Nemer v Holloway

[2003] HCATrans 520

[2003] HCATrans 520

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A268 of 2003

B e t w e e n -

PAUL HABIB NEMER

Applicant

and

PAUL HOLLOWAY

First Respondent

MICHAEL JOHN ATKINSON

Second Respondent

PAUL ROFE

Third Respondent

Office of the Registry
  Adelaide  No A272 of 2003

B e t w e e n -

PAUL HABIB NEMER

Applicant

and

THE QUEEN

Respondent

Applications for expedition

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 10 DECEMBER 2003, AT 4.33 PM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   May it please your Honour, I appear with my learned friend, MR J.D. EDWARDSON, for the applicant.  (instructed by Cowell Clarke) 

MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia:   If your Honour pleases, I appear with my learned friend, MR R.D. DE PALMA, for the respondents in all matters, except for the Director.  (instructed by Crown Solicitor for the State of South Australia) 

HIS HONOUR:   Before we begin, I should apologise for the late start.  We were held up in the Full Court.  Mr Walker, just on the formal front, you move on two summonses dated 2 December 2003 ‑ ‑ ‑

MR WALKER:   I do, your Honour. 

HIS HONOUR:   ‑ ‑ ‑ seeking expeditions of A268 and A272 of 2003. 

MR WALKER:   I do, your Honour. 

HIS HONOUR:   And you rely on the affidavit of the applicant which was sworn on 30 November 2003 and filed on 2 December. 

MR WALKER:   I do, your Honour. 

HIS HONOUR:   Mr Solicitor, do you object to any part of that affidavit? 

MR KOURAKIS:   No, if your Honour pleases. 

HIS HONOUR:   Mr Solicitor, do you oppose the applications? 

MR KOURAKIS:   No, if your Honour pleases.  In my submission, it is a matter for the Court knowing its list and the other matters that have to be balanced.  Other than pointing to the fact that there is a balancing exercise that is involved, there is no other submission. 

HIS HONOUR:   Do you have any specific submissions about the balance, or do you merely wish to leave it to Mr Walker? 

MR KOURAKIS:   The balancing exercise does your Honour mean? 

HIS HONOUR:   Yes.  What, in particular, favours expedition, as you see it? 

MR KOURAKIS:   Sorry, on the balance in this particular case? 

HIS HONOUR:   Yes. 

MR KOURAKIS:   No, I do not have any submission and I will leave it to Mr Walker, if your Honour pleases. 

HIS HONOUR:   Can I just ask you one question.  If the applicant served 21 months’ imprisonment, is it reasonable to assume that he would have good chances of immediate release?  I am just unfamiliar with the South Australian practice.  The applicant is young ‑ ‑ ‑

MR KOURAKIS:   On parole? 

HIS HONOUR:   Yes, on parole.  There might be conditions attached, but he would achieve substantial liberty after 21 months, given his ‑ ‑ ‑

MR KOURAKIS:   In fact, it would be automatic and no discretion.  The Parole Board would not have a discretion to keep him in custody, not to release him on parole, after the expiration of the non‑parole period. 

HIS HONOUR:   Even if he – and I put this only purely hypothetically, of course – let me put it more generally.  If a person is sentenced to a term of imprisonment coupled with a non‑parole period but behaves badly in gaol, does the Parole Board have a discretion then? 

MR KOURAKIS:   Not for sentences of this duration.  It would have for sentences of a longer duration. 

HIS HONOUR:   I see, thank you.  Mr Walker, the problem is one of priority.  If this application succeeds, someone else loses their priority.  I suppose these factors are relevant.  One is that the appeal process might be wholly futile and would be, certainly, in part futile if there were no expedition.  Another is that Chief Justice Doyle dissented in the two operative decisions and I suppose a third ‑ ‑ ‑

MR WALKER:   Could I add two others that really reflect both of those in a slightly different way?

HIS HONOUR:   Yes.

MR WALKER:   The first is that the appeal should not have happened, if we are right on one point, and the second is that the appeal should not have been allowed, probably at the leave stage, if we are correct.  Those are both as to the first quasi‑jurisdictional question and, as to the second, certainly a threshold matter.  In criminal justice, in particular, matters of that kind correctly assume a great importance in terms of the integrity and propriety of the process.

