Nguyen, Ex parte- Re East

[1998] HCATrans 84

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M53 of 1997

In the matter of -

An application for declarations and

writs of Certiorari and Habeas Corpus
  against ROSEMARY EAST

First Respondent

MAGISTRATES' COURT OF
  VICTORIA AT SUNSHINE

Second Respondent

COUNTY COURT OF VICTORIA
  AT MELBOURNE

Third Respondent

GOVERNOR OF FULHAM PRISON

Fourth Respondent

Ex parte -

QUOC PHU NGUYEN

Prosecutor/Applicant

HAYNE J   (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 26 MARCH 1998, AT 9.30 AM

(Continued from 9/2/98)

Copyright in the High Court of Australia

______________________

MR D.A. PERKINS:   If your Honour pleases, I appear for the prosecutor. (instructed by Kuek and Associates)

MR J.D. McARDLE:   If your Honour pleases, I appear with MR T.P. BURKE for the first respondent.  (instructed by the Office of Public Prosecutions (Victoria))

MR E. WILLHEIM:   If your Honour pleases, I appear for the Attorney‑General of the Commonwealth intervening.  (instructed by the Australian Government Solicitor)

MR J.P. RUDDLE:   If your Honour pleases, I appear on behalf of the Attorney-General for the State of Victoria.  (instructed by the Victorian Government Solicitor)

HIS HONOUR:   Now, what is the position in the matter, Mr Perkins?

MR PERKINS:   If your Honour pleases, the matter did go before the Court of Appeal, as was foreshadowed by Mr Francis previously.  The applicant was unsuccessful in the Court of Appeal and hence the applicant wishes to proceed in this court.

HIS HONOUR:   What steps do you then say should now be taken?

MR PERKINS:   Your Honour foreshadowed some steps and they are set out I think on the fourth page of the transcript of the previous day.  It is accepted that those steps

should be taken and should be taken by us.  In terms of the identification of issues and the time we are allowed for that, I can only say we would want at least 14 days.

HIS HONOUR:   Have you devised a timetable of steps which you say should be taken?

MR PERKINS:   No, your Honour. 

HIS HONOUR:   Why not?  It is your application, Mr Perkins.

MR PERKINS:   Yes, sir.

HIS HONOUR:   I made quite plain last time what steps I thought should be taken.  If you say those are the steps that should be taken, perhaps you might assist me by letting me have an indication of what steps you say should be taken and when?

MR PERKINS:   Yes, your Honour.

HIS HONOUR:   Mr Perkins, it is now 25 to 10.  Some counsel at least, I am told, have other engagements at 10.30.  Whether or not that is so, I have other matters that I need to deal with.  You may have until quarter to 10.  By quarter to 10, I would expect you to have formulated precisely what it is you say should be done and to inform other counsel engaged in the case of what those proposals are.

MR PERKINS:   I appreciate that, your Honour. 

HIS HONOUR:   I will adjourn until quarter to 10.

ADJOURNED  [9.35 am]

RESUMED             [9.48 am]

HIS HONOUR:   Now, Mr Perkins.

MR PERKINS:   Your Honour, what I seek is a direction that the prosecutor within 21 days file and serve submissions identifying the basis of the claim and the basis of jurisdiction, such submissions to include references to authorities.  Secondly, your Honour, that the respondents and interveners file and serve any answering submissions within a further 21 days after the time allowed for service of the prosecutor's submissions.

The only other order of substance, your Honour, was an order either adjourning this directions hearing - and I would contend that that is appropriate - adjourning it to a period shortly after the delivery of the respondents' and interveners' submissions.  There has been some discussion about liberty to apply.  I would ask your Honour to adjourn it, that is adjourn this directions hearing, as the prosecutor's preference.  It would be the prosecutor's desire on the adjourned directions date to seek a date for hearing.

The only other matter, your Honour, would be simply the reservation of costs.  I would ask that your Honour reserve costs.  But those orders are the orders that I would seek.  Omitted from the scope of any of that, your Honour, is any further factual material.  It is not considered I think by any of the parties or interveners that at the present time that is a matter that should be further gone into.

