R v Khazaal

[2011] HCATrans 263

[2011] HCATrans 263

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S236 of 2011

B e t w e e n -

THE QUEEN

Applicant

and

BELAL SAADALLAH KHAZAAL

Respondent

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 21 SEPTEMBER 2011, AT 9.26 AM

Copyright in the High Court of Australia

MR P.W. NEIL, SC:   May it please, your Honour, I appear for the applicant with my learned friend, MS S.G. CALLAN.  (instructed by Commonwealth Director of Public Prosecutions)

MR C.C. WATERSTREET:   I appear for the respondent.  (instructed by Lawyers Corp Pty Limited)

MS K.A. STERN:   May it please, your Honour, I appear for the Attorney‑General for the Commonwealth in this application.  (instructed by Australian Government Solicitor)

MS STERN:   Your Honour, I seek to move on a summons for directions that was filed with the Court on 16 September 2011.

HIS HONOUR:   Yes.

MS STERN:   Before I go any further, I wonder if I might be able to deal with the question of documents to just check that your Honour ‑ ‑ ‑

HIS HONOUR:   No.  Before we go any further, we are going to work out what this special leave application is all about and I guess that is really Mr Neil’s bailiwick, is it not?

MR NEIL:   It is, perhaps, your Honour.

HIS HONOUR:   Now, I have the application for special leave filed on 6 July and a draft notice of appeal filed on the 20th.  Justice Bell gave some directions, did she not?

MR NEIL:   She did, your Honour.

HIS HONOUR:   They would call for the application book to be filed this Friday, is it?

MR NEIL:   28 September.

HIS HONOUR:   That is next week.

MR NEIL:   Yes.  This Friday is the day by which we are to file our submissions in reply to the respondent to the application.

HIS HONOUR:   Right.  So the book would be filed by the 28th which is next Wednesday.

MR NEIL:   Yes, your Honour.

HIS HONOUR:   That is pretty close to the leave hearing which is on Friday, 7 October.

MR NEIL:   That is so.  Her Honour agreed to the times.

HIS HONOUR:   Yes, I remember that.  I have seen that.  Now, can I just look at the draft notice of appeal or perhaps at the application.  It all seems to turn on ground 4, does it not, what the Court of Criminal Appeal did with respect to ground 4?

MR NEIL:   Indeed, your Honour.

HIS HONOUR:   Now, we have the Court of Criminal Appeal’s reasons.  Do you have them there?

MR NEIL:   Well, we do, your Honour. 

HIS HONOUR:   You have a good junior.

MR NEIL:   Indeed, most fortunate.

HIS HONOUR:   The Chief Judge dissented.  That is right, is it not?

MR NEIL:   That is so.

HIS HONOUR:   His treatment starts at paragraph 106, I think, and continues with the appellant and the Crown, then the determination at 125.  That, however, was the minority view and Justice Hall starts to deal with ground 4, I think, at paragraph 375.

MR NEIL:   Yes, your Honour.

HIS HONOUR:   He refers to the trial judge’s ruling, or the judgment that she gave, and he deals with her reasons.  Then, at paragraph 388 – this is what I wanted to get to – Justice Hall sets out the particular factual matters in the evidence said to have been to discharge the evidential burden with respect to 101.5(5) and then that is detailed in 13 points really, I think.

MR NEIL:   That is so.

HIS HONOUR:   The other member of the majority, Justice McCallum, was of the same view as to ground 4.  Her treatment starts at 468.  At 483 she refers to “the evidence pointed to by the appellant if that suggested”, et cetera.

MR NEIL:   Yes.

HIS HONOUR:   I think that is a reference back to 388 and 390 that we have just looked at, I would say.

MR NEIL:   It is.  If your Honour looks at 481, her Honour referred to the material being summarised by Justice Hall.

HIS HONOUR:   Yes, thank you.  That is right.  Now, to determine your points in getting special leave, what is detailed there is enough, is it not, for you?  Why would you need to go any further into the primary evidentiary material, as it were?  The question is what did the Court of Appeal act on and that is what they say they acted on.

MR NEIL:   That is so.

HIS HONOUR:   That does not seem to be material that would not – well, their reasons are there.  They are not ‑ ‑ ‑

MR NEIL:   Yes.  We do not take issue that their Honours in the majority identified what their Honours held was material having the capacity to engage the defence.  Our primary argument is that it lacks that capacity and when looked at appropriately there was no evidence capable of engaging the defence.

HIS HONOUR:   The best they could make of it against you, as it were, is what they have referred to.

MR NEIL:   That is so.

HIS HONOUR:   Their reasons will stand or fall at the level of special leave by just looking at that, will they not?

MR NEIL:   Your Honour, I would not put a contrary submission.  Others may have a different view, but ‑ ‑ ‑

HIS HONOUR:   Otherwise you might talk yourself out of special leave.

MR NEIL:   That is so.

HIS HONOUR:   Yes, all right.

MR NEIL:   We have embraced the reasons set out as being the material.

HIS HONOUR:   That is what I am trying to say.

MR NEIL:   The foundation of the decision of the majority.

HIS HONOUR:   Yes, and if that is impaired for legal reasons on construction of the statute ‑ ‑ ‑

MR NEIL:   Yes, we are in trouble.

HIS HONOUR:   You are in front.  Now, it may be that if we granted special leave – I am not sure about this either – there may then be some need for some special orders as to the contents of that appeal book, but I am not sure about – that could be looked at by the Full Court when deciding whether or not to grant special leave, I would think.

