R v Nona; Nona v The Queen

[2014] HCATrans 44

[2014] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C18 of 2013

B e t w e e n -

THE QUEEN

Applicant

and

DENNIS MICHAEL NONA

Respondent

Office of the Registry
  No C19 of 2013

B e t w e e n -

DENNIS MICHAEL NONA

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 MARCH 2014, AT 9.31 AM

Copyright in the High Court of Australia

____________________

MR J. WHITE:   If it please the Court, I appear with my learned friend, MS M.A. JONES, for the applicant in C18/2013 and the respondent in C19/2013.  (instructed by Director of Public Prosecutions (ACT))

MR S.L. GILL:   Your Honour, I appear with MR A.L. HOPKINS for Dennis Nona, the respondent in C18/2013 and the applicant in C19/2013.  (instructed by Porters Lawyers)

HAYNE J:   Yes, Mr White.

MR WHITE:   Your Honours, this application raises the extent to which trial judges and appeal courts should concentrate on the real issues at trial.  Trials are increasingly complex.  Trial judges are expected to deal with real issues.  The problem with the majority of judgments in this case is that the matters that were ultimately settled upon were not really issues at trial or even on appeal.  Further, there was no finding in respect of those matters that they actually constituted miscarriages of justice and no reasoning which would justify such a conclusion.

HAYNE J:   But in the end, Mr White, is this not an application where the prosecution would invite us to conduct a “no substantial miscarriage of justice” inquiry?

MR WHITE:   No, your Honours.

HAYNE J:   No?

MR WHITE:   We say that your Honours can deal with the matter by recording the fact that the Court of Appeal did not properly establish that the matters that they relied on, or purported to rely on, were in fact miscarriages of justice.  This is a case where they did not, in fact, identify the matters that they relied upon as being miscarriages of justice.  Now, if your Honours took that view, your Honours could dismiss the appeal – could uphold the appeal and reinstate the verdict of the jury.  If your Honours took the view that there were deficiencies in the way that the Court of Appeal dealt with the matter that should be corrected by the Court of Appeal, your Honours could send the matter back to the Court of Appeal.  So, your Honours, let me go directly to the ultimate conclusion of each of the majority judges.

HAYNE J:   But, as it stands, this man is going back for retrial?

MR WHITE:   As it stands he is, subject to the other application, your Honour.

HAYNE J:   I understand that.

MR WHITE:   Yes.

HAYNE J:   At the end of the day, what is it that you would have us say?  Is it anything more complicated than there is a miscarriage of justice as distinct from a substantial miscarriage of justice, there is a miscarriage of justice if there is a departure from trial according to law.

MR WHITE:   No, your Honour.  We would have your Honours say that there is no miscarriage of justice that has been made good in this case and, accordingly, the Court of Appeal should not have interfered with the verdict of the jury.  Your Honours, if I take your Honours to the conclusions that were expressed by the two majority judges. 

BELL J:   Just before you do that, can I make this inquiry?

MR WHITE:   Yes, your Honour.

BELL J:   Your second ground is a complaint respecting the application of the proviso.  Was that matter live in the conduct of the appeal?

MR WHITE:   It was live in the conduct of the appeal, yes, in the sense that although hardly other than peripheral to the way the appeal was argued the issue of whether the proviso would be relied upon was raised and the Crown acknowledged that it would if it needed to wish to rely on the proviso.  There was nothing more than that, your Honour.

BELL J:   Yes.

MR WHITE:   Your Honours, Justice Penfold’s - at application book 110, paragraph 72 - ultimate conclusion was:

I would uphold the appeal against conviction because of the gaps in the directions to the jury in relation to opportunity, complaint evidence and the claim of sexual intercourse while the appellant was asleep or intoxicated.

Now, your Honours, that, in our respectful submission, is not a finding that those matters, either jointly or severally, amounted to miscarriages of justice.  They are simply gaps in the direction.  Her Honour did not direct herself ‑ ‑ ‑

HAYNE J:   In what sense are you using the phrase “miscarriage of justice”?

