Nixon v The Queen

[2001] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A3 of 2001

B e t w e e n -

GARY NIXON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 1 JUNE 2001, AT 10.32 AM

Copyright in the High Court of Australia

MR C.J. KOURAKIS, QC:   If the Court pleases, I appear with MR H.M. HEUZENROEDER for the applicant.  (instructed by Jon Lister)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with MR T.J. HEFFERNAN for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

GUMMOW J:   Yes, thank you, Mr Kourakis.

MR KOURAKIS:   If the Court pleases, in my submission, if it can be shown that there is a reasonably arguable case that the Witness Protection Act confers a jurisdiction on the Supreme Court, which is incompatible with its position as an essential integer in the Australian judicial system, then there is special leave clearly because of the inconsistency with the provisions of the Constitution. Your Honours, to make the submission that it is so inconsistent, it is convenient to take your Honours to section ‑ ‑ ‑

GUMMOW J:   Can we look at it somewhat precisely?  The order made by Justice Debelle, that has been complied with, has it?

MR KOURAKIS:   Yes.

GUMMOW J:   It is spent, in the technical sense, I suppose.

MR KOURAKIS:   Yes.

GUMMOW J:   And the other complaints, which may be good complaints, may never come to pass, or to resolve them one would need further facts, in other words, a trial.  I think that is what is put against you.

MR KOURAKIS:   Yes.  In my submission, no.  The order having been made, information about “Jim’s” prior convictions have been disclosed and nothing more.  The next steps that will follow are twofold.  The most important, for our purposes, is a subpoena directed to various persons, and two subpoenas have already been issued and are in the application book, to ascertain further information about “Jim”, his antecedence and so forth, so that the issue of credit, when it arises at trial can be fully explored and advanced.  Those subpoenas ‑ ‑ ‑

HAYNE J:   What has happened about those subpoenas?  Has application been made to set them aside?  Have they been answered?  What has happened?

MR KOURAKIS:   No application to set them aside and they have not been answered.  Rather, the applicant foresaw that the answer to the subpoenas will simply be that the Act, section 21 of the Act, prohibits the disclosure of the information they seek and accordingly, the applicant sought determination as a preliminary issue, the validity ‑ ‑ ‑

GUMMOW J:   Wait a minute.  Subpoenas were issued.  Were they returnable on a particular date?  I imagine so.  Have they been called on?

MR KOURAKIS:   No, they have not been called on.  The subpoenas appear at pages 24 and 25 and a date was nominated, as your Honours can see, but they were not called on because the procedure the applicant chose to advance was to seek a determination as a preliminary question, and these procedures are available under the Criminal Law Consolidation Act.

HAYNE J:   Mr Kourakis, I understand that is what has happened.  Can I just follow it out a bit more?  The subpoenas ask for certain information.  We do not know what will be produced in answer to it, as, for example, we do not know whether certain documents masked as to part are produced.  So we do not know, do we, how, if at all, it is said that you say section 21 of the Act is engaged in this case and until we know that, how do we determine what the incompatibility is?

MR KOURAKIS:   If your Honour pleases, in my submission, the incompatibility, if there be incompatibility, is to be determined by considering the legislation and the way in which that it is incompatible, if it be so, with the position of the Supreme Court, but in further answer ‑ ‑ ‑

GUMMOW J:   But in Kable there was a very real case.  Things had actually happened.

MR KOURAKIS:   Yes.

GUMMOW J:   Orders had been made, a trial had been convicted.  That was the description of what was being done.

MR KOURAKIS:   Yes.  Your Honours, section 21 is in wide and absolute terms and it simply prohibits the disclosure of any information about the identity of this person “Jim”.  The trial cannot proceed very far without that issue then immediately arising.  It is for that reason that what, in my submission, would have been simply the formal step of calling on was not taken.  It was clear that the applicant was always going to contend that the Act and section 21 was invalid.  The prosecution contended otherwise.

If your Honours please, this question, if this be a problem, will arise within days of it being remitted back.  Moreover, that problem was not one that was advanced in the Full Court of the Supreme Court.  It is the case that the Director opposed the stating of this case before the learned trial judge but once it was stated it was not put to the Supreme Court that it should not answer until that step ‑ ‑ ‑

GUMMOW J:   Yes, I know that but at all stages there has been federal jurisdiction being exercised here because there is a constitutional question being agitated.

MR KOURAKIS:   Yes.

GUMMOW J:   That does not seem to have been apparent below.  Perhaps it should have been made apparent to the Court.

