Private R v Cowen & Anor

[2020] HCATrans 22

[2020] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S272 of 2019

B e t w e e n -

PRIVATE R

Plaintiff

and

BRIGADIER MICHAEL COWEN

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 27 FEBRUARY 2020, AT 10.15 AM

Copyright in the High Court of Australia

MR B.L. JONES:   May it please the Court, I appear for the plaintiff.  (instructed by Wyatts Lawyers)

HIS HONOUR:   For the first defendant, there is a submitting appearance.

MS J.E. DAVIDSON:   Your Honour, I appear for the Commonwealth.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Jones, perhaps we will start with you.  It is probably convenient to deal with the issue of the statement of agreed facts first and then to turn to the summons.  Can I just ask – will you be appearing for the plaintiff at any oral hearing of the matter, or has other counsel been briefed?

MR JONES:   No, I will be appearing.

HIS HONOUR:   All right.  From your discussions, as I take it, with the Commonwealth as to the draft statement of agreed facts, it is not entirely clear to me what reason there is for the so‑called objections that you take to the inclusion of a number of the paragraphs, and particularly paragraph 3 and the proposed annexures to the statement of agreed facts.  Perhaps you could just explain that to me.

MR JONES:   I am sorry, does your Honour have the copy of the submissions that we filed yesterday afternoon?

HIS HONOUR:   Yes, and I have read those.

MR JONES:   Yes.  So in terms of the – I will start with paragraph 3.  There are elements – and there may be some confusion, but there were some elements of paragraph 3 that are disputed.

HIS HONOUR:   There is a factual dispute?

MR JONES:   Yes, but that ‑ ‑ ‑

HIS HONOUR:   That was really my concern. I will come to the details of the factual dispute in a moment, but where we have a case where an underlying factual substratum may be quite relevant to determining the boundaries of section 51(vi) why should the matter not be remitted?

MR JONES:   As a general principle, I would entirely agree with your Honour.  However, in terms of – I will leave aside the annexures to which objection is taken because they fall into an altogether different category.  As to paragraph 3, there are aspects of which there is agreement.  Perhaps the misunderstanding was entirely mine, but I had understood it referred to the plaintiff’s training, et cetera, at the time of the alleged offence.  I have since been informed by my friend that that was not what was meant to be conveyed and that it includes his training, apparently up until now.  If that is the case, with appropriate qualification, then those matters can be agreed.

HIS HONOUR:   All right.

MR JONES:   So, ultimately, what I am saying, your Honour, is perhaps with a brief – a short amount of time, those matters can be agreed, of course subject to relevance.

HIS HONOUR:   Does that include the annexures, being the complainant’s statement and the prosecution’s summary of agreed facts?

MR JONES:   Those objections are a little bit different.  Primarily, they are of course objections as to relevance for the reasons that have been outlined ‑ ‑ ‑

HIS HONOUR:   Obviously that is not the test.

MR JONES:   Sorry, your Honour, test?

HIS HONOUR:   There is no test of relevance as to whether matters should be included in a draft statement of agreed facts because obviously relevance is a matter that might emerge once the boundaries of the test and the approach that is proposed to section 51(vi) is developed. At best, the approach that you ought to be taking is one of potential relevance, not one of actual relevance.

MR JONES:   Certainly as the plaintiff currently understands or apprehends the contentions advanced by the Commonwealth, that is the position which has been adopted in terms of the test we have just been discussing, your Honour.  In terms of the – hopefully it was clear from those written submissions, the fact that the statement – the prosecution’s outline of facts in large measure mirrors aspects of the complainant’s statement, but the fact of those documents existing and being what they purport to be, there is clearly no dispute about that at all.  Hence, that is why the content of paragraphs ‑ ‑ ‑

HIS HONOUR:   What is the objection, what is the concern then? If there is no dispute about any of the facts, this concerns the underlying substratum where you are asking this Court to undertake a detailed consideration of section 51(vi) of the Constitution, yet you are not prepared to agree to include potentially relevant underlying facts.  I do not quite understand that.

I mean, if the concern is that some of those facts might be in dispute, then I could clearly understand that and that is a strong reason why the matter ought to be remitted to have findings of fact made as to what the factual substratum is for the determination of this dispute.  If not, what is the basis for your concern?