MR NEIL:   No doubt.

HIS HONOUR:   Yes.

MR NEIL:   Can I say, however, that our present assessment on our side is that on the hearing of the special leave application, for our part it is most unlikely that we would want to refer to any secret material.  We would think also if special leave is granted upon the hearing of the appeal.  That is why we have indicated in a letter to our colleagues that we have no opposition to the directions sought now or later if appropriate.

HIS HONOUR:   Yes.  It seems to me that the application book should be of the ordinary description, namely the indictment, the relevant ruling of the trial judge, appeal to the Court of Appeal, their reasons, special leave application, grounds, submissions and that would be it.

MR NEIL:   That would ordinarily be the case.  There may be a question whether any of the argument by a party – and I doubt it would be ours – would want to go behind, for instance, the 13 points that Justice Hall spelled out in some detail to look at any underlying material, a bit of which might fall into the secret category.

HIS HONOUR:   The Court of Appeal did not do it and that is the record.

MR NEIL:   That is so.  I gather the application is as a matter of precaution because of sensitivity of some of the material.

HIS HONOUR:   Yes, but if the application book does not contain any of it, it is no problem.

MR NEIL:   Certainly not for the special leave application and I doubt for the appeal if leave is granted.

HIS HONOUR:   I do, too, but that can be looked at later if need be.

MR NEIL:   Indeed.

HIS HONOUR:   All right.  Anything you want to say, Mr Waterstreet?

MR WATERSTREET:   On this application?

HIS HONOUR:   Yes.

MR WATERSTREET:   Not on this application.  We do not have anything to say on this application.

HIS HONOUR:   All right.  Now, you have heard what has been said, Ms Stern.

MS STERN:   Your Honour, yes.  If there is none of the – and I use the term “national security information” because that is what has been used in the affidavits – if there is none of the national security information in the application book, then our summons really falls away.

HIS HONOUR:   What I would propose to do would be to stand your summons over to the special leave day and, if special leave were granted, it may have then to be looked at again.

MS STERN:   Your Honour, that may be right, but the summons relates very specifically to the application book.

HIS HONOUR:   I know it does, yes.

MS STERN:   So if it were at that stage it may be that the summons may need to be ‑ ‑ ‑

HIS HONOUR:   You could amend it.

MS STERN:   ‑ ‑ ‑ amended and, your Honour, at that stage there may also be statutory authority for any orders and that may simplify matters if it is necessary.

HIS HONOUR:   Yes, right.  Let me just look at the summons.  What I would propose to do this morning is to stand over the summons for directions filed 16 September to the hearing of the special leave application on 7 October and if you need to revive it on that day you can seek to amend it and so on.

MS STERN:   I am grateful, your Honour.  The only thing – could I just clarify that that is on the premise that the application book will not include any of the confidential material.

HIS HONOUR:   That is right.  I am just going to say that the application book, which is to be filed on or before 28 September, will have the usual contents as required by the Rules which would not include any of the evidentiary material that is the subject of the summons filed on 16 September.

MR NEIL:   Your Honour, may I – I am sorry – just draw attention to one matter in the case that is significant at the moment.  It arises from the reasons of Justice Hall at paragraph 388 in his Honour’s points 7 and 12 on pages 124 and 125.

HIS HONOUR:   Yes, says “refers to internet chats”.

MR NEIL:   Yes.  Those words, your Honour, have been redacted and I would ask that your Honour’s reference to them now be redacted from today’s transcript.  But in 7, your Honour sees ‑ ‑ ‑

HIS HONOUR:   Are you sure they have been redacted?  Your solicitor is getting agitated.

MR NEIL:   I believe they have, your Honour.

MS STERN:   Your Honour, I might be able to assist.  I do not believe they have been redacted.  They may have been talked about ‑ ‑ ‑

MR NEIL:   My friend is correct.

HIS HONOUR:   Say that again.

MS STERN:   No, there has been no redaction from this judgment.

HIS HONOUR:   Yes.

MR NEIL:   I am sorry.  I understand, however, that hearing of any application or beyond, at least for our part we will not be using that expression aloud.

HIS HONOUR:   That material, yes.

MR NEIL:   But, your Honour, the point is your Honour sees in 7 how his Honour referred to that material of supporting an inference concerning the compilation, et cetera, of the book.  In 12 there is a similar type of ‑ ‑ ‑

HIS HONOUR:   Likewise in 12, yes. 

MR NEIL:   Yes.

HIS HONOUR:   If special leave were granted, 7 and 12 might throw up a point for the appeal book, I suspect.

MR NEIL:   Perhaps then.

HIS HONOUR:   I do not know.

MR NEIL:   I do not think it is going to be – probably not, but I doubt it would be necessary for the special leave application.

HIS HONOUR:   But I do not think it throws up a point for the application book.

MR NEIL:   Yes, I am merely drawing to attention, may it please, your Honour.

HIS HONOUR:   All right then.  So the summons is stood over as indicated and the application book with the contents as indicated will be filed on or before the date indicated in Justice Bell’s directions, which is 28 September.  Is there anything else.

MS STERN:   Your Honour, I wonder if I might just ask if I could have the secret affidavit back.

HIS HONOUR:   Yes, very happily.  The Registrar will give it to you.  I will now adjourn.

AT 9.41 AM THE MATTER WAS ADJOURNED