Monis v Regina; Droudis v Regina [2011] HCATrans 97

[2011] HCATrans 97

[2011] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S62 of 2011

B e t w e e n -

MAN HARON MONIS

Applicant

and

REGINA

Respondent

Office of the Registry
  Sydney  No S107 of 2011

B e t w e e n -

AMIRAH DROUDIS

Applicant

and

REGINA

Respondent

Applications for special leave to appeal

FRENCH CJ
GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 APRIL 2011, AT 11.17 AM

Copyright in the High Court of Australia

__________________

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear for the applicant, Droudis, with my learned friend, MR S.E. GRANT.  (instructed by Ford Criminal Lawyers)

FRENCH CJ:   Thank you, Mr Bennett.

MR BENNETT:   Your Honours, we would ask that the matters were heard together and it has been agreed between the applicants that I should address your Honours first.

FRENCH CJ:   Yes, thank you.

MR G.O’L. REYNOLDS, SC:   If the Court pleases, I appear for the applicant, Mr Monis, with my learned friend, MS G.R. RUBAGOTTI.  (instructed by Sydney Defense Lawyers)

MR J.V. AGIUS, SC:   May it please the Court, I appear for the respondent in each matter, with my learned friend, MR M.G. McHUGH.  (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ:   Yes, Mr Bennett.

MR BENNETT:   If your Honours please.  Your Honours, the issue in this case is an important one in a developing area of the law.  In Coleman v Power this Court delivered six judgments and it would be fair to say that it divided three/two, one/one.  This case is distinguishable from Coleman v Power in two major respects.  That case concerned the phrase “insulting words”.  This case concerns a provision which refers to conduct that – words “that reasonable persons would regard as being offensive”.  So it involves, first, the distinction between offensive and insulting and secondly, the significance of the words “reasonable persons would regard as”. 

CRENNAN J:   One other practical difference is in Coleman v Power the argument as to constitutional invalidity was run at first instance in the Magistrates Court as part of the defence, was it not - the defence to the charge and then on appeal in the Court of Appeal?

MR BENNETT:   Yes, your Honour, whereas we seek, for a number of reasons I will come to, to have the matter removed at this stage.  But may I just say this about the difference between insulting and offensive - that the way your Honour Justice Gummow and Justice Heydon read down the words was words intended or likely to cause violent retaliation.  I am paraphrasing a little.  The point is, of course, that “insulting words” has appeared in many criminal statutes and many places for a long time.  Those words have been held to be directed primarily to the purpose of preventing a breach of the peace, the idea being that to insult a person in certain ways may be likely to provoke violent retaliation.

The purpose in relation to a prohibition on offensive behavioural words is different.  That is directed rather to the hurt feelings of the recipient of the words or a person who reads them or sees them.  In other words, the mischief being avoided is not violence, but the fact that a person may have hurt feelings, feel unhappy or disquieted and we will be submitting that in the context of the implied freedom of political communication one has to accept a far greater degree of that type of consequence than is the case in relation to words likely to provoke retaliation.  In this case we will be arguing first that the provision is ‑ ‑ ‑

GUMMOW J:   You will not be arguing anything, Mr Bennett, unless you get it removed.

MR BENNETT:   Your Honour, when I say in this case, I mean either at the trial or in this Court.  We will be arguing first that the provision is facially invalid and, in the alternative, that it should be read down.  The problem is there is great difficulty in reading it down and working out how it should be or could be read down.  In the context of a trial that has a number of consequences.  The trial is one where the Crown has indicated that it proposes to call over 90 – that is nine zero – witnesses in a case which is objectively established, one would have thought on the Crown’s case, and is objectively straightforward.  When I say established I mean will be sought to be established objectively.  The communications are in writing.  There is no doubt about who they were sent to or how they were sent.  The 90 witnesses, presumably, are going to be people who say “I am a reasonable person and I found this offensive”, or, “I was a recipient and I found it offensive and upsetting”.

CRENNAN J:   Some of those recipients lost relatives, did they not?

MR BENNETT:   Yes, that is so, your Honour, and no doubt they will be called to give evidence of the type I have referred to.  We understand there may also be evidence about the good character of some of the deceased soldiers.  But the relevance of this material is not going to affect the constitutional argument.  There may also be issues about the extent to which my client knew of various matters, in relation to her conduct.  She has not been charged as the principal.  But those questions would not assist your Honours.  The determination of those issues of fact would not assist your Honours in determining the constitutional issue. 