MR JONES:   I think as I – I am sorry, the fault is mine, your Honour, in perhaps not explaining it clearly in my submissions yesterday, but in terms of the – given the matters that have previously been before the Court and this Court has considered the constitutional principles, none of them at any time have considered the particular manner of offending, that is to say I gave the example in Albert’s Case.  That was a case where the member had been charged with rape.  The manner in which ‑ ‑ ‑

HIS HONOUR:   Are you submitting that the arguments that you would make to this Court are going to be identical to the arguments that have been made in previous decisions concerning military tribunals and section 51(vi)?

MR JONES:   I cannot say that at that level of generality, your Honour.  What I will be advancing is that the test proposed – or rather, the test that is contained in the decisions of Justices Brennan and Toohey in that trilogy of cases is the correct test and ought find favour with this Court.

HIS HONOUR:   And, because Justices Brennan and Toohey did not refer to particular facts in that case, therefore this Court is not, in your submission, to have regard to any of the underlying facts?

MR JONES:   In terms of underlying – there are two aspects to the underlying facts, your Honour.  There are those facts which relate to the circumstances of the offence and those are the circumstances, for example, that were considered in particular detail in Albert’s Case, namely who the member was, where he was posted, how he got to where the offence with which he had been charged occurred, et cetera.  It simply did not feature because, in my submission, it was completely irrelevant.  The way in which the victim alleged that she had been raped, what he said to her, what he did to her was completely and utterly irrelevant to the constitutional questions.  I accept completely that all those other facts and circumstances that were referred to are completely relevant to determining the jurisdictional question.

HIS HONOUR:   I thought you accepted before that the test is not one of relevance. One ought to ask whether, in an area of potentially developing constitutional jurisprudence, the particular facts are facts that might be regarded as relevant to the development of the boundaries of section 51(vi). It is a matter for you, but at the moment my view is that if there cannot be a clear statement of agreed facts between the parties, and if we are going to have to proceed by reference to affidavits and then disputes about the content of the affidavits, then that is the almost par excellence a reason for this matter to be remitted to the Federal Court.

I am happy to be convinced otherwise, but it seems to me that that is a very good basis for the lower courts to decide all of the factual substratum, to decide what is thought to be relevant, everything will be laid out and then if an appeal needs to be brought by one or other of the parties, this Court will have the benefit of a clear and established substratum of all of the facts that are necessary.

MR JONES:   Sorry, your Honour, the terms of the facts that are in the annexures, in particular the complainant’s statement to service police, as far as I apprehend in my discussions with my friend and from the position of the Commonwealth that has been advanced in its reply, it does not seek any findings of fact in relation to what the complainant alleged – what she says in her statement.  In my submission, it would be inappropriate for there to be findings of fact about the nature of the offence to her ‑ ‑ ‑

HIS HONOUR:   I do not think the question is the findings of fact as to what actually occurred.  The question is what is alleged to have occurred.  It is the fact of what is alleged to have occurred and that is what would be tried.  No one is suggesting that this Court will sit effectively as a summary criminal court to determine the facts.

MR JONES:   Well, there is certainly no dispute – I cannot dispute that the statement is what it says to be, namely, a statement to service police by ‑ ‑ ‑

HIS HONOUR:   But you want this Court to proceed by reference to affidavits and then objections to affidavits rather than just including the statement in the statement of agreed facts.  I must say it just baffles me why it is that if you do agree that the allegations are what they are, and that their existence are effectively agreed facts, even if the content of those allegations might be disputed, why it is that particularly given the opening words of a usual statement of agreed facts the agreement between the parties is not an agreement that such facts are relevant to the issues before the Court.  Why would you want the facts in this Court to be fragmented by reference to affidavits and disputes about affidavits?  It is a matter for you, Mr Jones.

MR JONES:   All I can say, your Honour, is that, in my submission, there is no need for remitter because there is no requirement for there to be any findings of fact which would be – what would be expected if such a course were taken.

HIS HONOUR:   But you are not prepared to agree that as an agreed fact that, as you say, despite there being no dispute, there was a prosecution statement of agreed facts and a complainant statement that exist and have particular content.  You are not prepared to have them included as a statement of agreed facts.  You would prefer to proceed on the basis of affidavits with objections to affidavits?

MR JONES:   I am sorry, your Honour, perhaps I misunderstood.  The fault is entirely mine.  I misunderstood that these are agreed statements of fact and obviously – and I say this doing my best to understand the position to be advanced by the Commonwealth.  Obviously it is a matter for the Commonwealth how it ultimately puts its case, but I, with appropriate caveats, not just relevance, but bearing in mind, of course – I am not for a moment suggesting that the High Court or for any Judge alone could be prejudiced by the content of that statement, not at all. 