MR KOURAKIS:   Yes.  Perhaps if your Honours could just give me a moment.  Your Honours, applying the approach that this Court adopted in Mellifont, of course, from what I have said so far and given the absolute terms of section 21, it is clear that the answer to this question ‑ ‑ ‑

GUMMOW J:   Well, in Mellifont there had been actually an order, had there not, by the Queensland court?

MR KOURAKIS:   Yes.  The importance, though, in my submission, was that although that trial had completed, it was over there, the provision of the declaration was going to be influential, important in proceedings.  The answer of this question will clearly be important in all steps from the answer to the subpoena to the very first questions that would be asked of the witness in cross‑examination as to his identity and your Honours have, in the book of authorities, the decision of the Supreme Court of the United States in Illinois v Smith, which shows and accepts how fundamental those first questions proceeding from identity are when issues as to credit are important in a trial.

GUMMOW J:   There is no doubt in one’s mind as to the fundamental importance of all this.  It is really a question of prematurity in this Court.

MR KOURAKIS:   Yes.  Your Honours, the provisions of the Criminal Law Consolidation Act allow for the determination of a question of law in advance by the trial judge and, if necessary, the stating of a case with respect to such questions ‑ ‑ ‑

GUMMOW J:   You see, in Smith v Illinois the point sprang out of the trial, did it not?

MR KOURAKIS:   Yes.

GUMMOW J:   The question was asked and it was rejected.

MR KOURAKIS:   Yes.  Your Honours, I accept that ‑ ‑ ‑

KIRBY J:   Your contention is that your client should not be put on a trial in a circumstance where these fundamental flaws are apparent from the very outset, but the issue is whether or not, from the point of view of this Court, it would not be more appropriate to Justice Debelle’s order being spent, for us to consider any such arguments at the point where, at least one step has been taken in the trial which is, perhaps, the return of the subpoenas or the subpoena that you have issued.

MR KOURAKIS:   If the Court pleases, in my submission ‑ ‑ ‑

KIRBY J:   You see, we have our own principles which restrain us from interfering prematurely, unnecessarily or too often in criminal trials.

GUMMOW J:   You remember Elliott’s Case is a recent example of that.

MR KOURAKIS:   Yes, if the Court pleases, in Elliott’s Case there was an attempt to appeal directly to this Court from a decision of the trial judge when in Victoria there were no State provisions which allow ‑ ‑ ‑

GUMMOW J:   Yes, we appreciate that, but in the last concluding paragraphs of the joint judgment to its two persons here today who were parties there is some reaffirmation of the general reluctance to get involved in criminal trials at an interlocutory stage.

MR KOURAKIS:   If the Court pleases, in my submission there are two issues which are, no doubt, related which your Honours have raised.  The first is as to the general fragmentation of the criminal process but, of course, the issue was of enough importance in Grollo for it to be considered in a way which, in the broad sense, fragmented the criminal process.  Indeed, in Grollo there had not yet been any attempt to lead the evidence at the trial because Mr Grollo forestalled it by taking an application in the Federal Court to prohibit that very use.  That question then raising the question of the validity of the conferral of the power on a Federal Court judge’s personae designatae to issue the warrant.  This question, in my submission, is not that much different.

HAYNE J:   But the question underlying this debate is, what is the relevant question on an issue antecedent to trial or relevant to the trial that arises?  The power to state a case stems from identifying a relevant question.  At the moment it is cast in terms of, “Is section 24 invalid?”  At that level of generality, the connection between that question and a question arising on trial is not apparent and it is that which seems to me to represent the fundamental difficulty you now confront.

MR KOURAKIS:   If your Honour pleases, the connection can only be stated in this way.  The validity of section 24 determines the validity of section 21.  Section 21 creates a blanket prohibition on the provision of anything about “Jim’s” identity.  So long as that blanket prohibition remains, the trial cannot proceed very far.  Under the South Australian provisions there is capacity to decide in advance of trial questions of law which are likely to arise and have effect in the trial.

GUMMOW J:   We understand that, but I just wonder why the matter was not, at least, crystallised to this degree, by calling on the subpoenas crystallising the result of that, then if you like, taking some preliminary steps under the South Australian case stated arrangement to further crystallise it and then, perhaps, applying to remove here under section 40, because there would then be a cause pending in the South Australian court in federal jurisdiction, because it is a constitutional point, which was in proper shape, if I can put it that way. At the moment this case stated looks like (a) premature and (b) vague.

KIRBY J:   And (c) arguably dependent on a spent order.

GUMMOW J:   Yes.