MR WHITE:   In the Mraz sense, your Honour, that the accused did not lose a chance of acquittal that was fairly open to him.

HAYNE J:   Well, that is a proviso question, and that is a question about substantial miscarriage of justice as distinct from miscarriage.  Miscarriage is departure from trial according to law, is it not?

MR WHITE:   Well, in our submission, there was no focusing by either of the judges in the majority on the extent to which there had been an interference with the result at trial because of the way in which the judge had dealt with directions.  So, the one thing that can be submitted about miscarriages of justice, your Honour, is that courts are interested in the result of trials, not the procedure of the trial per se, but whether, because of the procedure of the trial, there has been interference with a just result.

BELL J:   Justice Penfold in her conclusion in paragraph 72 refers to three matters.  The first is opportunity - I think earlier she had indicated that, viewed alone, she would not consider the failure to give further directions respecting opportunity was a material matter.

MR WHITE:   Yes.

BELL J:   Next, she refers to the absence of adequate direction concerning complaint and finally to the claim of sexual intercourse while the appellant was asleep or intoxicated.  Now, that is a reference to the trial judge’s asserted failure to direct on voluntariness in circumstances in which, as I understand it, that was not a ground of appeal.

MR WHITE:   It was not a ground of appeal, nor an issue at trial, your Honour.  So another issue that we raise out of this is we submit that the judges below aggregated matters together and added them up to constitute a miscarriage of justice, whereas that was not appropriate.  Now, we appreciate that there may well be cases where, because of a number of things that happened during a trial, the trial process was unfair, but these are three disparate matters, your Honour, and it was wrong, in our submission, for them to be aggregated together when jointly they – when severally they did not amount to a miscarriage of justice and to say that jointly they did.  We do submit that the label of “miscarriage of justice” was not even placed upon them, nor was the ‑ ‑ ‑

BELL J:   Justice Penfold does in fact express a conclusion referable to the proviso, namely that no substantial miscarriage of justice had occurred.

MR WHITE:   Yes.

BELL J:   I suppose one must take that as embracing a finding by her Honour that together the matters did amount to a miscarriage of justice.

MR WHITE:   One assumes so, although that does not cure the defect, if defect it be, of failing to identify the individual matters as miscarriages of justice.  Now, your Honours, in relation to what Justice Dowsett did if I take you to application book 162, his Honour in paragraph 236 in the second sentence:

Nonetheless the failure to put fairly to the jury these three aspects means that the appellant’s trial was not fair.

That, in itself – this is paragraph 236, your Honours – may be a conclusion that jointly the matters amounted to a miscarriage of justice, but it is rather undercut by the next sentence, your Honours, because his Honour says:

I cannot conclude that there has been no miscarriage of justice.

Now, of course, that is a reversal of the onus.  It was for the appellant below, the respondent here, to establish that there had been a miscarriage of justice in the appeal.  His Honour has, by misstating the test, indicated a failure to understand what he was actually doing in finding that there had been a miscarriage of justice because he misunderstood the onus issue.

HAYNE J:   Would the paragraph be open to criticism if the last sentence had read, “I cannot conclude that there has been no substantial miscarriage”?

MR WHITE:   No, that would be a similar conclusion to what Justice Penfold had alluded to.  Then the same criticism that I have just made of Justice Penfold would apply.  But the last sentence would at least be an apparent attempt to invoke the proviso.  There is no apparent attempt to invoke the proviso on what his Honour said.  I should say that the Chief Justice dissenting found no errors which amounted to a miscarriage of justice.

BELL J:   Were the particular matters relied upon by the majority matters that were the subject of an application for redirections at trial?

MR WHITE:   In relation to the issue of voluntariness, no, not at all.  The issue of voluntariness was not an issue at all.  In relation to the other matters – in relation to complaint, the case put by the respondent at the trial was really that the trial judge had not given adequate attention to his case and not adequately placed his case before the jury.  So the complaint about complaint at the trial was not to do with the directions as such, it was really to do with the evidence and what was said to flow from the evidence. 