The central constitutional issue is the argument that the section is facially invalid.  If that succeeds we rhetorically ask would it not be undesirable that the applicants should be put to the expense and inconvenience of a trial and possible questions concerning the consequences of a conviction, pending appeal, if the whole provision is invalid.  Secondly, if it is to be read down how is the trial judge to instruct the jury when the trial judge does not know in what manner this Court, which divided in the way I have indicated in Coleman v Power, and which has not considered the issues in this case, how can the trial judge determine what should be put to the jury?

One will have the sort of problems that the Court found in Wei Tang where the Supreme Court of Victoria had to deal, in instructing a jury, with a section which had never been construed by this Court and as to which there was considerable argument about its construction.  In my respectful submission ‑ ‑ ‑

FRENCH CJ:   A pretty common problem.

MR BENNETT:   Well, your Honour, it can be a common problem, but in a case of this sort where one has a developing area of the law and such complete uncertainty, in my respectful submission, it is desirable for the constitutional and construction questions to be removed to this Court and determined before a trial in which 90 witnesses come along to say that they were offended and the judge has to work out what, if at all, is the appropriate reading down.

CRENNAN J:   So when you say desirable, Mr Bennett, you are not suggesting there is anything urgent, but you are relying on the fact that this trial is going to involve 90 witnesses?

MR BENNETT:   That is part of it, your Honour.  We have been brought into the case comparatively recently, as the chronology on pages 99 and following demonstrates.  So no delay can be attributed to us in approaching this Court in attempting to have the matter raised.  The issues are of very great public importance.  As I say there is the unfinished business from Coleman v Power and the extension of it to “reasonable persons would regard as being offensive” and how the implied freedom can stand with words of that nature. 

I do not need to take your Honours to the numerous cases in which the courts have talked about the extent to which political debate may be intemperate and may be offensive and so on, and this case is a good example of it.  It is unpopular debate, but that, of course, is the very case where the implied freedom is, we would submit, of great importance. 

There is also a secondary issue as to the extent to which the implied freedom operates in relation to communications to individuals.  We would submit it clearly does.  A communication to an individual voter, to take the obvious example, is clearly protected as is a communication in an effort to persuade a person who is likely to have some influence on other voters.  To take an obvious example, it would clearly be an important aspect of political communication to endeavour to communicate a political view to Alan Jones on the basis that it would then be communicated to many other people and to endeavour to convince him of the justice of one’s cause.

Though our case is in America, there is a case in America specifically involving demonstration at the funeral of a deceased soldier.  That is the case of Snyder v Phelps which we have provided to your Honours in the Supreme Court of the United States. It is 562 US 1 (2011). That involved signs at a military funeral saying “Thank God for Dead Soldiers”, “Fags Doom Nations”, “America is Doomed” and “You’re Going to Hell”.

GUMMOW J:   The First Amendment has not been construed for the benefit of the second limb in Lange.

MR BENNETT:   No, it has not, your Honour, but it is ‑ ‑ ‑

GUMMOW J:   Hence, from time to time in that country, what seem rather odd decisions.  We do not have to wrestle with that.

MR BENNETT:   Your Honour, the First Amendment certainly goes further than the implied freedom, but cases on it are useful as indicating aspects of it.  The phrase used is at page 12:

the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable . . . “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide ‘breathing space’ to the freedoms protected by the First Amendment.”

Now, of course, language of that type was used by Justice McHugh in Coleman v Power in relation to the heat generated by some political debate.  This case raises that issue very much more starkly and very much more clearly.  It is, in my submission, for the reasons I have given, desirable that this Court consider it and desirable that this Court consider it before 90 witnesses are called and a trial judge has to wrestle in instructing a jury with how to read down the provision, or has to determine for himself or herself the validity of the provision which, we submit, is more appropriately determined in this Court and as to which, it being a developing area of controversial jurisprudence, is far more appropriately first determined by this Court. 

For example, one question which would perhaps be of far less importance in this Court would be what is the ratio decidendi of Coleman v Power?  Yet that is an issue which considerable time may need to be spent on in lower courts if this Court does not remove the matter at this stage.  In my respectful submission, for those reasons, this is an appropriate case for removal.

