R v LK; R v RK

[2009] HCATrans 283

[2009] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S162 of 2009

B e t w e e n -

THE QUEEN

Appellant

and

LK

Respondent

Office of the Registry
  Sydney  No S163 of 2009

B e t w e e n -

THE QUEEN

Appellant

and

RK

Respondent

Directions hearing

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 27 OCTOBER 2009, AT 9.34 AM

Copyright in the High Court of Australia

__________________

MR T.A. GAME, SC:   If your Honour please, I appear for the appellants in both matters.  (instructed by Commonwealth Director of Public Prosecutions)

MR J.S. STRATTON, SC:   May it please the Court, I appear for the respondent, LK.  (instructed by Hanby & Associates)

MR T.E.F. HUGHES, QC:   May it please, your Honour, I appear with MR M.R. GRACIE for the respondent, RK.  (instructed by Mee Ling Solicitors)

HIS HONOUR:   Yes.

MR HUGHES:   There is a summons before the Court, curiously enough, returnable in Canberra on a date in November, but can your Honour treat that, if your Honour pleases, as being the operative interlocutory document for today.  It is a summons to enlarge time for filing a notice of contention.

HIS HONOUR:   Should I see what the Solicitor is here for.

MR HUGHES:   I am so sorry.

MR S.J. GAGELER, SC, (Solicitor‑General for the Commonwealth of Australia):   In the matter of RK, your Honour will have seen a foreshadowed 78B notice and I am here, with your Honour’s leave, in relation to timetabling issues only.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, thank you.

MR HUGHES:   May I hand up to your Honour a proposed notice of contention, which we seek leave to file out of time. 

HIS HONOUR:   Thank you.

MR HUGHES:   The application is made under rule 4.02, your Honour.  There is an affidavit supporting this application, but as I understand the position, the application is not controversial.

HIS HONOUR:   Thank you.  Is that so, Mr Game.

MR GAME:   That is correct, your Honour.

HIS HONOUR:   In your appeal, Mr Stratton, you do not have such a procedure, do you?

MR STRATTON:   We did not, your Honour, but having just discussed ‑ ‑ ‑

HIS HONOUR:   I am not inviting you to, I just wanted to know.

MR STRATTON:   Your Honour, someone else…..  Your Honour, having discussed it with my learned friend, Mr Hughes, it would be our intention to file, with your Honour’s leave, a notice of contention in the same terms.

HIS HONOUR:   Very well.  Thank you.  Would there be any opposition to that, Mr Game?

MR GAME:   No, your Honour.

HIS HONOUR:   It seems sensible.  At the moment, the grant of special leave is limited to section 11.5.

MR HUGHES:   Yes, your Honour.  However, in the course of the special leave hearing, Mr Reynolds then appearing for the respondent, RK, flagged an intent ‑ ‑ ‑

HIS HONOUR:   Yes, I remember that.

MR HUGHES:   A notice of contention before the Court of Criminal Appeal raised four points.  We are discarding two.

HIS HONOUR:   Yes.  Where is the notice in the Court of Appeal?  I was looking for it.

MR HUGHES:   It is in the joint appeal book.

HIS HONOUR:   Yes, it is.

MR HUGHES:   In the Court of Criminal Appeal the notice of contention raised a sort of Kable point and a Durham Holdings point.

HIS HONOUR:   Yes, that is right.

MR HUGHES:   Those two points are out.

HIS HONOUR:   Yes, thank you, Mr Hughes. 

MR HUGHES:   When it is convenient to your Honour I can propose an agreed timetable.

HIS HONOUR:   Yes.  Has the Solicitor seen this?

MR GAGELER:   Yes, your Honour.

MR HUGHES:   I can also hand up to your Honour, if it would help, a notice of a constitutional matter ‑ ‑ ‑

HIS HONOUR:   Yes, the 78B notice.

MR HUGHES:   Which we propose to serve electronically today on the several Attorneys.  My learned friend, the Solicitor for the Commonwealth, has a copy of the notice of constitutional matter which I was able to give him yesterday.

HIS HONOUR:   Do you have the timetable?

MR HUGHES:   Yes.  It is the timetable on the first half of the page that we propose. 

HIS HONOUR:   Thank you.

MR HUGHES:   We would seek to add to that timetable a direction that we serve the 78B notice electronically today.  Your Honour was asking earlier where to find the 78B notice filed in the Court of Criminal Appeal.  It is at page 217 of the joint appeal book.

HIS HONOUR:   Thank you.

In each matter:

1.Leave is granted to the respondent to file and serve a notice of contention in the form which in the appeal in RK has been initialled and signed by me and placed with the papers.

2.Notice under section 78B of the Judiciary Act 1903 (Cth) is to be served today and service by electronic means will suffice for that purpose.

3.The appellant’s submissions with respect to the notice of contention –

Let us just stop there for a minute.

MR GAME:   Your Honour, we should file our submissions first on the main appeal by 9 November and then the other things can fall into ‑ ‑ ‑

HIS HONOUR:   The respondents’ submissions on the notice of contention will be caught up on the 16th, would they not?

MR GAME:   That is fine by us, your Honour.

HIS HONOUR:   Then:

3.The appellant’s submissions to be filed on or before 9 November 2009; the respondents’ submissions, including submissions on the notice of contention points to be filed on or before 16 November 2009; the appellant’s reply filed on or before 23 November 2009; any submissions from interveners to be filed on or before 23 November 2009 and submissions, if any, in response to the interveners’ submissions to be filed on or before 26 November 2009 and the appeal, as indicated, is listed for 1 and 2 December 2009.

Now, with respect to ground 2 in the draft notice of contention, some attention had better be given in submissions to the position as established, if at all, under the equivalent provisions of the United States Constitution with respect to jury trials.  All right, is there anything else, gentlemen?  Are those orders clear?

I will now adjourn.

AT 9.47 AM THE MATTER WAS ADJOURNED