Momcilovic v The Queen & Ors
[2010] HCATrans 261
[2010] HCATrans 261
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M134 of 2010
B e t w e e n -
VERA MOMCILOVIC
Appellant
and
THE QUEEN
First Respondent
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA
Second Respondent
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION
Third Respondent
Directions hearing
FRENCH CJ
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 8 OCTOBER 2010, AT 2.15 PM
Copyright in the High Court of Australia
MR M.J. CROUCHER: May it please the Court, I appear on behalf of the applicant. (instructed by Melasecca, Kelly & Zayler)
MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned friend, MR C.W. BEALE, on behalf of the first respondent. (instructed by Solicitor for Public Prosecutions)
MR S.G.E. McLEISH, SC: If it please the Court, I appear with my learned friend, MR A.M. DINELLI, for the second respondent. (instructed by Victorian Government Solicitor)
MR E.M. NEKVAPIL: May it please the Court, I appear for the third respondent. (instructed by Victorian Equal Opportunity and Human Rights Commission)
HIS HONOUR: I have directed that this matter be called before me because of a letter received from the Victorian Government Solicitor’s Office requesting that the matter, which is presently listed for hearing on 30 November and 1 December, should be listed on a later date on the basis of the pending Victorian State election. I wanted to hear from the parties in relation to that, although I understand from the letter that there was no objection from the appellant – I wanted to hear from the parties because it is ordinarily desirable that a criminal appeal should be dealt with at the earliest opportunity and the question arises whether there are particular circumstances, having regard to the caretaker conventions and the like, that warrant that removal, so, perhaps whichever emanation of the State of Victoria wishes to address me on this occasion.
MR McLEISH: I think that is us, your Honour.
HIS HONOUR: Yes, Mr McLeish.
MR McLEISH: Your Honour, the purpose of the letter was to ensure the Court was aware of the imminent caretaker period and the date of the election, given that it is fixed by statute and therefore does not necessarily attract public attention well in advance.
HIS HONOUR: I notice this was not raised, incidentally, at the special leave application.
MR McLEISH: No, that is right, your Honour. It had slipped people’s minds, I suspect. The purpose of the letter was to request that consideration be given to a different date and the principal sorts of concerns which motivated the letter were the range of possibilities that might eventuate at a general election. We have recently seen an example of an extended caretaker period, of course, at the federal level. Equally, a change of government might give rise to a change of instructions or the existence of a – save uncertainty or a pending change of government might give rise to a difficulty in obtaining instructions ‑ ‑ ‑
HIS HONOUR: Can I just ask you about that incidentally? I mean, I am not being facetious when I say that the State of Victoria does seem to be covering all bases at the moment. Is that really a tenable position? It is not as though, as I understand, Mr Silbert is appearing for the Director of Public Prosecutions or in some independent statutory capacity. It is the Queen and the Attorney‑General.
MR McLEISH: That is correct, your Honour. The Attorney’s concern was that in relation to the Charter issues, in particular, and the validity issues in relation to that, that if there were a change of government or a need for instructions about that in a situation where there was an uncertain election outcome, either of those eventualities might disrupt the orderly hearing of the matter and a different Attorney may well take a different position, give different instructions on some of those matters. It would be undesirable for that state of affairs to emerge immediately before the hearing as it would be by reason of the dates, the three‑day period.
We note, of course, what your Honour says about a criminal appeal and accept, of course, that a great deal depends on the position of the appellant in that regard. We make no formal application for a change in the hearing date. It is a matter of raising these matters to ensure the Court is aware of them.
HIS HONOUR: Am I right in saying that the appellant had actually completed serving her entire sentence as varied by the Court of Appeal by virtue of the effect of the Court of Appeal’s decision? She was otherwise out on parole, I think, was she not?
MR McLEISH: Yes, that is my understanding. Yes. There may be some complexities, I am hearing to my right. It is probably a matter on which Mr Croucher is best ‑ ‑ ‑
HIS HONOUR: In any event, is the position that – yes, perhaps I will hear from Mr Croucher, but your understanding is that she has no further time to serve on any view?
MR McLEISH: That is my understanding. Yes, your Honour. So those were the matters that the Attorney was concerned to bring to the Court’s attention really with a view to avoiding the possibility of disruption. We do not ask your Honour, of course, to rule on different hypothetical situations that may arise or how the conventions would apply or anything of that nature. It is more for the smooth running of the case.
HIS HONOUR: I am assuming you have provided me – or the Victorian Government Solicitor’s Office provided me in their letter with a copy of the guidelines to the caretaker conventions and, as I understand it, there is no statutory backing for those in Victoria. They are simply standard form guidelines used around the States and in the Commonwealth. But I think they are silent, are they not, on the question of the conduct of litigation?
MR McLEISH: They do not address it expressly, no, your Honour.
HIS HONOUR: Yes.