HIS HONOUR:   What do you mean by that?  There will be no further factual material filed or that there may be?

MR PERKINS:   At the present time it is not the prosecutor's intention to seek to file any further factual material.  I am not sure, when your Honour used the expression "the industrial realities" and I think that was juxtaposed with the reference to the real merits - it was used on the previous directions hearing - whether that may have included some consideration to the factors which attend the provision of interpreters, as distinct from factors which may be peculiar to this particular prosecutor.  But having said that, your Honour, it is not the prosecutor's intention at this time to place further affidavit material before the court.

HIS HONOUR:   Yes.

MR PERKINS:   I can indicate, if it was your Honour's intention that those sorts of matters be taken up, the prosecutor would seek to do so.  If your Honour pleases. 

HIS HONOUR:   As to the question of directions hearing being adjourned or liberty to apply and as to the question of seeking a date for hearing, it would not be I think within my power to give a date for hearing.  Whether at any adjourned directions hearing or pursuant to liberty to apply, those are matters that would be resolved otherwise within the court.  As for adjourning the directions hearing or giving liberty to apply, in effect whatever I do may not much matter.  It will always be open to the parties to bring the matter back on for further directions before a single justice.  However, those are matters that we can perhaps deal with.  They are perhaps not matters of the first importance.

MR PERKINS:   If your Honour pleases. 

HIS HONOUR:   Now, Mr McArdle, you are for the first respondent.  What do you say about the proposed directions?

MR McARDLE:   We say that they are adequate for the initial question of jurisdiction.  I fear though that at some stage or another there is going to have to be some fact-finding done.  But as things presently stand, we agree with this proposal to work out the jurisdiction.

HIS HONOUR:   What do you see as the possible area for fact-finding?

MR McARDLE:   In essence, his ability to speak English at the relevant time.

HIS HONOUR:   My memory of the matter is necessarily now imperfect.  I have not gone back to review the affidavits last night or this morning.  My recollection, which is very much subject to correction, is that there may have been lurking there an issue of whether, at some point in one or other of the proceedings before the County Court, counsel may have informed the court that in the opinion of counsel then appearing the prosecutor was not in need of an interpreter in connection with the proceedings.

MR McARDLE:   Yes.

HIS HONOUR:   Now, as I say, there are many caveats about that proposition that I advance and I am not to be taken as expressing any final view.

MR McARDLE:   Your Honour, I have not reviewed the affidavits myself recently but I am very firmly of the view that in at least one of the proceedings - I suspect not the breach proceedings but the original plea etcetera - the issue was squarely raised by the Chief Judge of the County Court, to my learned friend's predecessor, entitled, "Does your client require an interpreter?"  The answer was no.  The Chief Judge said something to the effect, "Well, we will see how we go," and the matter was never ever raised again.

HIS HONOUR:   That is, there may therefore be, if that is right - and I emphasise the conditional nature of the statement - if that is right, there may then be, may there not, two factual issues that are at least lurking.  One, what is the position in fact of this applicant?  What is the quality of his understanding of the English language as a matter of fact?  Second, what was the course of proceedings below and does that course of proceedings bear in any way on the questions that are then said to fall for decision?

MR McARDLE:   Yes.

HIS HONOUR:   The latter of those two questions at first blush would seem to be a matter of record rather than a matter of evidence, that is if there was some statement made, as I think my memory is, recorded in a transcript of proceedings about which I assume there would be no dispute.  But the former question that you mentioned, "What in fact is the level of understanding of Mr Nguyen's understanding of the English language," may or may not be a matter for trial.

MR McARDLE:   Yes.

HIS HONOUR:   What do you say we should do about that possibility?

MR McARDLE:   At some stage or another - and as things presently stand we are content to have the matter of jurisdiction at the very least looked at and explored.

HIS HONOUR:   Yes.

MR McARDLE:   At some stage I anticipate there is going to have to be some facts found in this matter and that is not, in our submission, appropriate for five judges of the court to do it.  Now, it can be resolved by remitting that issue if ‑ ‑ ‑

HIS HONOUR:   But are those facts, facts which are going to go to the jurisdictional issue, at least as you see that issue likely to form?