BELL J:   That is embraced by the approach of Justice Dowsett and his conclusion that the respondent’s case had not fairly been put to the jury.  His Honour identifies the reasons why that is so with some particularity.

MR WHITE:   In relation to complaint not really, your Honour because the difficulty the majority seemed to have with the issue of complaint was that his Honour had not repeated a perfectly good direction he had given in relation to complaint in relation to the second interview.  There were two interviews – both when the complainant J was a child and, in relation to the second interview with police, again the complainant J did not make any complaint about sexual intercourse from the respondent, despite the fact that she had by that stage been pregnant and had an abortion, although I should say the DNA testing was not available at that time.  Nevertheless, she made no complaint in either of those interviews.

So the Court of Appeal said the first direction in relation to complaint in relation to the first interview was impeccable.  It simply should have been repeated in respect of the second interview.  But, your Honours, again, that was not an issue in the trial or on the appeal.  As I say, the interest of the respondent was more that due attention had not been given to the complaint evidence and that was really the complaint about complaint, not so much the direction.

The issue of the failure of the direction was seized upon by their Honours and really when one looks at the conduct of the trial it is difficult to imagine that there could have been the slightest difficulty occasioned to the jury following the complaint evidence, given the very clear directions that were given.

BELL J:   But these are matters of impression, are they not?  The majority in the Court of Appeal considered that in respect of complaint the matter had not been fairly put by reason of the failure to remind the jury of the significance that in the police interview when pressed on the matter no complaint of that character had been made.

MR WHITE:   Yes.  Well, if the complaint direction were repeated in respect of that interview the direction under section 71 of the Evidence (Miscellaneous Provision) Act (ACT), which is the standard direction about the effect of delay and so on, would also have to have been given and, in fact, my learned friend, in his submissions raised that on the basis that the trial judge had argued the prosecution’s case for it when in fact what he is referring to, with respect, was nothing other than the statutory formulation.

So that statutory formulation would have to have been repeated and that is why, in relation to complaint, the conclusions of the individual members of the Court of Appeal were so flawed, in our submission.  So, voluntariness, never an issue at trial, really a matter where the trial judge was really entitled to get down to what the real issues were, the defence case was always that this did not happen.  The suggested involuntary act was untenable, ridiculous.

BELL J:   Attended by some improbability.

MR WHITE:   Your Honour puts it very delicately – and more than that, attended by such improbability that senior defence counsel walked away from it at trial, for no doubt very good forensic reasons.  When it came to addresses that was not a matter that was highlighted, in fact, his Honour did not refer to the evidence in his summing‑up and it was the Crown Prosecutor who prompted him to refer to the evidence. 

So probably by that stage of the trial the issue of that evidence had become more an issue in favour of the Crown than it had in favour of the defence.  So the respondent here, having never raised the issue at trial, never pleaded it as a ground of appeal, now gets a new trial on the basis of a failure of his Honour to direct in relation to that.

Now, that is not an encouragement, in our respectful submission, to judges to conduct trials as real contests identifying real issues and directing juries just so much as they need to in respect of the law.  There was no necessity to go into the issue of voluntariness.  That can be quite a technical issue for juries.  It simply did not arise here.  So this is another instance of this over‑eagerness to pick through matters that were not issues at trial and elevate them into matters that are presumably miscarriages of justice and, again, in relation to that, it is difficult to see how that could be.

Now, the third matter I have not dealt with, your Honours, is the issue of opportunity.  The issue of opportunity was very much contested at the trial in the sense that the respondent asserted, perhaps rather highly, that he lacked the opportunity to commit these offences.  There was a lot of other evidence at the trial that indicated that was not the case.  The fact that the complainant J became pregnant in the circumstances she did also tended to rather undercut that. 

