Spilios v The Queen

[2016] HCATrans 185

[2016] HCATrans 185

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A10 of 2016

B e t w e e n -

JOHN PAUL SPILIOS

Applicant

and

THE QUEEN

Respondent

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON THURSDAY, 25 AUGUST 2016, AT 4.27 PM

Copyright in the High Court of Australia

MR K.V. BORICK, QC:   If the Court pleases, I appear for Mr Spilios.  (instructed by Michael Hegarty & Associates)

MR I.D. PRESS, SC:   I appear for the respondent.  (instructed by Director of Public Prosecutions (SA))

HIS HONOUR:   Yes, Mr Borick.

MR BORICK:   My understanding, your Honour, is the question that arises is as to whether we…..our application to expedite the hearing.

HIS HONOUR:   It would seem at the moment to be somewhat inutile in view of the publication yesterday of the judgment, did it not?

MR BORICK:   That is my view.  It is futile, your Honour.

HIS HONOUR:   Are both parties agreed, then, that the summons should be dismissed?

MR BORICK:   In my view, yes.

HIS HONOUR:   Thank you.  Mr Press, do you agree with that?

MR PRESS:   I do, thank you.

HIS HONOUR:   I take it there are no orders for costs sought on either side, are there?

MR BORICK:   No, your Honour.

MR PRESS:   That is correct on our part, your Honour.

HIS HONOUR:   Thank you.

MR BORICK:   Your Honour, may I raise one other issue with you?

HIS HONOUR:   Yes, certainly.

MR BORICK:   In light of the judgment that was handed down in Miller, we will almost certainly have to amend our special leave application.  I have not had an opportunity to talk to Ms Gerry, who argued Jogee’s Case ‑ your Honour is probably aware of that.

HIS HONOUR:   Yes.

MR BORICK:   She is in the UK at the moment.  She is appearing for Jogee in the retrial.  I have not been able to talk to her.  I am certain that we will want to amend the special leave application and, in doing so, we will make specific reference to paragraph 16 of the Miller judgment.  That reads:

The appellants submit that Stephen’s statement of the principles was not a correct reflection of the law as it stood in the latter part of the 19th century.  The submission was not developed –

We will seek leave – I do not know if I can do it today – to amend our special leave application to make specific reference to paragraph 16.

HIS HONOUR:   Yes.  Mr Borick, all I will say about that is the application will obviously be made in the usual way once you have decided exactly what to do.  If you are seeking to overturn what has been said about McAuliffe in Miller, obviously it is going to require a Court of seven Justices.  In view of the way the land lies at the moment, it is inconceivable that such a Court could be convened before the end of this year, and thus the matter could not be heard until next.

Were that not the case – that is to say, were it not sought to overturn what has been said in Miller about McAuliffe – the matter would ordinarily be heard by a Court constituted by five Justices and, thus, in the usual course, would be heard in the relatively near future, this year.  That is not said in terrorem, it is said by way of information for your ‑ ‑ ‑

MR BORICK:   Yes, thank you.  I am confident, after I confer with Ms Gerry, that we will make an application to amend on the basis of what I have just mentioned.  We are hoping by making that application, we will not lose our place in the list.  We will be much clearer then about what our position is in the light of the judgment in Miller.

HIS HONOUR:   What I am endeavouring to convey to you is that de facto if you are going to be seeking to overturn what has been said in Miller about McAuliffe, you will lose your place in the list, because you will need to go to next year rather than this.

MR BORICK:   Yes, I understand, and thank your Honour for advising me of that.  I believe at the moment, the argument will centre on the application of McAuliffe to Spilios’ Case.

HIS HONOUR:   Mr Borick, as a matter of convenience for the Court, because there is a constant pipeline of cases and arrangements need to be made, how quickly can you let the Registrar know whether or not you will be pursuing this application to amend to contest McAuliffe?

MR BORICK:   Within 14 days.

HIS HONOUR:   Very well.  I will note that any application that is going to be made to amend the grounds of appeal will be made within the next 14 days, and I observe nothing more than this, Mr Borick; given the way these things go and the need for a response, no doubt, by the Crown to any application and the need to assemble a panel, it looks almost certain it will be going to next year, whether or not leave to amend is granted or not.

MR BORICK:   Thank you, your Honour.

HIS HONOUR:   Thank you, gentlemen.  Have you got anything to add on that score, Mr Press?  I assume not.

MR PRESS:   No, thank you.

HIS HONOUR:   Thank you.  I will simply make an order that the summons dated 27 May 2016 is dismissed with no order as to costs.

Adjourn sine die.

AT 4.33 PM THE MATTER WAS ADJOURNED