Nagi v The Queen

[2010] HCATrans 146

[2010] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S218 of 2009

B e t w e e n -

HASSAN NAGI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO CANBERRA

ON FRIDAY, 28 MAY 2010, AT 2.47 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P. KULEVSKI, for the applicant.  (instructed by VA Lawyers Pty Limited)

MS D.W.L. WOODBURNE, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J:   Mr Walker, it occurs to me, and you may perhaps have other views about it, that a way of dealing with this matter may include referring to the subject matter in question simply as “the disputed subject matter”.

MR WALKER:   Thank you, your Honour.  That is what I will do.  Your Honours, the question in this case involved, above all, the exercise of a statutory discretion granted by section 126E of the Evidence Act.  That means that in order to get special leave we need to point to something not merely suggesting a failure on the part of the Court of Criminal Appeal to detect a House v The King error by the first instance judge, but also, ourselves to point to some prospect of a House v The King error were special leave to be granted.  We accept that that is what we face.

We identify as the feature which led to error at first instance and thus erroneously not corrected on appeal, the failure to take into account what might be called the disincentive effect of the disputed subject not being disclosed in a manner that would be undesirable, certainly from the point of view of victims.  The matter arises in the statutory setting, we submit ‑ ‑ ‑

HAYNE J:   Does that presuppose that victims would not otherwise have encountered and dealt with the problem that would otherwise be presented by the disputed subject?

MR WALKER:   No, it does not.  That will depend ‑ ‑ ‑

HAYNE J:   Because I would have thought that that was an infirm premise.

MR WALKER:   Yes.  That will depend upon the circumstances of a case, obviously.  In this case there is, we submit, every reason to suppose that when counsel was instructed to disclose the disputed subject matter, it was well understood – one can gauge that from the nature of the application thereafter for non‑disclosure and hearing in camera – that the disclosure more broadly than to or for the victims would visit upon my client’s family the distress and burden which appears to have been accepted, in the absence of evidence, it is clear, which seems nonetheless to have been accepted at first instance - see application book page 62, paragraphs 20 and 21.

In our submission the evident beneficial purpose of section 126E requires as, with respect, correctly undertaken by Justice Basten at page 92, paragraph 42, a relatively broad reading of the critical concepts including harm so as to include what might be called vicariously harm suffered by the family of the prisoner by reason of disclosure of the disputed subject matter.  That would, in our submission, as eventually in our favour, I have to accept, held by the Court of Criminal Appeal, provide the power, the power being available – the discretion whether to exercise it is why the matter must fall for analysis under House v The King.

BELL J:   Did the judge make a direction that the law of evidence was to apply to the sentencing proceeding?

MR WALKER:   No, your Honour, or at least there is no such record, no, and in our submission section 126E does not cease to be available, however, whether or not there was such a direction.  It is a beneficial power which is provided in relation to hearing what is called evidence in camera or suppressing the publication of what is called evidence in such a way as one would expect that to apply whether or not the rules of evidence apply or not.

BELL J:   His Honour approached the matter upon the basis that he had the requisite power in any event.

MR WALKER:   That is why I accept that I immediately am confronted with the fact that this is a House v The King error, if there be any error at all.  Yes, your Honour, I accept that.  This is not a jurisdictional point, I accept that.  It is said against us that his Honour’s consideration of the Kwok Case 64 NSWLR 335, which commences at page 63 of the application book, suffices to show that what was called a disincentive argument in that case – see the list of points in Justice Hodgson’s conclusions paraphrased at page 63, paragraph 25, item 3 ‑ our premise necessary for House v The King cannot be made out. 

It shows, it is said against us, by dint of that consideration of Kwok, that there was a disincentive argument, or the disincentive argument considered, and I do accept that if that be so then the essential premise for making good our House v The King argument would be lacking.  However, in our submission, what sees on page 64 of the application book at paragraph 26, and then in particular, what can be seen in the Court of Criminal Appeal page 96, paragraphs 53 and 54, particularly paragraph 53, shows that a quite different disincentive is being talked of.

Kwok, of course, concerns a disincentive imposed - or thought to be created, I should say, on victims, true victims of an offence coming forward if their identity as persons who have been placed in sexual servitude were to be disclosed in the course of prosecuting the offender who has committed

that crime with respect to them.  There is no analogy to any degree between that kind of disincentive thought to be created upon victims to report crime and the kind of disincentive about which the argument was had below in this case.

Ours is startlingly different.  The merits, it may be said, are obviously different but that, in our submission, does not deprive the point of one of significance requiring it to have been considered for the purpose of taking into account relevant considerations in the case.  The disincentive, your Honours appreciate, is that if a status which has nothing to do with the committing of the offence – there is no suggestion that there was simultaneous knowledge or contemporaneous knowledge so as to render the disease status as something which is relevant to the commission of the offence, either as an element or as an aggravation - the disclosure of it subsequent to discovery – it being subsequent to the commission of the offences – is something which is obviously in the public interest, not least in the victims’ interests in a case such as the present, and that anything that would discourage that would place, in our submission, not only for the purposes of the administration of justice in relation to understanding exactly the nature of the victims’ plight for victim impact statements, but also the broader public interest with respect to the welfare of those victims.

Now, it is appreciated the difficulty with which arguments – high‑minded as I hope they appear – of that kind come from a party in my client’s position but, with respect, under section 126E a discretion in relation to very important aspects of the administration of justice and a discretion committed to a judicial officer, those are, in our submission, relevant factors which we were entitled to have taken into account in the difficult application that was being made.

It is for those reasons, in our submission, that upon a proper reading of the reasons at first instance in the Court of Criminal Appeal, it simply cannot be seen that the relevant disincentive matter has been taken into account and for those reasons the exercise of the discretion may have miscarried.  I say “may have miscarried” because it is not possible, I accept, to say of that consideration in such an extreme and peculiar position as presented during this application, I cannot say that an outcome one way or the other is compelled.  However, in our submission, it was a weighty consideration and, as such, one which, by its omission, indicates the need for this Court to intervene by a grant of special leave.  May it please the Court.

HAYNE J:   Yes, thank you, Mr Walker.  We will not trouble you, Ms Woodburne.

We are not persuaded that the decision of the Court of Criminal Appeal in this matter is attended by doubt.  Special leave to appeal is refused.

In light of that conclusion, is there any consequential order that the Court needs to make to dispose of any extant order, or are the extant orders timed within their own terms to come to an end upon resolution of the application for leave, Ms Woodburne.

MS WOODBURNE:   Your Honours, the order of the Court of Criminal Appeal does appear to be so timed.  The question is whether the order made by his Honour Justice Gummow in this Court will cease to act upon what is now the disposition of this appeal.

HAYNE J:   That is the order at application book 110, is that right?

MS WOODBURNE:   It is, your Honour.

HAYNE J:   If we were to make a further order that the order made by Justice Gummow on 1 December 2009 is discharged, would that accommodate the matter?

MS WOODBURNE:   Yes, for our purposes, your Honour.

HAYNE J:   Mr Walker, would you wish to be heard in relation to these questions or that particular question?

MR WALKER:   There is nothing I can say, your Honour.

HAYNE J:   Yes, very well.

Special leave is refused.  The order made by Justice Gummow on 1 December 2009 is discharged.

The Court will adjourn to 2.15 pm on Tuesday, 15 June 2010 in Canberra.

AT 3.01 PM THE MATTER WAS CONCLUDED