The way that the Court of Appeal dealt with that issue was rather unsatisfactory because both of the learned judges realised that the issue of opportunity was hardly a matter much in favour of the respondent and, accordingly, no redirection had been sought at trial by the respondent about the issue of opportunity.

BELL J:   But again, Mr White, one faces the circumstance that trial counsel had complained respecting the sufficiency with which his client’s case was put, and one finds Justice Dowsett at application book 159, paragraph 229 saying of the opportunity issue, it may not have been strong but the respondent was entitled to have the trial judge put it fairly.  Now, I come back to the proposition that I put to you earlier, these are matters of impression and it is the function of the appellate court to review the whole of the summing‑up and to form a conclusion about that matter.

MR WHITE:   But there is a matter of principle here, your Honour, and that is that the way in which the trial judge dealt with the evidence was simply to recite the evidence, and he conducted the trial on the basis of allowing counsel to make submissions; there were vigorous submissions made on both sides.  His Honour saw his job simply as summing‑up on the law and allowing the facts to speak for themselves, so he alluded generally to the evidence, he did not highlight any issues of evidence.

Both of the judges on appeal in relation to this issue of opportunity said that the case was not strong for the respondent and, indeed, to highlight it might have been disadvantageous to the respondent.  Well, we rhetorically ask, how could it be found in those circumstances that a miscarriage of justice was occasioned?  There has to be something which moves a matter from a mere irregularity at trial to a miscarriage of justice and it could not have been that matter.

As we have submitted, your Honours, the matters individually not amounting to miscarriages of justice, they could not collectively amount to matters being so disparate.  It is not the sort of case where, regarded as a

whole, the matters took on a greater significance or strengthened each other.  They were simply disparate matters that were picked and lumped together.

HAYNE J:   On this question of real issues in the case, the Court has said more than once over the last 20 years that it is the duty of the trial judge to identify the real issues in the case and to tell the juries so much of the law as they need to know to decide those issues.

MR WHITE:   Yes.

HAYNE J:   You can go to, I think, at least two recent decisions where we have assembled in a very large string cite footnote the number of times we have made that point.

MR WHITE:   Courts of appeal, your Honour, have to be brought on board with that.  That is the issue here.

HAYNE J:   Well, it may be that counsel for the respondent in courts of criminal appeal might usefully draw it to attention.

MR WHITE:   Well, certainly, your Honour, but this is an opportunity for this Court to draw it to the attention of this Court of Appeal.  It is really the corollary of what your Honour has just put about the conduct of trials.  If trials are to be conducted in a real way, then courts of appeal cannot pick over the traces in the way that this court, with respect, has.  Thank you, your Honours.

HAYNE J:   Yes, thank you.  We will not trouble you, Mr Gill, in response to this application, but what do you have to say about your application?

MR GILL:   The pivotal question in the applicant’s case is what bounds the concept of trial without unreasonable delay - as set out in section 22(2) of the Human Rights Act - when or what conduct of the State can or cannot be taken into account in meeting that measure, what or when conduct or lack of conduct by the courts or by Executive Government can be taken into account in meeting that question of what constitutes unreasonable delay, specifically here, whether the delay from 30 July 1998 when the first instance warrant was sworn, to 25 March 2009 when the summons was served, whether that delay of 10 and a half years before the summons was served, a delay described by Justice Burns as a consequence of a deliberate decision by police to delay prosecution, whether such a delay is able to be even considered in reckoning the unreasonable delay component of the section 22(2) right to be tried without unreasonable delay.  So the key question is what constitutes unreasonable delay; how is that concept bounded?

BELL J:   You are seeking to develop a case quite different to that which was put before Justice Burns when the stay application was agitated?

MR GILL:   Yes, I am.

BELL J:   Indeed, quite the reverse really.

MR GILL:   It is quite different and it was a case ‑ ‑ ‑

BELL J:   As the respondent points out, with the consequence that this Court would not have the benefit of the consideration of the courts below on this point.