When somebody is imprisoned pursuant to a process which is later ‑ perhaps towards the very end, or even after the expiry of a non‑parole period for imprisonment – exposed as having been a process which should never have started, or which should never have been permitted to go on ‑ which is our case – then, in our submission, that is a sad day.  Though that really is only a different way of putting, I think, the two points that your Honour raised with me, it puts it from the applicant’s point of view as it why this should support expedition. 

HIS HONOUR:   Yes, thank you.  Is there anything further you wish to put? 

MR WALKER:   Your Honour has seen – in particular, in the affidavit, may I draw to attention ‑ ‑ ‑

HIS HONOUR:   Yes, I have that. 

MR WALKER:   May I particularly draw to attention paragraph 8, last sentence.  I do not mean to distract attention from the rest of paragraph 8, far from it, but ‑ ‑ ‑

HIS HONOUR:   I think you mean the second‑last sentence? 

MR WALKER:   No, the last sentence.  Not the second‑last sentence, the last sentence.  I do not mean the rest is not important, but the last sentence and then but ‑ ‑ ‑

HIS HONOUR:   And there are various other paragraphs. 

MR WALKER:   Quite.  Then paragraph 12.  In particular, the matters that there are raised pick up in a way which your Honour might not be surprised to know comes somewhat as a surprise to defence lawyers, namely, if I may say this with great respect, that a matter raised in authorities on bail pending special leave or bail pending appeal are actually reflected in the subjective position of my client.  He does not wish to have bail pending an appeal which may seem him recommitted to prison, and that has been, as your Honour knows, a theme in bail decisions in this Court, most recently by your brother Callinan in Hanson and Ettridge. 

In our submission, that is extremely powerful and telling material which, combined with – I have to say it – the relatively short length of his non‑parole period and what the Solicitor‑General has pointed out about that, combines to make this an appropriate case, notwithstanding what we are very conscious of, namely, that every expedition involves some displacement. 

HIS HONOUR:   Yes, thank you. 

The background of the present application for expedition of two applications for special leave to appeal, at least up to 13 November 2003, is stated in a judgment I delivered on that day giving the reasons for refusing an application by the applicant seeking a stay of further proceedings in the Supreme Court of South Australia until the determination of the first of those special leave applications, which is No A268 of 2003. 

The relevant subsequent events are as follows.  On 18 November 2003, a majority of the Court of Criminal Appeal, Justices Prior and Vanstone, sentenced the applicant to four years and nine months’ imprisonment, with a non‑parole period of one year and nine months.  On the same day, that court refused bail, pending the hearing of any special leave application to this Court. 

On 1 December 2003, the applicant filed an application, No A272 of 2003, for special leave to appeal from the majority judgment of the Court of Criminal Appeal delivered on 7 November 2003 and from the sentence imposed on 18 November 2003.  On 2 December, the applicant filed summonses seeking expedition of the hearing of both special leave applications. 

In short, therefore, there are two special leave applications which have been filed, A268 and A272 of 2003.  They attack the orders flowing from three distinct judgments.  It is not necessary to say much at this stage about the merits of the application beyond the following.  It is to be noted that in relation to the first two of the judgments which are challenged, Chief Justice Doyle dissented, giving detailed reasons.  In the third, he dissented without reasons, but his dissent was, in a sense, consequential on the reasoning he had expressed in the first two judgments.  Secondly, certain of the contentions advanced by the applicant are neither unarguable nor lacking in public importance. 

The essential grounds for expedition which the applicant advances in his affidavit of 30 November 2003 are put thus.  He has found the process of being inducted into gaol distressing and one which caused him to fear for his safety at the hands of other prisoners.  While he feels more secure about his safety in F Division of the prison in which he is imprisoned than he did in the first week, which he spent in E Division, he does not want to run the risk of seeking bail pending appeal and, if the appeal process fails, being restored to E Division.  He does not want any unnecessary repetition of the publicity which has attended his case so far. 

If he remains in gaol until the appeal process concludes, he may have served “much of the sentence that has been imposed”, even if he is successful in obtaining special leave and winning the appeals.  He said that, in his understanding, the special leave application “is unlikely to be heard for many months”.  While noting, in passing, how lamentable it is that the applicant, like many other prisoners, appears to fear more the harm that may be inflicted on him by other prisoners than he does the punishment constituted by loss of liberty itself, it must be said that, from the applicant’s personal point of view, his desire for expedition is obviously understandable. 

