The Queen v Dang

[2000] HCATrans 544

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S184 of 2000

B e t w e e n -

THE QUEEN

Applicant

and

TAM MINH DANG

Respondent

Application for expedition

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 30 NOVEMBER 2000, AT 10.16 AM

Copyright in the High Court of Australia

MS K. MARINOS:   Your Honour, may it please the Court, I appear for the applicant.  (instructed by the Commonwealth Director of Public Prosecutions)

MR R. HOENIG:   May it please your Honour, I appear for the respondent.  (instructed by Patricia White & Associates)

HIS HONOUR:   This is a matter in which you are seeking expedition?

MS MARINOS:   Yes, it is, your Honour.

HIS HONOUR:   The question is why you should jump the queue.

MS MARINOS:   Yes, your Honour.  I would refer to the written submissions that were filed on the 28th of this month, on Tuesday.  Does your Honour have a copy of - - -

HIS HONOUR:   The one headed "Applicant's Submissions on Application to Expedite"?

MS MARINOS:   Yes, your Honour.

HIS HONOUR:   Yes, I have read those.

MS MARINOS:   As you can see, your Honour, the respondent has been in custody since February 1996.  The position of the Crown is that pending the determination of the applicant's special leave application that the trial ‑ ‑ ‑

HIS HONOUR:   You are the applicant for special leave?

MS MARINOS:   Yes, we are the applicant, yes.

HIS HONOUR:   And you say the respondent is still in custody

MS MARINOS:   The respondent is still in custody.  He was granted conditional bail in 1998 but he has been unable to meet bail, so he remains in custody.

HIS HONOUR:   There is only one problem I have about this.  I take it, you are supporting this application, Mr Hoenig, are you?

MS MARINOS:   No.

MR HOENIG:   No, we are not, your Honour.  It is our submission that the matter should await the outcome of Azzopardi because that should, in my submission, resolve - - -

HIS HONOUR:   You say that, notwithstanding that your client is in custody?

MR HOENIG:   Yes, your Honour.

HIS HONOUR:   My first inclination is that Mr Hoenig is right, and let me tell you why so you can talk me out of it, Ms Marinos:  I do not think the Court's decision in Azzopardi and Davis will be given by either 16 or 20 February, which are the next two dates in which we have available places in the special leave list.  So that if your application succeeded, the application for special leave would come on for hearing at a time when the Court would not have delivered its judgment in Azzopardi and Davis.

MS MARINOS:   Would your Honour permit me to make some short submissions on that?

HIS HONOUR:   Yes.  That is the problem, I think, you have to address.

MS MARINOS:   Your Honour, the Crown's position is that in reading - and we have had an opportunity to read the transcript of the submissions made during the course of Azzopardi and Davis ‑ those cases were clearly "direct evidence" cases.  Our submission would be - - -

HIS HONOUR:   No, Davis was not, I am afraid.

MS MARINOS:   Well, it was a combination, your Honour, of direct evidence and circumstantial evidence, I will correct that.  The case of Dang is a purely circumstantial case.  It would be the applicant's submission that the case of Dang is a classic Weissensteiner Case.

HIS HONOUR:   You rely on a concession made by Mr Byrne in the course of argument.

MS MARINOS:   Exactly, your Honour.

HIS HONOUR:   It is dangerous to assume that what counsel says in the course of argument is necessarily going to be accepted by the Bench.

MS MARINOS:   Certainly, your Honour.  If I can just remind your Honour of some discussion that was in the course of submissions between your Honour and Mr Byrne about - - -

HIS HONOUR:   Do you mind if I mention to you, Ms Marinos, that I realise there has been a bit of a practice building up of doing this, and I can understand exactly why you are doing it, but some Judges take pretty strong views about referring to exchanges between Bench and Bar in the course of argument as indications of judicial reasoning.  Judges have different reasons why they say things or ask questions in the course of argument and a lot of them do not much like it if what they say in the course of argument in exchange with counsel is later referred to as a tentative expression of opinion.

MS MARINOS:   Certainly, your Honour, and I do not mean to do that at all.  If I can just say, the only point that I am trying to make is that there seemed to be a discussion as to what type of case would, in the light of section 20 ‑ ‑ ‑

HIS HONOUR:   I well remember the concession that Mr Byrne made but I think it would be very dangerous to assume that the fact that counsel makes a concession in a case like this means that any member of the Bench is going to accept it.

MS MARINOS:   Certainly, your Honour.  The only submission that the Crown would put is that this case, your Honour, may be a more appropriate vehicle in terms of being a classic Weissensteiner Case because it is a purely circumstantial case.  That is the only submission.  The Crown's position is it may be that Azzopardi and Davis do not resolve the question of directions to be given when it is a purely circumstantial case.  That is the only submission that I would put.  We are concerned that the trial of the applicant cannot be listed until that is resolved and it is purely a matter of trying to push it up ahead in the list.

HIS HONOUR:   Thank you.  I do not need to hear you, Mr Hoenig.

MR HOENIG:   If your Honour pleases.

HIS HONOUR:   The prosecution seeks expedition of the hearing of its application for special leave to appeal in this matter.  Notwithstanding that the respondent is still in custody, counsel for the respondent opposes the application.

The prosecution seeks expedition on the basis that the case raises issues similar to but not identical with the issues that were raised in the recent cases of Azzopardi and Davis in which we reserved our judgment a few days ago.  If expedition were granted, the matter would probably come on for hearing on either 16 February or 20 February 2001. 

Counsel for the respondent, opposing the application, points out that it is probably extremely unlikely that the Court will have given its decision in Azzopardi and Davis by either of those dates and that if the application for special leave were listed for either of those dates there is a distinct possibility it would simply be adjourned pending delivery of judgments in Azzopardi and Davis. 

I think that what counsel for the respondent says is right.  In my view, the application for expedition should be refused.

MS MARINOS:   May it please the Court.

MR HOENIG:   If your Honour pleases.

AT 10.23 AM THE MATTER WAS CONCLUDED