MR GILL:   Not of Justice Burns, in any event, and the Court of Appeal has not dealt with the argument, although the argument was put to the Court of Appeal.

BELL J:   It is not suggested that any prejudice flowed, that is, there was no assertion that in the conduct of the trial the applicant was prejudiced?

MR GILL:   No, we do not put this forward as a Jago stay.

BELL J:   Yes.

MR GILL:   The question, we say ‑ ‑ ‑

HAYNE J:   But there being no unfairness in trial, the trial should nonetheless be permanently stayed?

MR GILL:   Yes.

HAYNE J:   For what reason - to discipline the authorities?

MR GILL:   Potentially.

HAYNE J:   Any other purpose achieved?

MR GILL:   To protect Mr Nona from the trampling on of the right that has been invested in him.

HAYNE J:   Though by hypothesis his trial is not unfair.

MR GILL:   Yes.  Yes, that is correct.  Hence, it turns on the question of what is it that is granted to Mr Nona under the Human Rights Act.  What is the content of the right and what are the effects of that particular right?  That question, in turn, revolves around the reference in section 22(2) of the Human Rights Act, which appears at tab 5 of the authority bundle, to the function of the phrase “anyone charged”.  Your Honours will appreciate that there is a suite of rights that are granted to anyone charged, and amongst those rights is the right to trial without unreasonable delay. 

The question that arises from that is whether that phrase, “anyone charged”, operates as a temporal boundary to the concept of delay, whether it is critical to how delay is reckoned or whether it is the descriptor of a class of persons upon whom the right accrues.  The Court of Appeal treated it as the former and for the applicant, we say, the latter is a better understanding.

If one looks at the provision we say that the key concept within the provision is the term “unreasonable”, that that is the measure that has been put forward by the legislature to assess delay, the delays assessed by and against the concept of unreasonableness or reasonableness.  Use of the term “reasonableness” or “unreasonableness” is well known to the law as a concept by which matters are measured and judged, and that is partially because it is a concept which is flexible in adaptation to the many circumstances it may meet.  It is a concept by which an infinite variety of factual permutations or nuances can be incorporated into the reckoning of the delay and the term allows a principled response to whatever circumstances confront the Court.

So we say that the use of the “unreasonable” term provides an organic and living measure to the concept of the delay and that, we say, is the legislative qualifier of delay.  It is a qualifier that allows all of the circumstances of the delay to be assessed.  It allows the reasons or causes of the delay to be assessed.  It allows the impact of the delay to be assessed, which encompasses questions of prejudice or non‑prejudice which might fall short of a Jago circumstance and it allows the subject matter of the proceedings to be weighed into that mix as well in determining has this delay been unreasonable. 

It is a flexible concept which allows the full gamut of factors that ought to be considered to be considered.  It is a qualifier or content management device that is used elsewhere in the Act.  It is used at the preamble of the Act, which is contained at tab 7 of the authority bundle - at tab 7, item no 6.  So, at tab 7, item no 6 the preamble to the Act notes:

Few rights are absolute.  Human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society.  One individual’s rights may also need to be weighed against another individual’s rights.

That is, it is used there as the qualifier.  It sets the content or the boundary of the rights that are invested in the individual by use of the concept “reasonable”, so again, it is the use of an organic concept to apply the right to particular circumstances.  So there, we say, it is used in the preamble specifically as a boundary concept to understand how far the right goes.  Here, we say, in section 22(2)(c), that is used in a similar fashion. 

The Court of Appeal, however, treated the phrase “anyone charged” as being the boundary concept for reckoning the delay which it would consider, rather than as delineating a class of persons to whom the right accrued.  Treating anyone charged as a boundary concept for construing that idea of unreasonable delay places a constraint on reasonableness which we say is neither necessary nor of any particular sense. 

