R v Collaery (No 2)
[2019] ACTSC 296
•17 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Collaery (No 2) |
Citation: | [2019] ACTSC 296 |
Hearing Date: | 17 October 2019 |
DecisionDate: | 17 October 2019 |
Before: | Mossop J |
Decision: | The Application dated 2 October 2019 is dismissed |
Catchwords: | PRACTICE AND PROCEDURE – AMICUS CURIAE – application for leave to be heard as amicus curiae – application refused |
Legislation Cited: | Judiciary Act 1903 (Cth), s 78B National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 26, 27 |
Cases Cited: | Cheatle v The Queen (1993) 177 CLR 541 Hua Wang Bank Berhad v Commissioner of Taxation [2013] FCAFC 28; 296 ALR 479 Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 |
Parties: | The Queen (Crown) Bernard Collaery (Accused) Ernst Willheim (Applicant) |
Representation: | Counsel No appearance (Crown) K Archer (Accused) E Willheim (In person) T Begbie (Attorney-General (Cth)) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Gilbert + Tobin (Accused) Self-represented (Applicant) Australian Government Solicitor (Attorney-General (Cth)) | |
File Number: | SCC 195 of 2019 |
MOSSOP J:
In criminal proceedings brought against the accused, Bernard Collaery, the Commonwealth Attorney‑General has issued a certificate under s 26 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act). A timetable is in place in relation to preparation for a hearing under s 27(3) of the NSI Act which is listed to commence in early December 2019. By an Application in Proceeding dated 2 October 2019, Ernst Willheim has sought leave to make submissions as amicus curiae in these proceedings. In his Application in Proceeding he identified that he sought to make submissions directed to the following matters:
(a)the importance of the principles of open justice to the hearing of this matter; and
(b)the considerations to which the court should have regard in relation to assertions of harm to national security.
The submissions that he sought to make on these topics should he be granted leave were annexed to his application.
At the hearing of the application on 17 October 2019 he indicated that, in addition, he would seek to make submissions to the effect that if the orders sought by the Attorney‑General under the NSI Act would, in substance, require a closed court and a secret trial to which ordinary members of the public would not be admitted, then that would be inconsistent with s 80 of the Constitution. That was because a trial in such circumstances would not have the essential features of a jury trial. He indicated that this particular submission would be developed by reference to Cheatle v The Queen (1993) 177 CLR 541 and Russell v Russell (1976) 134 CLR 495. He indicated that his ultimate submission would be that the court should require the giving of notice under s 78B of the Judiciary Act 1903 (Cth) so that the point could be argued by the parties.
The fundamental point concerning the involvement of an amicus curiae is that permission to participate in that manner is entirely in the court’s discretion. How that discretion is exercised will be determined by the particular circumstances of the case in light of the demands of the administration of justice. Any assessment of the demands of the administration of justice must recognise that, even in cases involving significant public law issues or issues of public interest, the exercise of judicial power is focused on the resolution of the issues between the parties and hence, generally speaking, it is the parties that must define the issues and provide appropriate submissions and assistance to the court.
The authorities to which I was referred merely provide examples of the exercise of discretion to grant or not grant a person leave to appear as an amicus curiae in particular cases. They do not provide any fixed principles which confine the discretion of the court to permit or deny participation by an amicus curiae. Rather, they reflect the matters which courts have considered to be relevant in the exercise of discretion and hence are useful in identifying matters which will often be of significance for the proper exercise of discretion.
Any authority addressing an application for leave to be heard as amicus must be read in the light of not only the particular circumstances of the case, but also the nature of the court which is dealing with the issue. There are quite clearly specific considerations relevant to the High Court as the court of final appeal for the whole of Australia which may influence discretionary decisions about hearing amici which are not present or relevant for intermediate courts of appeal or trial courts.
The function and role of an amicus curiae is usefully summarised in Hua Wang Bank Berhad v Commissioner of Taxation [2013] FCAFC 28; 296 ALR 479 at [49].
The Rules do not make express provision in relation to an amicus curiae. Instead, it is an incident of this Court’s exercise of judicial power that, it may, as a matter of discretion, afford a hearing to a legal practitioner, usually counsel, who has offered to assist the Court as to the law, practice or procedure governing the particular proceeding before the Court. The end to which that practitioner’s appearance is directed is not partisan but rather the interests of justice in the deciding of a proceeding according to law, from whence is derived the term applicable to such a practitioner, an amicus curiae, a friend of the court. Even though that practitioner may, on occasion, have been retained on the instructions of a person who has an interest in some aspect of the litigation to extend that offer to the Court, that person neither thereby becomes a party to the litigation if the Court decides to hear that practitioner nor does the role which that practitioner may permissibly discharge as an amicus change to a partisan one.
The position is the same in this court in that the Court Procedures Rules 2006 (ACT) do not make express provision in relation to amicus curiae.
