Private R v Cowen & Anor

This proceeding involves Brigadier Michael Cowen (the plaintiff) and the Commonwealth of Australia (the defendant) before the High Court of Australia. The dispute centres on the plaintiff's objections to the inclusion of certain paragraphs and annexures in a draft statement of agreed facts. These objections relate to the factual substratum of the case, which the plaintiff contends is relevant to the Court's determination of constitutional questions concerning section 51(vi) of the Constitution.

The primary legal issue before the Court was whether the proposed statement of agreed facts, particularly paragraph 3 and its annexures, should be admitted. The plaintiff initially raised objections based on factual disputes and relevance, but these were clarified during the hearing. The Court was required to consider the appropriate approach to establishing the factual basis for constitutional arguments, especially in areas of potentially developing jurisprudence, and whether a remitter to a lower court was warranted due to disagreements over the factual substratum.

The Court's reasoning focused on the principle that potentially relevant facts should be included in a statement of agreed facts to assist in developing constitutional jurisprudence, rather than strictly adhering to a test of actual relevance. The plaintiff's counsel eventually conceded that the existence of the complainant's statement and the prosecution's summary of agreed facts were not in dispute, and that objections were primarily based on the content of those documents and potential prejudice. The Commonwealth indicated no difficulty in including a prefatory statement clarifying that agreement on the existence of these documents did not equate to agreement on their underlying facts.

The Court indicated that if a statement of agreed facts could be resolved, it would consider programming a hearing for June. Separately, the Court addressed a summons, noting the requirement under section 77RG(2)(d) of the Judiciary Act for news publishers to be given notice and an opportunity to be heard. The Court proposed directing the Registrar to give notice to news publishers and to list the summons for hearing on 3 March, with a potential interim order for a pseudonym to be made. The scope of proposed redactions, concerning the identity and job descriptions of the plaintiff and complainant, was also raised for further consideration.