To illustrate that point, what we say is that 10 years on that assumption – 10 years of pre‑charge delay, as is seen here in Dennis Nona’s case – conceptually under that construction weighs less than 10 months of post‑charge delay.  That 10 years weighs less than 10 weeks of post‑charge delay and it weighs less than 10 minutes of post‑charge delay. 

Now, how is it, we ask, that such conduct of a State is simply to be excluded from an assessment of whether or not the delay was unreasonable or, secondly, the consequence of such a construction is that the conduct of those arms of the State – those arms of the Executive Government who control the timing of the laying of charges, the institution of the charge process, the investigation that leads to the charge process in criminal matters, those persons or bodies who act pre‑charge and who have such a significant role in determining the timeliness, or lack of timeliness, of a matter being brought to trial, untouched by this right which deals with delay in coming to trial, those actions cannot be taken into the mix on the current construction that has been adopted by the Court of Appeal.

However, if we are correct in saying that anyone charged simply nominates the class of persons to whom the right accrues, then all of those circumstances can be taken into account and fall within the measure of what might or might not be reasonable.  If it is the case that the Human Rights Act does give the applicant the right to trial without unreasonable delay then we say there must be a remedy.  The remedy that was sought was a stay but we say there must be some sort of remedy. 

The reason that we say that is we draw upon the judgment of Justice Toohey in Dietrich where he expressed that there is no wrong without a remedy and it is a vain thing to imagine a right without a remedy.  If a right has been invested, we say there must a remedy.  Perhaps, at the end of the day, we will be found to be wrong but that remedy is stay but we say there must a remedy. 

In Dietrich, the argument was that there was a right to counsel and that argument was found to be wrong.  It was found to be wrong because the common law contained no such right of a right to counsel but it did contain, and does contain, a right not to be tried unfairly.  Because of the identification of that right, a remedy was granted to the circumstances of the person who had gained that right.  That particular remedy meant that there might be no trial because no counsel was available, not because there was a right to counsel, but because there was a right to not be tried unfairly and so we say the result of remedy derived from a proper identification of right.

Here, there is no common law right to a speedy trial.  So your Honour’s question – or your Honours’ both question about where is the prejudice, is there prejudice, and our answer, no, under the common law we gain no right to say there ought to have been a speedy trial.  Unlike Dietrich, however, there is a factor here which is the grant of a statutory right to a trial without unreasonable delay and we say that that is a significant difference; there is the investing of a right.  What then is the effect of a right that has been invested by the legislature?  From where does the remedy derive or the set of remedies derive?

The Territory, we say, is chaotic in its authority about remedy for breaches, or purported breaches, of the Human Rights Act. Justice Dowsett’s reasoning, although focused on the question of stay, regarded that whether or not the power of the court was statutory in accordance with section 20 of our Supreme Court Act or whether it was non‑statutory, he had little difficulty in concluding that in exercising it the court should generally be guided by the statutory regime created by the Human Rights Act, particularly section 22(2)(c).

We say that that is quite a reasonable approach when one looks at the authority of Kelly v Apps which deals with the extent of that grant of authority to the Supreme Court.  Kelly v Apps appears at tag 11 of the authority bundle. At page 104, at the bottom of the page, the terms of section 20 are set out and then commentary is given on the effect of those terms, specifically here in relation to an appellate jurisdiction, and notes how broad the terms are, that:

They include all appellate jurisdiction that is necessary to administer justice in the Territory.

We say the next point shows that Justice Dowsett is probably right in his assertion.  It says ‑

The intention of the legislature seems to have been to ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory.

We say it is a broad grant of power and was recognised to be so by Justice Dowsett. However, Justice Penfold, in contrast, did not perceive section 20 as providing any jurisdiction for remedy. Her view was that unless the remedy came via Part 5A of the Human Rights Act, so the internal remedial provisions, or some other specific legislation clearly excluding section 20, or a recognised common law remedy there was no jurisdiction within the court to provide a remedy, that the Supreme Court was unable to protect what was contained in the Human Rights Act as a freestanding right.  It was constrained by the statutory remedies or what was presently effective under the common law.