The reasons of Brennan CJ in Levy v Victoria (1997) 189 CLR 579 (Levy) at 604‑605 emphasise that the hearing of an amicus curiae is entirely in the court’s discretion and that it is not possible to identify in advance situations in which the court will be assisted by submissions. Rather an amicus will be heard when the court is of the opinion that “it will be significantly assisted thereby”, provided that the cost and delay to the parties “is not disproportionate to the assistance that is expected”. Kirby J at 650-651 propounded, in relation to the High Court, a broader view of the utility of hearing amici curiae having regard to its role as the final court of appeal for Australia.
In Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; 248 CLR 37, the High Court made clear that the threshold for granting leave to intervene in proceedings, that the non‑party’s interests be directly affected by the decision, did not apply in relation to leave for a person to be heard as amicus curiae. However the court repeated (at [4]) what Brennan J had said in Levy, that the court would need to be satisfied that it will be significantly assisted by the submissions of the amicus and that any costs to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the expected assistance. The court also identified (at [6]) that in cases where the parties were large organisations represented by experienced lawyers, applications to make submissions as amicus curiae should seldom be necessary or appropriate and it would ordinarily be expected that the applicant would identify with some particularity what it is that the applicant seeks to add to the argument that the parties will advance.
An application by Professor Kim Rubenstein and Mr Willheim to be heard as an amici curiae was refused in Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 at 312-314. A majority of the court was of the opinion that leave should be refused. French CJ, delivering the reasons of the majority, identified that the submissions were not likely to be of any assistance. His Honour identified that the court may be assisted by submissions of an amicus on a particular matter where:
(a)it is not in the interests of the parties to present argument on particular matters; or
(b)one of the parties lacks the resources to present full argument on that issue.
A further basis for refusing the application in that case appears to have been a proposal to put before the court “a large amount of material, supported by what is little more than an assertion about its utility”.
Kirby J (with whom Crennan J agreed) favoured reserving the question of whether the submissions of the amici curiae should be received. In his reasons Kirby J noted that the written submissions were publicly available in any event and the court was on notice of them.
A situation in which an amicus may be of very substantial assistance is where there is no sufficient contradictor to ensure that all relevant arguments are presented. An example of such a case appears to be Re Canavan [2017] HCA 45; 263 CLR 284 at [7].
In the present case, the Attorney-General opposed the grant of leave to hear Mr Willheim as amicus. The Commonwealth Director of Public Prosecutions took a neutral approach. Counsel for the accused indicated that his client did not oppose the grant of leave, but recognised that this was a discretionary matter for the court.
In the present case, the Commonwealth Director of Public Prosecutions and the Attorney‑General are both model litigants. As such, they would be obliged to articulate in their submissions the relevant principles for the court to apply. The accused is represented by senior and junior counsel who clearly have the capacity, to put submissions about the desirability of proceedings occurring in public (to the extent that is consistent with their instructions). The accused certainly fulfils the function of a contradictor to the contentions of the Attorney-General.
Mr Willheim submitted that there may be issues in relation to which the accused does not seek to put submissions that would reflect the interests of the general public in the public conduct of the proceedings. I accept that there is a possibility that that may be the case, although it is not possible to determine whether that is the case prior to the filing of submissions for the purposes of the s 27(3) hearing.
Insofar as the submissions addressed the fundamental importance of openness in the exercise of judicial power, they are unlikely to go beyond the issues that will be agitated by the parties. Insofar as the submissions address how the court should address national security considerations, they are obviously limited by the fact that they largely involve speculation about the content of the non‑disclosure certificate signed by the Attorney‑General under s 26 of the NSI Act and the implications of disclosure. These matters are factual matters which are likely to be addressed in detail by the parties who have access to not only the s 26 certificate, but also the evidence relied upon by the Attorney-General which is said to support the making of orders consistent with that s 26 certificate. Given that Mr Willheim does not have access to that material it is more difficult to reach the conclusion that his submissions will be of substantial assistance to the court.
So far as Mr Willheim sought to raise a constitutional issue not raised by the parties, I do not consider that it would be appropriate in this case to give leave so as to permit him to do so. The proceedings, subject to the operation of the NSI Act, remain accusatorial and of an adversarial nature. In those circumstances it appears to me to be appropriate to leave it to the parties to determine the matters in contest.
It is sufficient to say that in the present case I was not satisfied that I would be substantially assisted by permitting Mr Willheim to be heard as amicus for the purposes of the s 27 hearing. I did not consider it appropriate to reserve the question until the scope of the submissions provided by the parties could be analysed in detail. I considered that if there was some failure on the part of the parties to address an issue of significance, then it would clearly be open to the court to direct further submissions to address any such inadequacy.
It is for those reasons that this morning I made an order dismissing the application.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 29 October 2019 |
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