The Solicitor‑General explained that, given the length of the applicant’s sentence, the South Australian Parole Board will have no discretion not to permit his release when the non‑parole period of 21 months ends.  It is necessary to face the regrettable possibility, however, that the whole of the period will be served by the time the Court, acting at the ordinary pace at which it can conduct its affairs, in light of the pressure of all the other cases in the Court, will have heard the special leave application, will have heard the appeal there from and will have delivered a reserved judgment.  The only stage of that process over which the Court has entire control, without displacing other cases by making expedition orders, is the last stage, and even that involves some delay being caused to other cases awaiting the finalisation of judgments. 

In a nutshell, the applicant correctly contends that without some measure of expedition the entire appellate process will be wholly or at least very substantially futile.  Neither of the respondents to the applications opposes the grant of expedition. 

In an ideal world, all appeals would be heard very soon after the completion of the relevant trial.  In particular, all criminal appeals would be heard very soon after the imposition of sentence.  In an ideal world, accused persons complaining of the orders of intermediate courts of appeal would have applications for special leave to appeal and then the appeals themselves heard very quickly, so that if it turned out that they had been erroneously sentenced to imprisonment, as little as possible of the term of imprisonment which should not have been imposed is served. 

The world of criminal litigation is far from ideal, however.  In particular, it is far from ideal in this Court, because it is very difficult for this Court, given the demands on its time, to grant expedition of the order just described.  It is almost always the case that applicants for special leave have filed the applications and that the applications are ready for hearing long before this Court is in a position to hear them, unless the applications are expedited. 

One key issue is whether it is right, by granting the present applicant expedition, to displace some other member of the large class of applicants who are waiting to have their applications heard.  To displace one of these applicants and thereby delay the possibility of an injustice being remedied can be a serious thing, whether the other applicants are applicants in civil cases or, as many of them are, persons serving sentences of imprisonment or persons who are detained pending deportation in the event of their litigation failing. 

There are, at first sight, certain factors which favour the application.  One is the futility, to which the applicant’s affidavit draws attention, if expedition is not granted.  Another is the support for his position to be found in the dissenting opinions of Chief Justice Doyle below.  Another is the unusual nature of the circumstances of the case.  The underlying factual circumstances are in themselves rather unusual. 

It is unusual for decisions of persons holding the independent office of Director of Public Prosecutions to have their decisions about whether to appeal or not overturned by other members of the Executive.  It is not certain that that outcome is permitted by the relevant South Australian legislation, as the division in the Full Court below shows.  It is unusual for parties in litigation to be permitted to adopt new points on appeal and particularly unusual for the Crown to adopt a different posture in the course of the criminal appeal from that which it adopted at first instance, as, in some respects, happened here. 

Counsel for the applicant encapsulated the applicant’s position as follows.  He submitted that if the applicant’s contentions were correct, the appeal should not have happened and if, in another aspect, they were correct, at least leave to appeal should have been refused or, if leave were granted, the appeal should not have been allowed.  Counsel drew attention to the fact that the first of these considerations goes to jurisdiction and the second, if not, strictly speaking, going to jurisdiction, is a matter going to the threshold of whether the appellate stage of the criminal process in this case should have been embarked upon. 

Counsel for the applicant drew attention to the fact that the integrity and propriety of the criminal process generally depends on it being clear that the exercise of jurisdiction was valid and that the embarkation on the process of the criminal appeal was sound in law.  These are issues that are absent from most of the criminal appeals and, for that matter, other appeals and their attendant special leave applications awaiting hearing in this Court. 

In the rather unusual circumstances of this case, therefore, in my opinion, it is appropriate to order expedition.  I would make the following orders: 

1.   That the hearing of applications for special leave to appeal Nos A268 and A272 be expedited;

2.   It is certified that this application was a proper matter for the attendance of counsel in chambers. 

Mr Walker, there is some possibility that these two applications could be fitted into the lists of applications to be heard on 14 February, which is, as you appreciate, the first ordinary day ahead of us.  I appreciate that you have done everything that the Rules call for you to have done, I think, up to this point.  