FRENCH CJ:   Thanks, Mr Bennett.  Yes, Mr Reynolds.

MR REYNOLDS:   May I inquire from your Honours whether your Honours have a copy of the reply, which we filed?

FRENCH CJ:   Yes, thank you.

MR REYNOLDS:   If your Honours could perhaps have that to hand.  Your Honours, I adopt my learned friend, Mr Bennett’s, submissions in support of removal and in particular the proposition that there are a number of matters of public importance that are raised which could be appropriately determined in this Court in the first instance.  My learned friend has mentioned a few of those.  Can I just dwell briefly on some of them? 

We have mentioned in our reply at paragraph 3 – if I can take your Honours to that paragraph – the view articulated by Justice Kirby in Coleman v Power that the provisions of a statute in that case could be construed or interpreted in the light of the implied freedom, in other words if one takes the words of the statute and, as it were, squeezes them so that they conform with the implied freedom.

We would submit that issue is going to be or is likely to be live here and it raises matters of some significance, as we have said in our document.  It raises the possibility first of all of differential constructions potentially of the statue, one where the implied freedom is live, one where it is not.  Alternatively, if one is talking about a uniform interpretation it raises the possibility that even when the implied freedom is not in play that all statutes dealing with communications have to be construed so as to comply with the implied freedom.

FRENCH CJ:   But you would begin your construction by just applying normal common law principles of interpretation, including the principle of legality before you even get to the question of reading down to ‑ ‑ ‑

MR REYNOLDS:   I concede that, your Honour.  But I am trying to look at the sorts of issues that are going to be agitated before a judge of the District Court.  Your Honours Justice Gummow and Hayne – I will not take your Honours to the passage – adverted to this form of construction, but in a way that adverts to it rather than determines its appropriateness or acceptability.  That is one issue that is of some significance. 

Another one, and my learned friend, Mr Bennett, has mentioned this, is dealt with in paragraph 4 of our reply and that is really, we submit, a very difficult issue which is whether or not compliance with the second limb in Lange – that is the limb about reasonably appropriate and adapted – is a matter which can either be shunted down to the jury for them to determine in relation to the use of the words “in all the circumstances and reasonable on the statute” or alternatively, whether the judge has to give them directions so that they can address these issues.

They are the sorts of issues that the judge again in the District Court is going to have to have a look at, both in terms of directions and also in terms of whether or not there is compliance with the second limb because such directions have been given.  My learned friend, Mr Bennett, has mentioned other issues, such as whether private speech is within the implied freedom.  There are a number of those important questions and difficult questions which, we submit, arise and it would be appropriately dealt with in this Court and, with respect, are likely to end up in this Court. 

There is no factual dispute.  It is convenient, we submit, to deal with the issue of constitutional validity as a threshold point and as my learned friend has said it avoids the stress and inconvenience and expense of these two accused being put to this trial with some 90 witnesses or so, and avoids the spectre of a retrial if the District Court judge in addressing these very difficult issues does not determine them in a way that this Court later finds to be correct.

FRENCH CJ:   But when you say there is no factual dispute, what does that encompass?

MR REYNOLDS:   As my learned friend, Mr Bennett, said we are really only dealing, for the purpose of constitutional validity here, with the

publications in respect of which we are charged.  There would have to be a characterisation by this Court if there was an order for removal as to whether they are political within the principles of the implied freedom.  Other than that that is probably the only factual matter, we submit ‑ ‑ ‑

FRENCH CJ:   But it would not just be the content of the letters would it, it would be the circumstances if there is a factual context in which they are embedded, is there not?

MR REYNOLDS:   I do not think that it would lead to any dispute, your Honour, and if necessary we would confine our argument to the publications ex facie.  If your Honours please, those are my submissions.

FRENCH CJ:   Thank you, Mr Reynolds.  Yes, Mr Agius.

MR AGIUS:   Your Honours, it is our submission that this Court ought only consider removal if it could conclude that the issues raised are important and that they require this Court’s urgent decision.  That would be in keeping with this Court’s decision in Bienstein 195 ALR 225 at paragraph [45], which was followed by this Court in Henke [2008] HCATrans 116 and Bergman [2008] HCASL 493.