MR McARDLE:   I think so, but perhaps we would first look at the jurisdictional issue.

HIS HONOUR:   Yes.

MR McARDLE:   I am just simply at this stage flagging for further consideration.

HIS HONOUR:   It may mean, Mr McArdle, that if there is a possibility of that kind in the background that it is better that the submissions come in, the matter come back for further directions, particularly then with the parties being on notice that they should give careful attention to whether any facts need to be found before the matter comes back before a Full Court, or

whether some reference of question, as for example a question of jurisdiction to a Full Court, may be an appropriate course.

MR McARDLE:   Yes.

HIS HONOUR:   I express no view on it.  I simply flag it as a matter for consideration.

MR McARDLE:   Your Honour, a rough estimate as to when the preliminary matters would be concluded takes us, we think, well into May.

HIS HONOUR:   7 May is the second of the three-week periods mentioned, I believe.

MR McARDLE:   Yes.  Allowing some latitude - days perhaps - I think my learned friend tells me that the time then would be a time in which the court is sitting, as I think a Full Court, is it?

HIS HONOUR:   No, the sittings commence on Tuesday, 19 May.  I would propose, if this timetable is to be adhered to, to bring the matter back for directions on Monday, 11 May.

MR McARDLE:   Very well.

HIS HONOUR:   That would mean there would be no latitude.  The three‑week periods would be precisely that.  It is a matter which has been in the wings long enough.

MR McARDLE:   Thank you, your Honour. 

HIS HONOUR:   Now, do the interveners seek to be heard?  Firstly, Mr Willheim for the Commonwealth.

MR WILLHEIM:   Thank you, your Honour.  We certainly see a need for the basis of the claim to be elucidated and the basis of the claim for jurisdiction.  It may be that when we get the further submissions there is a clear contest as to jurisdiction and it is appropriate to set that down.  It may be that the prosecutor can establish jurisdiction in which it may be appropriate to remit the matter to another court which could deal both with the claim itself and with the factual issue.  We think that would best be addressed at the next directions hearing, your Honour. 

HIS HONOUR:   Yes.  Mr Ruddle?

MR RUDDLE:   I have nothing further to say, your Honour. 

HIS HONOUR:   Yes.  Subject to anything that counsel may say about the form of the orders, I would propose to direct as follows.  (1)                  On or before 16 April 1998 prosecutor file and serve on respondent and on - all interveners or all attorneys?  Is there any submission about whether it should be simply on the interveners who have already expressed an interest or should it be on all attorneys?

MR PERKINS:   I would suggest that we do it on all of them, if your Honour pleases.

MR RUDDLE:   Yes, I would also suggest that, your Honour.  It may be that the submissions raise a different jurisdictional issue that had not been raised in the original 78B notice.

HIS HONOUR:   Yes, I see. 

1. On or before 16 April 1998 the prosecutor file and serve on the
            respondent and on the Attorney-General for the Commonwealth,
            the States and the Territories its submissions in writing which:

(a) identify the basis or bases of the claims made in the
              proceeding,

(b) identify the basis or bases of its claim that this court has
              jurisdiction in the proceeding,

in each case including references to such authorities as it relies on.

1. On or before 7 May 1998 the respondent, and if so advised any of
            the Attorney-Generals for the Commonwealth, the States or the
            Territories seeking to intervene in the proceeding, file and serve
            submissions in answer to the prosecutor's submissions.

1. Adjourn directions hearing to Monday, 11 May 1998 at 9.30 am or
            such other day as may be fixed by a justice of the court.

1. Reserve costs.

1. Certify for counsel.

Does anybody seek to be heard on the form of those orders?

MR McARDLE:   No, thank you, your Honour.

MR WILLHEIM:   No, thank you, your Honour.   

MR RUDDLE:   No, thank you, your Honour. 

HIS HONOUR:   Very well, there will be orders in those terms.

MATTER ADJOURNED AT 10.06 AM UNTIL
MONDAY, 11 MAY 1998