MR McLEISH: So I do not invite your Honour to get into the detail but there would no doubt ‑ ‑ ‑
HIS HONOUR: I was told that there might be impediments by reason of the caretaker conventions and that is what I was looking for.
MR McLEISH: Yes, it depends on concepts such as major policy decision or implementing a policy decision, views as to what those things involve and whether the making of submissions on one subject or another subject might come within those categories. It is the addressing of those sorts of questions which the Attorney was concerned to avoid if that is possible, but quite apart from the Conventions, the potential difficulty really arises most acutely if the result of the election on the 27th either gives rise to different instructions or is uncertain, which may make the getting of instructions, if that was necessary in the running of the case, difficult.
HIS HONOUR: Now, to come back to the point which I do not think you answered, who instructs Mr Silbert? Is it somebody different from the person who instructs you?
MR McLEISH: Yes, it is, your Honour.
HIS HONOUR: Constitutionally?
MR McLEISH: I think Mr Silbert is probably again in the best position to answer that question.
HIS HONOUR: You take your instructions, in effect, from the Attorney‑General?
MR McLEISH: From the Attorney‑General, yes, via the Victorian Government Solicitor’s Office.
HIS HONOUR: Yes, that is the administrative ‑ ‑ ‑
MR McLEISH: The statutory office of the Office of Public Prosecutions is just that, a statutory office in a separate position.
HIS HONOUR: The DPP is not involved in this litigation, as I understand it.
MR McLEISH: I do not think I should answer for Mr Silbert on that one, your Honour.
HIS HONOUR: Well, it is a point I made last time. We have the Queen and the Attorney‑General.
MR McLEISH: Yes.
HIS HONOUR: I mean, if there is a party issue that needs to be sorted out.
MR McLEISH: The Attorney‑General is really here by virtue of provisions of the Charter, which entitle the Attorney‑General to be joined in a matter raising the Charter in that separate capacity. That is the particular basis on which the Attorney is here. Of course, given the section 78B notice, the Attorney would also be here in the capacity of responding to that notice, but, yes, I accept ‑ ‑ ‑
HIS HONOUR: He is not here in a different capacity from his capacity as, as it were, a minister of the Crown.
MR McLEISH: No. He is still in that capacity, your Honour.
HIS HONOUR: All right. Thank you, Mr McLeish.
MR McLEISH: Thank you, your Honour.
HIS HONOUR: Mr Croucher.
MR CROUCHER: Thank you, your Honour. The custodial position, if you like, of the appellant is that when the Court of Appeal handed down its judgment on 17 March 2010, the court substituted a sentence of 18 months imprisonment and suspended all but the two months or so, roughly, that she had spent in custody previously so that approximately 16 months was suspended for a further 16 months as of that date. So until July 2011, roughly, she will have that suspended portion hanging over her head. The custodial portion is now gone. So it is a bit different from the usual situation.
HIS HONOUR: Just let me have a look at the order. The original sentence that was imposed on her was 27 months with a non‑parole period of 18 months, I think, was it not?
MR CROUCHER: That is right and she spent approximately two months in custody before she was granted bail by the Court of Appeal.
HIS HONOUR: I see. Yes. So the 18 months was ‑ ‑ ‑
MR CROUCHER: No, then the appeal was allowed – the sentence appeal was allowed and she was resentenced to a term of 18 months imprisonment in total, not 27 ‑ ‑ ‑
HIS HONOUR: So, in effect, she had done the two months she had to serve under that varied sentence?
MR CROUCHER: Indeed.
HIS HONOUR: Yet she is still serving a suspended sentence?
MR CROUCHER: Yes. So, technically speaking, were she to be in breach of the terms of that suspended sentence between now and some time in July of next year, then she will be liable to be dealt with under the terms of breaching a suspended sentence. But she is not in custody and she is not at risk of being in custody unless she was to commit an offence basically.
HIS HONOUR: Yes.
MR CROUCHER: So it is quite different from the usual situation. The appellant’s position, your Honour, is that there is no objection to the – if it is an application or ‑ ‑ ‑
HIS HONOUR: Well, it does, despite what Mr McLeish said, the letter said “We write to request that consideration be given to listing the matter on later dates”. I was assuming that was not just for our information.
MR CROUCHER: The appellant understands the difficulties that have been raised by the Attorney.
HIS HONOUR: One of the concerns I had here also, just looking back at the record, is that there does seem, even though she has been on bail, to have been a considerable delay in resolving the appellate process.
MR CROUCHER: There has been.
HIS HONOUR: She lodged her appeal in August 2008. She did not get heard until July 2009 and did not get judgment until March 2010. Did she contribute in any way to that, or was ‑ ‑ ‑
MR CROUCHER: No, your Honour.
HIS HONOUR: Yes, all right. Thanks, Mr Croucher. Mr Silbert.
