Monday (a pseudonym) v The Queen

[2022] HCATrans 226

[2022] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C11 of 2022

B e t w e e n -

MONDAY (A PSEUDONYM)

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 15 DECEMBER 2022, AT 1.29 PM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court pleases, I appear for the applicant.  (instructed by Paul Edmonds & Associates)

MS S.G. CALLAN, SC appears with MS A.F. GARSIA for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

KIEFEL CJ:   Yes, Mr Wendler.

MR WENDLER:   Your Honours, before I open the application, can I just refer to two preliminary matters.  Yesterday there was an affidavit filed, and it was raised by my instructing solicitor, and it concerned information pertaining to the person I will describe as a non‑curial entity ‑ ‑ ‑ 

KIEFEL CJ:   The third party?

MR WENDLER:   Yes.  Third party entity.  As your Honours – your Honours have that, thank you.

KIEFEL CJ:   Yes, thank you.

MR WENDLER:   The other matter is that there was previously filed an unredacted copy of the reasons for judgment which goes into greater detail concerning the mental health status of the non‑party or third party.

If I move now to the application, your Honours, the application raises matters of general importance to the administration of criminal and civil justice from the perspective of the open justice principle and its legal relationship with laws which deal with the suppression of evidence or the non‑publication of evidence and the consequences to third parties, or the penitential consequences to third parties.

It is a fact that historically this Court has had occasion to examine and analyse the concept of open justice and its importance.  Obviously, it is of vital importance to a functioning and healthy democracy.  It can only yield in special circumstances when evidence is sought to be handled in a way which removes it or challenges the concept of the open justice system.  Now, I was alluding a moment ago to cases as long ago as Russell v Russell, Hinch v Attorney General of Victoria, and, in 2011 Hogan v Hinch, where there was significant treatment by Chief Justice French of the concept of open justice and its importance.

Ultimately in this matter there arose a tension between the maintenance of the open justice imperative and information which was directly relevant to the applicant because of the filial relationship he obviously has with his son.  The evidence before the magistrate and before the Court of Appeal was that the son of the applicant has a serious history of mental illness which, it would appear on the evidence, will control his life and all aspects of his life forever.

The judgment of the Court of Appeal, the applicant submits, was erroneous in the sense that it treated the open justice system or treated rather, the approach by Chief Justice Murrell in such a way that it considered the fact that once the proceedings had concluded in relation to the applicant, in other words, once the controversy had been quelled to finality, the interests of justice had been resolved and as a consequence ‑ ‑ ‑

KIEFEL CJ:   Mr Wendler, if one puts aside the temporal element of whether the proceedings have been completed or not, the essential point that I think both the primary judge and the majority in the Court of Appeal found was that section 111 of the Evidence Act, whilst giving it power to prohibit publication and therefore effecting an injustice in principle, is limited to where it would either prejudice, or be in the interests of the administration of justice.  That is really the hurdle that you need to overcome, is it not?

MR WENDLER:   Well, yes.  And it may be useful immediately to invite your Honours to page 45 of the application book which sets out the controversy arising from the language of section 111.

KIEFEL CJ:   I am sorry, which page?

MR WENDLER:   Page 45 of the application book, section 111 of the Territory Act is set out there.  Your Honour the Chief Justice is correct that the focus is upon two areas:  prejudice to the administration of justice; and the concept of the interests of the administration of justice.  However, when one goes to 111(2), the statutory language reads that:

The court may at any time during or after the hearing of the proceeding, make an order forbidding publication of –

and so on.

KIEFEL CJ:   But that is subject to subsection (1), is it not?

MR WENDLER:   Yes.

KIEFEL CJ:   The section only applies if subsection (1) bites on the circumstances.

MR WENDLER:   Yes.  Then it comes back to the ambit or reach of the legislation, and also the inherent jurisdiction that the court has; not to, in effect, have the administration of justice turn in on itself, in other words, create a prejudice via the applicant which is damaging in the end to the administration of justice.  The critical issue here in this application is as to whether and to what extent does the principle of open justice yield in circumstances of this kind, given obvious matters such as the prevalence of social media, the way people communicate with each other instantaneously and indirectly and so on.  But the ramifications for the administration of justice in the circumstances of this case are such that there would be damage which can be ameliorated or avoided altogether.

KIEFEL CJ:   Well, is the effect of the majority in the Court of Appeal not, though – its finding – conclusion – that the principles of open justice yield to the extent of the section 111(1) – that is, where there is prejudice to, or it is in the interests of the administration of justice that names not be published?