In our respectful submission, there is nothing pressingly urgent about this matter.  The trial is listed to commence on Monday, but that is not the urgency that is required in this case.  That urgency is in large measure brought about by the dilatory conduct of the applicant, Monis, because this is the second time he has approached this trial and, in our respectful submission, that does not make the matter urgent.

This is a section which is not one in common use and it seems that there are no people crying out to write to the families of deceased soldiers to tell them that their deceased soldier son is worse than a pig. This is a section which is not part of the usual machinery of government. It is not a section that comes up for prosecution. Indeed, we could find no reported decisions in relation to it. So there is no urgency in that sense. It does not involve the interpretation of the Constitution. It does not involve the interpretation of a provision which deals with the power of the courts. So, in our respectful submission, it fails the important and urgent test.

Next, in our submission, it is not important that this Court deal with it, not that the issues are not important, but the tests are settled.  They were settled in Lange and they have now well and truly settled after Coleman and Hinch which is unreported at [2011] HCA 4 on 10 March. That the tests are settled is plain from the judgment of your Honour the Chief Justice at paragraph 47 and at 94 and 97 of the joint reasons.

So the removal would not entail any refashioning of the test.  The removal would also deprive this Court of the opportunity of having an opinion of an intermediate primary judge or an intermediate appellate court.  Each of those courts have jurisdiction to deal with the interpretation and construction of a Commonwealth criminal provision such as this.  Removal would also lead to the fragmentation of criminal proceedings. 

My learned friend, Mr Bennett, speaks of 90 witnesses and presumes as to why it is that there would be 90 witnesses and what evidence they would give.  At the moment, although we have admissions from the applicant, Monis, that he sent the letters we have no admissions from the applicant, Droudis.  So we would need to prove factual sending of the letters by Mr Monis as part of the case.  That involves a great deal of evidence about continuity of the handling of the letters and a great deal of technical evidence to prove postage.  In those circumstances that has blown out the witnesses.  One would have thought that many of those witnesses would not be required at a trial, but that is our worst case scenario.

We do propose to call the parents or the recipients of the letters because, in our respectful submission, their evidence adds meaning to the charge when one needs to consider the circumstances and those circumstances are personal to the recipients of the letters.  The circumstances deal with the nature of the reputation of the deceased soldier, deal with what the parents knew and what might have been reasonably expected that they would know of the conduct of the deceased soldier.

So if, for example, a deceased soldier is called a murderer, as some of them are, it would be important for the prosecution to prove that, in fact, on this particular day far from being a murderer they were actually disarming a bomb so that other peoples would not be hurt.

FRENCH CJ:   I think you have taken us a little way from the focus of the removal application here.

MR AGIUS:   If the matter is removed now the Court will not have any of those facts and those facts are important when one is considering the validity of a section that permits an examination of all of the circumstances.  That is the kind of circumstance that, in our respectful submission, the Court would have, were it to grant special leave after conviction in these circumstances, but does not have and would deprive itself of having in circumstances where it simply removed the matter. 

The fact that the matter was not right for removal is also reflected in the applications to the extent to which they refer to the content of the letters.  Either this section is valid on its face or it is not.  If my friends want to introduce the letters themselves as part of the invalidity argument then, in our respectful submission, it would be an unbalanced argument if the Court could not itself determine, by reference to all of the circumstances, the extent to which there was an impingement upon the implied freedom, or whether or not the section itself was appropriate and adapted.

FRENCH CJ:   There would be a primary question of construction and then the question arising out of that whether the section, properly construed, applied to these letters.

MR AGIUS:   Well, that would mean that the Court would construe the section without reference to the letters and I cannot find any decision where the Court has dealt with such an issue in a vacuum.  There was no vacuum in Hinch or Coleman or in any of the other decisions.  Also, in our respectful submission, the application itself is doomed because the applicants present a weak case.  It is weak because the way in which these letters are said to be offensive relates very much to the nature of the recipient and the nature of the reputation of the person about whom the letters are.

There are copies of these letters that were sent to politicians and posted on a website and, in our respectful submission, none of that is the subject of the prosecution.  This prosecution focuses on the very personal nature of some of the allegations and statements made in the letters and it takes this case outside of the situation in Coleman. 