It is merely – the concerns – and they can be frankly addressed in legal submission on the case as to why they are or are not relevant in the course of argument and if that is the case I understand from my friend that the Commonwealth considers that that is appropriate, then the appropriate course then is with appropriate caveats, not just as to relevance but also preserving our right to make submissions on potential prejudice in the event that these disputed and untested allegations are referred to, then we can proceed on that basis.

HIS HONOUR:   Yes, all right.  Perhaps I will hear from the Commonwealth – from Ms Davidson – about the statement of agreed facts and also in relation to her summons.

MR JONES:   Thank you, your Honour.

MS DAVIDSON:   Would it be convenient, your Honour, for me to address on the statement of agreed facts first?

HIS HONOUR:   Yes, certainly.

MS DAVIDSON:   I would certainly embrace what your Honour has said about some degree of puzzlement in respect of the plaintiff’s approach insofar as the fact that is significant from the perspective of this case is the fact that the allegations have been made.  The fact of the allegations being made and the complainant’s statement being what it is, is entirely undisputed insofar as the Commonwealth understands it.

HIS HONOUR:   Is there any difficulty from the Commonwealth’s point of view with including an additional line in the prefatory words to the statement of agreed facts to the effect that the agreement as to the fact of the prosecution agreed facts and the fact of the complainant’s statement does not amount to agreement as to any of the underlying facts in those statements?

MS DAVIDSON:   I do not anticipate there would be any difficulty in respect of that.

HIS HONOUR:   Yes.  I think that may address the concern that Mr Jones had, but it may be just for an abundance of caution.

MS DAVIDSON:   Certainly we had anticipated that those kinds of arguments – and of course it is inherent in the fact that the charges are disputed that those allegations are not agreed to, but in any event there is no difficulty with including that additional line.  The position of the Commonwealth generally would be that to exclude those documents would be to deprive the Commonwealth, as your Honour would have read in the submissions, of constitutional facts that it says are properly – well, available in support of its arguments in what, as your Honour says, is a developing or potentially developing area of jurisprudence in defence of the validity of the exercise of the power.  The Court needs to have those facts before it in order to properly consider and rule on the argument.

HIS HONOUR:   Yes.  Ms Davidson, assuming then that a statement of agreed facts can be agreed, which seems from what both counsel have said that it can, would there be any difficulty with a timetable being programmed effectively for a hearing in June this year?

MS DAVIDSON:   I do not understand there is any problem in that.  No, your Honour.

HIS HONOUR:   All right.  Is there anything more you want to say about the statement of agreed facts then?

MS DAVIDSON:   Your Honour, if the objection has gone away, there was, in respect of annexures A and C and the relevance of paragraph 3, but if the objection has gone away I am not sure that any of it is relevant any more.

HIS HONOUR:   Yes.

MS DAVIDSON:   There is obviously material I would seek to deal with on the summons.

HIS HONOUR:   Yes, all right. Turning to the summons then, one immediate concern I have is section 77RG(2)(d) of the Judiciary Act which provides news publishers with a right to appear and be heard on an application such as this.  There was a listing of this application yesterday but it seems to me that in the particular circumstances of this case it might be appropriate for the Registrar to give several days’ notice to news publishers to appear and make any submissions that they wish to make.  Is there any reason why that course should not be taken?

MS DAVIDSON:   There is no reason why that course should not be taken.  I know that Justice Gageler in the Obeid Case, to which I have made reference in submissions, did take the view that their listing provided sufficient notice for the purposes of that section.  But I cannot point to any reason why a few days’ additional notice should not be able to be given.  None of the documents that are the subject of the proposed orders, other than the documents that are already on the Court file, are going to be added to the Court file in the next few days.

HIS HONOUR:   Yes.

MS DAVIDSON:   Anticipating that a timetable for a statement of agreed facts would postdate effectively, or potentially, the “in conjunction with the making” – that is the dates incorporated in that timetable could be in conjunction with any dates for hearing of the summons.

HIS HONOUR:   Yes. What I had in mind was to direct the Registrar to give notice to news publishers today and to list your summons for hearing on 3 March, that is next Tuesday, at 10.15 am. In those circumstances, would you need any interim orders under section 77RH(1) before the hearing of the summons on Tuesday?

MS DAVIDSON:   Your Honour, perhaps an interim order in the form of order 1 in respect of the pseudonym, given that no order has been in place in that respect, would accommodate the listing.