MR WENDLER:   That is only if you read the section down, like the Court of Appeal did, and not consider the concept of the administration of justice as being ‑ ‑ ‑

KIEFEL CJ:   Just excuse me, Mr Wendler.  Ms Callan, I do not think you are on mute, we can hear pages turning and – yes, thank you.

MR WENDLER:   If one considers the principle, or prejudice to the administration of justice that immediately arises, what is the ambit – when does it begin, when does it end, and the Court of Appeal came to the conclusion that it was terminated at the time the controversy was quelled by the punishment of the applicant.

The dissenting opinion by Justice Loukas‑Karlsson was in contradistinction to the approach by the Court of Appeal and proceeded to give the section a much more generous and wide‑ranging legal effect which, in my respectful submission, was open on the language of the section, in particular having regard to the observation that the administration of justice does not just end but can continue against even a non‑party if the ramifications of not doing so would in fact damage the administration of justice and lead to public opprobrium and public disrespect of the rule of law and the administration of, in this case, criminal justice.

Your Honours, the importance of the application turns effectively on the circumstances and consideration of this concept of the administration of justice, and the open justice system, and the legal relationship between the two.  In Hogan, Chief Justice French made it quite clear that the open justice concept was not absolute and must, in certain circumstances, yield, otherwise there would be public disrespect and a lack of confidence in the system, and also it would not be consistent with the health of a vibrant

democracy, and the open justice system, of course, is imperative in such circumstances.

So, your Honours, it is my submission that it is an appropriate vehicle for a grant of leave in relation to the special circumstances of this case.  The justice that would flow if the interpretation that was adopted by the Court of Appeal is supported in the circumstances.

If the Court pleases, they are my submissions.  Thank you.

KIEFEL CJ:   Yes, thank you, Mr Wendler.

We need not trouble you, Ms Callan.  We are of the view that there are insufficient prospects of success in this matter to warrant the grant of special leave.  Special leave is refused.

MR WENDLER:   Just before your Honours rise, can I make this, it is an unusual application under section 77RE of the Judiciary Act, that the applicant’s name be suppressed for 48 hours to allow the applicant to make such arrangements in relation to his son to give his son certain information before the son finds out indirectly by other means.  Apparently, this is a matter which is of great concern to the applicant.

KIEFEL CJ:   There is a stay operating at the moment, is there not?

MR WENDLER:   Yes, it is set out in the application book, in the nature of a self-executing order, it is page 35 of the application book.  As your Honours can see, it is in the nature of a self-executing order, it would – it is stayed only up until, effectively, the dismissal of this application, which has now been dismissed, of course.  So, my application is that there be a further order in respect of section 77RE suppressing the name of the applicant for 48 hours.

KIEFEL CJ:   Ms Callan, is there a practical answer to this before we have to consider applications for orders?  Is there a practical answer to this?

MS CALLAN:   Nothing that comes to mind immediately, your Honour, in circumstances where the stay is self‑executing upon the determination of the special leave application, and in circumstances where it is really the public at large that may be involved in any publication in relation to the name of the offender.  That is, it is not within the control, for instance, of the Commonwealth DPP.

KIEFEL CJ:   Did you have notice of this application?

MS CALLAN:   I did not, and I do not have specific instructions.

KIEFEL CJ:   What section was the application brought under?

MR WENDLER:   I am sorry, your Honours, it is section 77RE of the Judiciary Act.

KIEFEL CJ:   Is not the difficulty with the application that the proceeding has been dismissed?  It is no longer before the Court.  Perhaps you should have foreshadowed ‑ ‑ ‑

MR WENDLER:   The other difficulty, of course, is that the special leave application is not a proceeding, I suppose.

KIEFEL CJ:   No, that is right, it is not.  It is the preliminary to the proceeding.

MR WENDLER:   Yes.

MS CALLAN:   Also, your Honours, if I might observe, the power is to be exercised pursuant to the grounds identified in section 77RF, which relevantly, in a sense invokes the very same considerations ‑ ‑ ‑

KIEFEL CJ:   Which have been – yes.

MS CALLAN:   About which your Honours are not persuaded there are sufficient prospects.

KIEFEL CJ:   I am sorry, Mr Wendler, we sympathise, but I do not think there is any basis for us to make the orders sought.

MR WENDLER:   Yes, thank you.

KIEFEL CJ:   The Court adjourns until 2.30 pm.

AT 1.44 PM THE MATTER WAS CONCLUDED