MR KOURAKIS:   Yes.  Your Honours, the reason we say it arises is not directly as a result of the ‑ ‑ ‑

GUMMOW J:   I know this may all seem very technical, but when one is dealing with validity of laws, the jurisprudence here is to require some specificity about it all, given the seriousness of the remedy of declaring something invalid.

MR KOURAKIS:   Your Honours, apart from the prospective importance to the trial, the only other submission I make is that it directly affects the question of prosecution disclosure, which is a step which has proceeded.  Your Honours can see that from page 20 of the application book in paragraphs 4 and 5 of Mr Lister’s affidavit.

GUMMOW J:   Yes.

MR KOURAKIS:   Your Honours, the question of prosecution disclosure before trial is sufficiently connected and a sufficiently important issue.  Indeed, one of the arguments advanced against the validity of this Act is that it requires a Supreme Court justice, just as Justice Debelle did in this

case, to supervise a distinctly prosecutorial discretion being the discretion to disclose material that might assist the defence.

GUMMOW J:   Yes, by ex parte application in chambers with prescription as to who is to be in the chambers and so on and so forth.

MR KOURAKIS:   Who is not to be in the chambers.

GUMMOW J:   Exactly.  Yes.

MR KOURAKIS:   If the Court pleases, my further submissions are simply as to those questions and as to why section 4 ‑ ‑ ‑

GUMMOW J:   Yes, we might hear from the Solicitor.

MR KOURAKIS:   If the Court pleases.

MR SELWAY:   Yes, if it please the Court, the first point we make is that the proceedings are premature:  firstly, in the sense that they are interlocutory; secondly, in the sense that the questions asked are, at this stage, abstract.

Your Honours, perhaps leading on from that second point and going to, if you like, the merits, the argument as to validity, as we understand, go at two levels.  The first one is the role of the Supreme Court in making the ex parte order under section 24.  As to that we say, firstly, it is not invalid but secondly, as ‑ ‑ ‑

GUMMOW J:   Is it 24, Mr Solicitor?

MR SELWAY:   Yes, your Honour, section 24 of the Act.  The Act is in our ‑ ‑ ‑

GUMMOW J:   Yes, 24(8) and (9).

MR SELWAY:   Yes, your Honour.  Certainly it raises issues but we say it is not in the same, if you like, area of discourse as Kable but, in any event, that order, as your Honours have noted, has been spent.  The second argument is that the other provisions of the Act, in particular sections 17 and 21, require the court to proceed to trial with an anonymous witness, even where the trial would be unfair.

We say, with respect, that is not self‑evident.  Firstly, it is not self‑evident that the Act has that effect.  If I could take your Honours to section 23(3).  That is the general provision under section 23, saying that various persons are not required to disclose information.  Section 23(3):

If it is essential to the determination of legal proceedings under or in relation to a law of this State that the judicial officer presiding over the proceedings be advised of‑

various matters –

a person referred to . . . must disclose the relevant information to the judicial officer –

but it is done in chambers and with prescription as to who can be there, and then if I could take your Honours to section 25 ‑ ‑ ‑

GUMMOW J:   Well, subsection (3) has a similar sort of prescription as to the conduct in the chambers as is 24(8).

MR SELWAY:   Yes, your Honour, it certainly does.  Then, if I could take your Honours to section 25, which is the power “in a court, a tribunal or a Royal Commission” where the “interest of justice require” to, if you like, receive evidence in relation to, if you like, secret witness protection material but requires the court to “hold” those “proceedings” in “private” and make orders as to “suppression”.

GUMMOW J:   Would that be met by a simply closed court?

MR SELWAY:   Yes, your Honour, that is my understanding of what that proposes.

GUMMOW J:   So it is a different sort of exclusion to 24(8), for example, which is about chambers.

MR SELWAY:   Yes, your Honour.  My understanding of how this probably works is that under section 21 there is a general prohibition, an offence provision, for disclosing information.  There are exclusions to that in the Act and I would have expected that the way the matter would proceed is that firstly, an objection having been raised, the trial judge would consider the matter firstly in chambers to find out what the evidence is and what the risks might be, and then if it was necessary to proceed and have the evidence called in the interests of justice, to proceed under section 25 and allow the evidence in.

GUMMOW J:   How would it operate, Mr Solicitor, as you said at the anterior stage of a subpoena, the calling of a subpoena?

MR SELWAY:   The subpoena may well then, in the answering of the subpoena ‑ ‑ ‑

GUMMOW J:   The first step, do you have procedures in South Australian in criminal trials whereby subpoenas are called in advance of the trial?