HIS HONOUR:   All right. 

MS DAVIDSON:   I know that I have not formally read Ms Gatehouse’s affidavit, so that, as I understand it, will not be placed on the Court file, so ‑ ‑ ‑

HIS HONOUR:   Yes.  It may be useful not to formally read any of the affidavits until the hearing of the summons ‑ ‑ ‑

MS DAVIDSON:   Yes, well that was the reason for ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ given that once affidavits are read and relied upon they become part of the file that may be inspected.

MS DAVIDSON:   Yes.

HIS HONOUR:   The other issue I have at the moment is with the scope of the redactions and I raise this ‑ ‑ ‑

MS DAVIDSON:   In the affidavit of Mr Wyatt, your Honour?

HIS HONOUR:   All of the redactions really.  If one starts with the application for a constitutional or other writ – and I raise these matters simply for you to consider prior to Tuesday – but as I take it, the concern of the redactions and the reasons for the redactions are concerned with effectively the identity and job description of the plaintiff and the complainant.  Is that right?

MS DAVIDSON:   Effectively, yes.  Service information, if I might put that a bit more generally than job description insofar as there are some numerical identifiers ‑ ‑ ‑

HIS HONOUR:   I see.

MS DAVIDSON:   ‑ ‑ ‑ and explanations in respect of what certain tasks entailed that are sought to be redacted.

HIS HONOUR:   Yes.  It is not suggested, for example, that you would redact the plaintiff’s actual application for a constitutional writ?

MS DAVIDSON:   No.

HIS HONOUR:   So if one turns then to paragraphs 7, 8, 9, 10, 11 and 12 of that application there are matters – for example, in paragraph 8 there is reference to the location of a hotel room and various other matters in A and B which it seems that the Commonwealth is seeking to redact in other material.

MS DAVIDSON:   Yes, your Honour, I see the difficulty.

HIS HONOUR:   At the moment I do not see how the particular location or name of a hotel would identify either the plaintiff or the complainant or their job descriptions, but no doubt that is a matter that you can address me on, on Tuesday.

MS DAVIDSON:   The other locations of the postings were not sought to be redacted.  Your Honour had indicated another paragraph number that you were concerned with in the application for a constitutional writ.

HIS HONOUR:   I do not have any concerns with the application for a constitutional writ.  My concern is more with the redactions that are sought to be made despite that information being available in the constitutional writ.

MS DAVIDSON:   I apologise.  Yes, I put that incorrectly, your Honour.

HIS HONOUR:   I see.

MS DAVIDSON:   Your Honour had suggested that you were concerned as to inconsistencies ‑ ‑ ‑

HIS HONOUR:   Yes.

MS DAVIDSON:   ‑ ‑ ‑ in respect of paragraph 8, but were there additional paragraphs that your Honour’s concern also extended to?

HIS HONOUR:   To the extent that you seek to redact information concerning locations or postings, paragraphs 9 and 10 seem to be addressing those as well, although I take it your position in relation to those is they are historical postings and not matters that need to be redacted in other material?

MS DAVIDSON:   Well, to the extent that they had been sought to be redacted, it was in conjunction with more specific information, but I certainly will turn my attention to the question of whether there is any inconsistency between what is sought in the redactions to Mr Wyatt’s affidavit and what has not been sought in respect of the application for a constitutional writ.

HIS HONOUR:   Yes.  It would certainly be very, very unusual to redact the application for a constitutional writ itself.

MS DAVIDSON:   Yes.

HIS HONOUR:   All right. Unless there is anything further that you want to raise about the summons, what I will do is I will make orders to the effect of an interim order under section 77RH(1) of the Judiciary Act that the plaintiff in this proceedings be referred to as “Pte R” ‑ ‑ ‑

MR JONES:   Sorry, your Honour – terribly sorry to interrupt.

HIS HONOUR:   Yes.

MR JONES:   Just as a matter of convenience and, perhaps accuracy, “Pte” is obviously an abbreviation of “Private”.  I note that the first defendant is referred to by his full rank.  It is just a matter of – it is a clerical matter – but whether it might, just to be consistent – we have no objection and I understand the Commonwealth has none – to refer to him as “Private” in the full ‑ ‑ ‑

HIS HONOUR:   All right – that he be referred to as “Private R” and that – Ms Davidson, I take it that the interim order you seek is an interim order in terms of paragraph 2 of the summons that in the interim, prior to 4 March 2020, there be no disclosure, by publication or otherwise, of information that identifies, or tends to identify, in connection with this proceeding, the plaintiff or the complainant.