MR WALKER:   We have filed our summaries of argument, I think your Honour is saying. 

HIS HONOUR:   In both matters, yes, they both have been filed.  As far as I can see, all the documents which the Rules require to be available are available, so it would be a question of moving to the obligations on the respondents.  Can I just read out some proposed directions, and I should say ‑ ‑ ‑

MR WALKER:   They involve the case, but these cases are being heard together, obviously. 

HIS HONOUR:   Yes.  I do not think it is necessary to make a specific order or direction about that.  The goal is this – it is probably rather harder on the respondents than it is on the applicant – to endeavour to get everything ready by Christmas, so that the process of having a joint application book prepared can proceed in the hands of your client’s solicitors in January.  Let me just read out the draft and I will invite comment on it. 

MR WALKER:   May it please your Honour. 

HIS HONOUR:  

1.   That the respondents file and serve their summaries of argument on or before 15 December 2003;

2.   That the applicant file and serve any reply on which he may wish to rely on or before 20 December 2003;

3.   That the applicant file and serve a draft index to a joint application book on or before 15 December 2003;

4.   That the applicant prepare, file and serve copies of the joint application book on or before 21 January 2004;

5.   Liberty to apply to the Registrar on three days’ notice. 

I should stress that it is important that both the applicant and the respondents do everything they can to proceed with expedition.  It is also important that between the time under that framework, when the applicant files and serves a draft index, the parties communicate with each other and the Registrar to ensure that that index is settled speedily, so that the joint application book can be prepared before 21 January next year. 

It needs also to be understood that if there is any slippage in those directions or any failure to ensure that the papers are prepared well before the Court conducts the hearing on 14 February, that the matter will not proceed on that day and there can be no guarantee when it will proceed. 

Mr Solicitor, the first of those directions is, in a sense, rather onerous on you.  Are you able to comply with that, to have your summaries ready by 15 December? 

MR KOURAKIS:   Your Honour, I would prefer to have towards the end of that week.  Clearly, it is possible to get some in, but they would be better for the extra time.  Just looking at the timetable generally, in my submission, there is probably more time than is necessary in January for getting the books in, so that the time could be changed a bit the other way around.  It would allow us, effectively, I think, six days for our submissions, rather than the ordinary 21, whereas the time for reply, I think, is still the standard seven days. 

HIS HONOUR:   No, the time for reply was five. 

MR WALKER:   Your Honour, may I volunteer that we will be content to shorten the interval between receiving my friend’s submissions and us replying, if that would assist him at this time of the year, that is, remaining our reply of the 20^th.  If it is possible for your Honour to extend the time for my friend, we would be happy to do so. 

HIS HONOUR:   Yes.  I am not unsympathetic to what the Solicitor said.  What about Thursday, 18 December, Mr Solicitor, instead of the 15^th? 

MR KOURAKIS:   If your Honour pleases. 

HIS HONOUR:   I think I said 20 December for you.  That is a Saturday.

MR WALKER:   Would the 22^nd be in order? 

HIS HONOUR:   Perhaps the 22^nd.

MR WALKER:   May it please your Honour. 

HIS HONOUR:   Let me just correct something I said, I think, more than once.  The special leave day that I was talking about which I said to be 14 February will, in fact, be 13 February.  Apart from that, Mr Solicitor, are those directions satisfactory? 

MR KOURAKIS:   Yes, your Honour. 

HIS HONOUR:   Mr Walker, are they satisfactory? 

MR WALKER:   Yes, may it please your Honour. 

HIS HONOUR:   Has anyone any other suggestion for any further direction? 

MR WALKER:   No, your Honour. 

MR KOURAKIS:   No, your Honour. 

HIS HONOUR:   I will make the directions I read out.  I will read them out again.  The Court directs: 

1.   That the respondents file and serve their summaries of argument on or before 18 December 2003;

2.   That the applicant is to file and serve any reply on which he may wish to rely on or before 22 December 2003;

3.   That the applicant file and serve a draft index to a joint application book on or before 15 December 2003;

4.   That the applicant prepare, file and serve copies of the joint application book on or before 21 January 2003;

5.   Liberty to apply to the Registrar on three days’ notice. 

The Court will adjourn. 

AT 4.58 PM THE MATTERS WERE CONCLUDED