That matched in part Chief Justice Higgins’ approach.  He rejected the grant of a remedy, and the reason he rejected the grant of the remedy was he found it did not fall within the common law criteria for the grant of a stay; that is, as your Honours have pointed out, there was no prejudice, there is no stay as a result of that, so it was the pure application of a common law remedy found to be unavailable despite the assertion of a statutory right.

Justice Burns, at first instance, gave relief to a smaller amount of delay and the relief he gave was public acknowledgment through the judgment and the listing of the matter so that it might be listed for trial, and he found that those were the correct remedies, given the nature of the delay which he had found.

Now, under those circumstances, he found a breach of the right, he granted remedies, but he specifically found that the actions of the prosecution in prosecuting the matter were not construed as unlawful under the remedial provisions of the Human Rights Act which means that, on Justice Penfold’s analysis, no remedy would flow from that portion of the Act because that is a prerequisite for the granting of a remedy. 

Again, in further contrast, Master Mossop of the Supreme Court in LM has examined the matter and come to a different conclusion again.  His analysis was to examine the interaction of the Human Rights Act with the court’s powers regarding abuse of process and whether a stay was available as a result of the court’s powers to prevent an abuse of the court’s processes.

The source of the remedy, as he found it, potentially because he said there was uncertainty about the matter, flowed from the concept that the ongoing prosecution by the Director of Public Prosecutions where there has been unreasonable delay could be found to be unlawful by the operation of

the Human Rights Act, that is, the inconsistency of their actions, with the Human Rights Act, as a public authority rendered their conduct unlawful.  However, he found that there were unresolved questions about that, and if I can take your Honours to that particular decision which is at 15, and to page 15 within that tab and to paragraph 38, there he falls upon this.  He says:

Whether or not an abuse of process can be established as a result of the breach of the HR Act by the Director of Public Prosecutions depends to a significant extent upon what the reference to “unlawful” in s 40B means.  Does it mean unlawful in the same way as the Crimes Act renders murder unlawful?  Or does it mean unlawful in some administratively more convenient sense of being a gateway to the grant of relief as a result of the operation of s 40C?

He favours the former, but at the end of the paragraph he says:

As I said in Russell v Pangallo . . . this is a fundamental and unresolved question in relation to the HR Act.

Back at page 12 of the same judgment at the quoted paragraph 25 he indicates how it is that abuse of process might be applicable to the question of the breach of a right because he says there:

If the continued conduct of a prosecution was declared by statute to be unlawful then it is likely that it would amount to an abuse of process.  The continued conduct of the proceedings would clearly be for a purpose alien to the administration of justice under law –

We are left in a position of chaotic authority.  That is a list of all of the judges of the Supreme Court, save for Justice Refshauge.  Now, under the circumstances, we draw that there has been the grant of a right, so there must be a remedy.  There must be a jurisdiction for remedy, whatever the appropriate right might fall to be.  The resolution of such a question, that is, the source of jurisdiction for the grant of remedy, answers what sorts of remedy are available.  Is acknowledgement available?  Is vindication available?  Is reduction of sentence available?  Is a stay available?  Is a conditional costs order available?  In this case we have an extraordinary breach, we say, of a real right.  Presently that breach, that extraordinary breach, is unrecognised by the court.  It is a real right which we say requires a determination by this Court both for its recognition and to found a proper remedy.

HAYNE J:   Thank you, Mr Gill.  We will not trouble you, Mr White, on this second application. 

In the first application, that is application C18, the prosecution’s application for special leave to appeal raises no issue suitable to a grant of special leave.  It would not be in the interests of justice generally, or in the interests of justice in this particular case, that there be a grant of special leave.  Special leave is refused.  In application C19 an appeal against the refusal of a permanent stay of proceedings against Mr Nona would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is refused.

AT 10.12 AM THE MATTER WAS CONCLUDED