUR:   I do not think it will either.

MR HORAN:   It only really requires that additional fact and maybe a change to the questions, which I think will be uncontroversial.

HER HONOUR:   Why do I not do this?  I will leave it and let us see what happens this week.  Can you speak to Mr Hill at your leisure in the week before Christmas?

MR HORAN:   Yes.  The only other thing I was going to suggest that if the Bill is not passed whether it might be appropriate to refer the case in its current form with a view to picking up any amendments if necessary at the start of next year.  But we can talk about that.

HER HONOUR:   Can you have a chat about that and just see – I think the sooner it happens the better.

MR HORAN:   Yes, just to get the ball rolling.

HER HONOUR:   I think so.

MR HORAN:   But we will know more, obviously, on the 15th and I can certainly talk to my learned friend next week.

HER HONOUR:   I am very grateful.  Thank you.  Mr Hill?

MR HILL:   There was one last thing, your Honour.

HER HONOUR:   Yes, please.

MR HILL:   Since we are at the state of special case, I wonder whether your Honour would require the parties also to amend pleadings if this Bill is ‑ ‑ ‑

HER HONOUR:   I think that is what Mr Horan was talking about, amending the paperwork.

MR HILL:   I see, your Honour.

HER HONOUR:   I just assumed that is what you would do between you.  I do not propose to make orders or directions about that.  You two, as you have in the past, can just agree it between yourselves.  If there is a problem about that you can let me know and I will make orders in chambers.

MR HILL:   If the Court pleases.

HER HONOUR:   Is that all right with you?

MR HILL:   Yes, your Honour.

HER HONOUR:   The only other practical matter – and it is only just me being pedantic – I wondered whether in the chapeau in paragraph 1 the agreement of the parties to the facts stated should also be “as not being relevant extends to documents annexed” but I leave that as a matter for you.  Can I thank you all for your assistance. 

Adjourn the Court.

AT 10.19 AM THE MATTER WAS ADJOURNED