MR SILBERT: Your Honour adverted at the special hearing application to the bifurcation of the position of the Crown. The Director of Public Prosecutions prosecutes indictable offences in this State on behalf of the Crown under the Public Prosecutions Act 1994.
HIS HONOUR: Yes.
MR SILBERT: So I appear effectively on behalf of the Crown pursuant to the provisions of that Act. The Attorney‑General’s involvement comes under section 34 of the Charter of Human Rights which affords to the Attorney‑General a right to intervene.
HIS HONOUR: It is not unusual, of course, where you would have the DPP as a statutory office, to see the DPP as a party. The DPP in this case is instructing you on behalf of the Crown. Is that how it works?
MR SILBERT: Your Honour, there is a degree of confusion. As I understand it, the way these cases have traditionally been named is that the Crown has been the prosecuting party in criminal trials in Victoria prosecuted by the DPP. There was some debate before the High Court some years ago as to whether the proper party was the DPP or the Crown and I think it was resolved that the proper party was the Crown.
HIS HONOUR: Do you have that reference or can you let us have it at some stage?
MR SILBERT: Yes. I can tell your Honour that I think the last case prosecuted – or that came out of Victoria before the High Court was a case called The DPP v Zecevic and I think Chief Justice Brennan thereafter directed that further cases coming out of Victoria should be styled “The Queen against ‑ ‑ ‑
HIS HONOUR: So it is down to my predecessor, is it?
MR SILBERT: Yes, your Honour. As I understand it, there is legislation going before the Victorian Parliament to change the style of these cases so that they will be known as “DPP against” in much the same way as in Western Australia they are now styled “The State of Western Australia against”. I do not know whether it has gone through Parliament or not as yet, but most criminal cases are still listed as “The Queen against” and effectively they are prosecuted under the Public Prosecutions Act by the Director of Public Prosecutions. So technically, whether the style changes and they are styled “DPP” or not, the Crown is still probably the proper party to a criminal prosecution constitutionally the way they are brought.
HIS HONOUR: But under the statute you could not receive instructions from the Attorney‑General.
MR SILBERT: No, I could not, your Honour.
HIS HONOUR: So that is effectively barred?
MR SILBERT: Yes. But whether that entitles me to be a contradictor in relation to the submissions put by the Attorney‑General in relation to the interpretation of the Charter is a matter your Honour is going to have to determine at some point in the future, I suspect.
HIS HONOUR: Well, I think you are going to have to address it.
MR SILBERT: Yes. I am conscious of that, your Honour.
HIS HONOUR: Yes, all right.
MR SILBERT: Our position is that Mrs Momcilovic is not incarcerated and runs no risk of going back into custody so our position is a neutral one. We really are neutral as to whether the matter proceeds on 30 November or goes off to a later date.
HIS HONOUR: All right. Thank you. Can I just ask whether all parties would be ready to proceed if we list the matter in the February list, that is, the first week of February?
MR CROUCHER: Personally it would present a difficulty. I am away for the whole of January, but if it were going to happen in the first week of February, if we had a timetable that meant that submissions were completed before Christmas that would assist perhaps.
HIS HONOUR: Yes. Well, we have sittings on the week commencing the 1st and then, of course, the week commencing 7 February.
MR CROUCHER: The second week would be preferable if we have any say in the matter, your Honour.
HIS HONOUR: Well, I will take – now, is there anybody else who has any difficulty?
MR SILBERT: No, your Honour.
MR NEKVAPIL: No, your Honour.
HIS HONOUR: All right. While I must say that I did regard the letter from the Victorian Government Solicitor’s Office as a request to relist the matter, I have had the concern, which I have already expressed, about the considerable delay that has occurred in the appellate process, notwithstanding that the appellant was on bail and, of course, she is still subject to the suspended sentence which was imposed by the Court of Appeal when it varied her original sentence.
In the present case, however, I am satisfied that, although it is ordinarily undesirable to delay the hearing of an appeal in respect of a criminal matter which has been listed, there are factors peculiar to this case which warrant removing it from the list and relisting it in February. They are, firstly, that the appellant does not object to the application; secondly that there are, I accept, practical difficulties in an election period in obtaining instructions from government which are also reflected in or added to by the spirit, if not the letter, of the caretaker conventions applicable in Victoria, a copy of the guidelines to which I have been provided; thirdly, the case does involve an important Victorian statute and is in the nature of a test case. Moreover, it does have constitutional implications which have led to the issue of section 78B notices at the suggestion of the Court at the special leave hearing. Finally, it is possible to list the matter for hearing in February, so I propose to direct the Acting Senior Registrar to take the matter out of the list on 30 November and 1 December and I will consider it then for relisting on dates in February, possibly in the second week.
Thank you. I will now adjourn.
AT 2.34 PM THE MATTER WAS ADJOURNED
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