There is also the issue as to whether or not the section impinges on the freedom and then whether or not it is reasonably appropriate or fairly adapted.  We would not concede, in this case, that the section fails the first Lange test and that would be a matter that is better decided, in our respectful submission, in circumstances where all of the facts have been teased out. 

There is nothing special about having a District Court judge or an intermediate appellate court, if there is an interlocutory appeal, as one would expect there would be, were the applicants unhappy with the decision of the District Court judge, in having a court at either of those levels interpret or construct a section such as this.  That is within their jurisdiction and to remove the matter now paints this Court more in the position of a general judicial ombudsman than it does assist the administration of justice, in our respectful submission. 

The reality is that if a District Court judge next week were to uphold the validity of the section there would be an immediate section 5F appeal to the Court of Criminal Appeal.  We are still weeks away from any directions to juries as to the nature of the charge.  In any event, it is our submission, that there is no need for the jury to be instructed on matters of constitutional

law or the implied freedom in dealing with this matter.  It is our submission that the section is valid and if valid, as it would have been the case in Coleman, there would be no need to give the jury directions about whether or not it was appropriate or reasonably adapted.  They are questions of law to be dealt with on the issue of the validity of the charge and they are not relevant on the question of guilt or innocence.  For those reasons, your Honour, our submission is that these are not appropriate matters for removal at this time.

FRENCH CJ:   Thank you, Mr Agius.  Mr Bennett, anything in reply?

MR BENNETT:   Your Honour, the detailed matters of fact to which my learned friend refers are not going to be of any relevance to this Court in determining either the facial validity of the section, or the extent to which it needs to be read down.  In any event, most of them are matters of degree which go to guilt or innocence once one determines what the section means. 

There is clearly no dispute on behalf of the first applicant that letters were sent and what the letters said.  There are contested issues about the extent to which my client aided and abetted with knowledge, but those matters are not going to assist in relation to the constitutional issues.  Your Honours will not be inhibited in any way by the fact that those matters have not been determined.

Your Honours, so far as the urgency of the matter is concerned this is a general provision which, we would submit, has an enormous effect if valid to the full extent on the dissemination and publication of political material.  It prohibits dissemination by post of material that reasonable persons would consider to be offensive, to paraphrase it.  That, in my respectful submission, is something of importance that such a law exists in the community.  There is doubt because of (a) the divided decision of this Court in Coleman v Power and, (b) the distinction between that section and this section.

We would submit that this is an appropriate case for those issues – the issue of constitutionality and the issue of reading down – to be determined first.  We have set out at page 263 of the application book the exact form of removal that we seek.  Clearly we do not seek removal of the whole matter.  We have defined the questions at page 263.  If the Court pleases.

FRENCH CJ:   Thank you.  Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, I have nothing to add to what Mr Bennett has said in reply.

FRENCH CJ:   Thank you. 

These applications for removal under section 40(1) of the Judiciary Act 1903 (Cth) concern the constitutional validity of section 471.12 of the Criminal Code (Cth). The applicant, Monis, was charged with 13 offences under this provision and the applicant, Droudis, was charged with aiding and abetting Monis’s commission of eight of these offences. Both were indicted in the District Court of New South Wales and their joint trial is set down for 11 April 2011.

On 15 November 2010, Monis filed civil proceedings in the Supreme Court seeking a declaration that section 471.12 was invalid. He now seeks to remove the whole of that cause pending in the Supreme Court and Droudis seeks to remove the whole of the cause against her pending in the District Court so that this Court may determine whether section 471.12 contravenes the implied freedom of political communication under the Constitution.

Orders for removal under section 40(1) interrupt the processes of the lower courts and deny this Court the benefit of the reasons of the lower courts on constitutional issues. They also allow the parties to bypass the special leave and leave requirements of the Judiciary Act.  Accordingly, a removal order is only appropriate if an application raises constitutional issues ripe for consideration which require this Court’s urgent decision:  see Bienstein v Bienstein (2003) 195 ALR 225 at 234, paragraph [45]. In our opinion, these applications reveal no urgent issue to be resolved which justifies removal to this Court. The applications will be refused.

MR BENNETT:   If the Court pleases.

MR AGIUS:   May it please the Court.

FRENCH CJ:   We will now adjourn briefly to reconstitute.

AT 11.52 AM THE MATTERS WERE CONCLUDED