Parker v Commonwealth Director of Public Prosecutions B69/2002

[2003] HCATrans 848

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B69 of 2002

B e t w e e n -

KENNETH EDWIN PARKER

Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
  Brisbane  No B15 of 2003

B e t w e e n -

ROBERT MURRAY COOPER

First Applicant

BRIAN MICHAEL WOOD

Second Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
  Brisbane  No B16 of 2003

B e t w e e n -

RODNEY JAMES MACKAY

First Applicant

JOHN ANDREW ALLEN

Second Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Applications for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 10.11 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court please, I appear with my learned friend, MR S.A. SHIRREFS, SC, for the applicants.  (instructed by Shand Taylor Lawyers)

MR D.J.S. JACKSON, QC:   May it please the Court, I appear with my learned friend, MR S.J. KEIM, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Jackson.

MR D.F. JACKSON:   Your Honours, in this matter, may I say we seek to make a supplementary submission which I have given to our learned friends this morning and may I give your Honours copies of it now?  It is, your Honours, may I say immediately, an aspect of the matter which raises a substantial question which has not earlier been agitated in the matter, and that is the question of the validity of the referral of powers.

Your Honours, it is right to say that the section 78B notices which have been given and in relation to which there was not a response of anyone wishing to be heard at this point is one which does not cover precisely the issue sought to be raised by this document.

GLEESON CJ:   What follows from that?

MR D.F. JACKSON:   Well, your Honour, it does potentially give rise to two things, I think.  One is that it may be that the appropriate course would be for the matter to be adjourned, first, because of the lateness of it in any event; the second thing is because of the fact that the possibility of appearing here has not been raised with the various Attorneys‑General.  That is the first thing.  The second thing is, your Honours, that this is an issue on which one might expect that perhaps at least the State of Queensland would wish to be heard.

GLEESON CJ:   I suppose the third possibility is that we would simply not entertain this point.

MR D.F. JACKSON:   Yes, your Honour.  Could I say in relation to it that it is an issue which we would seek to raise in any event by instituting proceedings in the original jurisdiction of the Court.

GLEESON CJ:   You can do that.

MR D.F. JACKSON:   Sorry, your Honour?

GLEESON CJ:   You can do that…..notices can be given.

MR D.F. JACKSON:   Yes, of course, your Honour.  I simply mention the point, your Honour.

GLEESON CJ:   This is a point that was not taken below.  It is a point that is still open to you.  If we simply said that we would not hear argument from you on this point on this application, then you would be able to commence fresh proceedings to raise it.  Is that right?

MR D.F. JACKSON:   Yes, your Honour, subject to any question of there being an estoppel between these parties in relation to it that would not affect other parties.

GLEESON CJ:   What is your attitude to this, Mr Jackson?

MR D.J.S. JACKSON:   As to whether the point is to be raised, your Honour, I do not have specific instructions.  As to whether, if it is raised, there is to be an adjournment, we do not seek ‑ ‑ ‑

GLEESON CJ:   You do not have any instructions on the matter that is of immediate interest to us?

MR D.J.S. JACKSON:   Quite, I understand that, your Honour.

GLEESON CJ:   All right, yes.  We will not hear argument on that point, Mr Jackson.

MR D.F. JACKSON:   Your Honours, in relation to the other aspects of the case, the only matters which we seek to agitate concern the question of whether it is an appropriate conferral of judicial power of the Commonwealth in relation to the fact that it relates to prosecution for matters that occurred at a time when, consistently with the issue remaining undecided in R v Hughes, the Commonwealth did not have power to legislate in respect of the particular topic.  Your Honours, I do not think I can advance it beyond the matters that are set out in our written submissions.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, we do not need to hear you, Mr Jackson.

In this matter, the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is refused with costs.

AT 10.15 AM THE MATTERS WERE CONCLUDED