OAE v The Queen

[2007] HCATrans 473

[2007] HCATrans 473

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A28 of 2007

B e t w e e n -

OAE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 AUGUST 2007, AT 10.54 AM

Copyright in the High Court of Australia

MR N.M. VADASZ:   If the Court pleases, I appear for the applicant.  (instructed by Kyrimis Lawyers)

MR M.G. HINTON, QC:   May it please the Court, I appear for the respondent with my learned friend, MR M.A. ALESSANDRINI.  (instructed by Director of Public Prosecutions (SA))

KIRBY J:   What is the attitude of the respondent to the application that the matter should be listed at the same time as there is listed before the Court on 23 September the matters of HML v The Queen and SB v The Queen?

MR HINTON:   If the Court is minded to grant special leave, then that would be appropriate, in my submission.

KIRBY J:   One course that we could take, thereby leaving it open to the Full Court, would simply be to refer the application into the Full Court so that it is there on the same day as the Court is hearing the two matters to which I have referred.  Given the overlap of the issue and given the wish of the applicant to have the opportunity to add to the submissions, may that not be the correct course for the Court to take, not to grant the special leave but to leave it to the Full Court in the light of the development of argument and any additional argument that it hears from Mr Vadasz concerning the matter that is in common?

MR HINTON:   That is a practical approach.  I cannot deny that the grounds of appeal agitated here nicely top and tail those in the other two matters.

KIRBY J:   Are you appearing in the other matters yourself or has the Crown not yet worked out who its counsel will be?

MR HINTON:   No, we have and I am not one but the first question here is whether or not they are admissible.  The others do not target the standard of proof and here we do so as you go through it, you will touch upon it in any event.  So there is that practical approach.

HAYNE J:   But if the parties came prepared to argue as on appeal and filed outlines of argument as on appeal, the points are before the Full Court and the Full Court as then constituted can deal with it as that court considers appropriate, can it not?

MR HINTON:   Again, I cannot deny that.  In one way you get the benefit of the one stop shop on uncharged acts as opposed to just targeting directions and the potential argument remaining in the ether.

HAYNE J:   It is not a thought on which I want to dwell, Mr Hinton.

KIRBY J:   I have never heard the High Court of Australia described as a one stop shop. 

MR HINTON:   I am ever hopeful.

KIRBY J:   Times are changing.  Yes, very well.  Thank you for your assistance.  I will just ask you, Mr Vadasz, what would your submission be if the Court were minded simply to refer the application into the Full Court but to direct that you prepare as on the return of an appeal and file written submissions that can be considered by the Full Court in deciding whether to grant special leave and, if so, whether to allow the appeal?

MR VADASZ:   I would be pleased to adopt that course.

KIRBY J:   You would be content with that course?

MR VADASZ:   I would, your Honour. 

KIRBY J:   That is the course the Court will take.  We will order that the matter of OAE v The Queen be returned before the Full Court on 23 September 2007 as it is constituted on that day to hear the matters of HML v The Queen and SB v The Queen; that the parties prepare written submissions as on the return of an appeal and that there be reserved to the Full Court as then constituted the question of whether to grant special leave and, if so, the orders that should be made in the appeal pursuant to any such grant.  There is no reason for the Court to deal with matters of costs.

MR HINTON:   None at all.

KIRBY J:   Is there any other order that the Crown seeks?

MR HINTON:   I am just wondering if the Court will wish to set in place time limits for the filing of arguments.

KIRBY J:   It might prudent, yes.  When could you get your full submissions in, Mr Vadasz?

MR VADASZ:   I would ask for a fortnight.

KIRBY J:   Can you have your submissions in, say, within a week?  There is not all that much time, you know, between now and then.  Monday is the 3rd.  We know that because Justice Kiefel is being sworn in on Monday.  Then we have to get to the 23rd, so that leaves but three weeks.

MR VADASZ:   I would ask for the 10th, if I might, which is a Monday.

HAYNE J:   It is 25 actually, rather than 23, unless you are going to be here on Sunday.

KIRBY J:   I will be here on Sunday but I do not know whether my colleagues will be.  Yes, I am sorry, it is the 25th.  If we gave you 10 days, that would take you until Thursday, 13 September and the respondent should then have seven days, because of the vast resources of the Crown, until 20 September.  Any replies should be filed by Monday the 24th.  Would that be convenient?

MR HINTON:   We are in Court on the 23rd?

HAYNE J:   The 25th.

KIRBY J:   I said 23, but I was wrong.

MR HINTON:   In mind of the vast resources of the Crown, if it assists the Court, I am happy to abridge our time further.  I imagine we could be ready within three days of receiving my learned friend’s argument, so by the Monday?

KIRBY J:   All right.  If it is 13 September for the respondent, you could have yours in by the 17th.

MR HINTON:   By close of business on the 17th.

KIRBY J:   That would mean that the applicant would have to have the written submissions in by, say, the 13th, that is the Thursday of that week.

MR HINTON:   Yes.

KIRBY J:   Is that convenient to you, Mr Vadasz?

MR VADASZ:   Yes, your Honour, the 13th, and the reply by the 24th still?

HAYNE J:   Bring the reply back to, say, 21.

KIRBY J:   Very well, 21.  I will give the dates that the Court directs, 13 September for the applicant’s submissions, 17 September for the respondent’s submissions and 23 September for the reply.  They are the directions of the Court as to the filing of the submissions.

AT 11.01 AM THE MATTER WAS ADJOURNED