MR SELWAY:   They can be, your Honour, though not always.

GUMMOW J:   Yes.

MR SELWAY:   And the process, we would say, would be a matter of, as it were, looking at the facts and the circumstances and what the parties wish to achieve but we would see that there is a process there by which a fair trial can be obtained and achieved, even if credit and witness identity is essential.  The issue, though, is whether those circumstances should apply in a particular case and we would say that is a matter that we can only really determine when we have a look at the facts of a particular case and see how the trial judge has actually handled it.

Your Honours, our interpretation of those provisions may be wrong.  The Act is not particularly clear, but the argument my friend puts is predicated upon those ‑ ‑ ‑

GUMMOW J:   It differs in its structure, does it not, from the Commonwealth Witness Protection legislation of 1994?

MR SELWAY:   Certainly some of these procedures, if I might say ‑ ‑ ‑

GUMMOW J:   Section 25  - that is the non‑disclosure in court proceedings that you just took us to – that seems to resemble 28 of the federal Act, but the other steps involving these anterior transactions in chambers and so on, they do not seem to be in the federal Act.

MR SELWAY:   No, and clearly the meaning and effect of the Act is going to have to be explored.  The Full Court said it was inappropriate to explore it on the abstract questions that were before it and without any facts.  We say the Full Court was right in doing that.  We say that your Honours would be right taking the same course. 

The argument my friend puts is predicated upon section 21 preventing a court proceeding to have a fair trial and, with respect, we say that is not at all obvious that that is the effect of the Act.  It can be construed other ways and we would expect that it will be.

We would also submit that it is not at all obvious that courts do not retain an inherent jurisdiction to protect their own processes, notwithstanding this Act, so that if the Act had the effect my learned friend

says it has, we would submit that the District Court probably still has an inherent jurisdiction to stay a trial if it would be unfair.

Further, we would say, it is not self‑evident that maintaining a witness’s anonymity in a particular case and in particular factual circumstances necessarily leads to an unfair trial and although there are some cases which suggest it must necessarily have that effect, the later cases, at least in this country, are to the contrary, and in particular the Victoria Court of Criminal Appeal in Jarvie, which is in our outline.

Your Honours, our submission broadly is that these issues cannot be considered in the abstract.  We suspect that even the answering of the subpoena may not be sufficient.  There may be a need for even further evidence than that but, at this stage of the process, we say the case is not in a fit state to be considered by this Court.

Your Honours, I do not think I can put any more than that.

GUMMOW J:   Yes, thank you, Mr Solicitor.

MR SELWAY:   Thank you, your Honour.

GUMMOW J:   Yes, Mr Kourakis.

MR KOURAKIS:   If your Honours please, the construction advanced by the learned Solicitor-General as to section 23(3), with respect, misunderstands it and gives it more scope than it has.  That only allows provision of information as to whether the person is on the program, not as to his identity which would at all solve the problem of not being able to test credit.

Furthermore, it can only be disclosed to the judicial officer and the associate and not to the accused.  Similarly, section 25 assumes that information as to the identity has been otherwise given.  It does not provide a basis to disclose the information itself.  In any event, our submission is that the Act should be struck down and found to be invalid so that we are not thrown back on any discretion but simply have a trial according to law within the ordinary judicial process.

Your Honours, if special leave were not to be granted, then in the alternative, I would ask that your Honours consider adjourning this application for special leave pending such further steps such as calling on the subpoena as might be taken.

Your Honours, finally, as to your Honour Justice Gummow’s observation as to section 24, South Australia is the only State which has

placed the Supreme Court in that position. It did so after amendments moved in our Legislative Council and after, indeed, consultation with a committee of Supreme Court justices who expressed their satisfaction with the amendment. Nonetheless, in our submission, it is clearly in breach of the Constitution. If the Court pleases.

GUMMOW J:   The order actually made pursuant to the Witness Protection Act 1996 (SA) by Justice Debelle has been complied with and is now spent.

The issues which the applicant seeks to agitate about the constitutional validity of that Act arise only of certain facts additional to those that now appear in the case stated are assumed or proved. There being no admission of or agreement about those facts and there having been no proceeding in which they have found to be established it would not be appropriate for this Court to embark, at this stage, upon the consideration of the issues which the applicant seeks to raise. That is not to say that at some other stage of proceedings that it may not be appropriate for this Court to consider those issues, whether upon a special leave application, that is to say a fresh special leave application, or an application for removal under section 40 of the Judiciary Act 1903 (Cth).

Special leave is refused.

AT 10.58 AM THE MATTER WAS CONCLUDED