MS DAVIDSON:   Yes, and auxiliary to that, and further to the point your Honour has just made, I think that perhaps I should seek such an interim order applicable to the application, because that is the only document – the affidavit of Mr Wyatt that is sought to be redacted has not been read and thus is not on the Court file.  But the application itself is, as I understand it, and whilst that is not – redactions have not presently been sought in respect of that, the paragraphs to which your Honour has drawn attention, at least paragraph 8, there is potentially a difficulty in respect of the inconsistency of the approach that has been taken, for which I am grateful to your Honour for drawing my attention.

HIS HONOUR:   You seek an interim order that no person be permitted to inspect the application for a constitutional writ at all?

MS DAVIDSON:   Well, your Honour, it is difficult to think how it could be framed alternatively in circumstances where we do not have – I am not presently able to provide your Honour with a redacted copy.  We could supply the Registry with a redacted copy today that would merely make redactions in respect of the location that is referred to, that is the location of the hotel or the particular name of the hotel.  I do not think there is any dispute about availability of the fact that it was in Queensland.

HIS HONOUR:   What does the hotel really do?  I mean these would be questions that I would effectively be asking you on Tuesday anyway.

MS DAVIDSON:   Yes.

HIS HONOUR:   One can understand the affidavit material that you filed about identity and job description, but the name or location of a hotel – it is very difficult to see how that could have any relationship between identity and job description.

MS DAVIDSON:   The concern goes to the fact that there were a large number of, as I understand it, service members present at the party that occurred prior to the incident at the hotel and that knowledge of those persons, which would be potentially able to be discerned, may lead to the capacity to identify the plaintiff or complainant from knowledge of the hotel.  I accept that there are a number of links in that chain, your Honour, and the concern in respect of the hotel is obviously unable to be expressed in precisely the same manner as Brigadier Kenny, for example, had expressed concern in relation to particular names or identifying service information.

HIS HONOUR:   So would you be proposing to file an amended – or a redacted application for a constitutional writ, in other words, a redacted version of the plaintiff’s application for a constitutional writ that effectively just redacted the six words in the third line of paragraph 8?

MS DAVIDSON:   It would only need to be five words, your Honour.  The State has not been included in the redactions.

HIS HONOUR:   I see, yes - just the words beginning with “The”?

MS DAVIDSON:   Yes.

HIS HONOUR:   Yes, all right.

MS DAVIDSON:   That could be done today, your Honour.

HIS HONOUR:   Yes.  On that basis I will extend the order for interim non‑publication to prohibit inspection of the application for a constitutional or other writ on the basis the Commonwealth will file a redacted application for a constitutional or other writ which redacts those five words.

MS DAVIDSON:   I am grateful, your Honour.

HIS HONOUR:   Of course, Mr Jones, I take it that you are ad idem with the Commonwealth in relation to the summons but if there is anything that you want to say I would certainly be happy to hear it.

MR JONES:   No, thank you.  No, your Honour is quite correct.  We consent to that course.

HIS HONOUR:   I will make those orders and list the summons for hearing on 3 March at 10.15 am.  The Deputy Registrar will give notice to news publishers that wish to appear on that occasion today.

MS DAVIDSON:   Your Honour, might I seek leave for that listing to be by video link, as today’s has been.

HIS HONOUR:   Yes, certainly.

MS DAVIDSON:   And, therefore, that it would be 11.15 in Sydney.  Would that be ‑ ‑ ‑

HIS HONOUR:   Yes, 11.15 am Sydney time.  Thank you, Ms Davidson.

MS DAVIDSON:   I am very grateful, your Honour.

HIS HONOUR:   The orders are:

1.Pursuant to section 77RH(1) of the Judiciary Act 1903, until 4 March 2020, the plaintiff in this proceeding be referred to (including in the title of this proceeding) as “Private R”.

2.Pursuant to section 77RH(1) of the Judiciary Act 1903, until 4 March 2020, there is to be no disclosure, by publication or otherwise, of information that identifies, or tends to identify, in connection with this proceeding:

(a)the plaintiff; or

(b)the complainant.

3.Pursuant to section 77RH(1) of the Judiciary Act 1903, until 4 March 2020, no person shall be permitted to inspect or copy the application for a constitutional or other writ filed by the plaintiff on 13 September 2019.

The Court will adjourn.

AT 10.47 AM THE MATTER WAS ADJOURNED