The Queen v Khazaal

[2011] HCATrans 229

[2011] HCATrans 229

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

Application for expedition

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 AUGUST 2011, AT 9.30 AM

Copyright in the High Court of Australia

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

MR P.D. LANGE:   May if please your Honour, I appear with my learned friend, MR C.C. WATERSTREET, for the respondent.  (instructed by Lawyers Corp. Pty Limited)

HER HONOUR:   Yes, thank you.

MR LANGE:   Your Honour, could I report firstly that the words of a Justice of this Court reverberate well beyond the pages of the Commonwealth Law Reports and legal aid for this application was granted yesterday.  However, having said that, once one trapdoor closes it seems as if another one opens.  Perhaps I can deal with that aspect first before turning to more general principles.

HER HONOUR:   Yes.

MR LANGE:   I yesterday, in the course of seeking to obtain funding for this set of proceedings, spoke to a Ms Harrison who I understand is the team leader so called of the relevant division in Legal Aid that deals with such matters.  She expressed some significant concern about the funding for the trial insofar as it might require the assignment of fresh legal representatives.  I say right at the outset today that this does not have a direct impact upon your Honour’s decision.  Whether or not legal aid is granted for the trial is more a matter properly dealt with by her Honour Justice Latham and I undertake the matter will be brought before her Honour on Friday when the arraignments list is next in the Supreme Court but, nevertheless, I do raise it for this reason. 

It might well have an indirect impact upon your Honour’s decision today to the extent that the trial could not take place in any event if legal aid funding were not granted because of the difficulties of cost as far as legal aid is concerned.  It might well make the application in this Court moot.  Ms Harrison spoke to her immediate supervisor, who I understand to be acting director of grants, Ms Mary Whitehead.  Ms Whitehead has provided a letter which should be before your Honour and which I have shown to my learned friends.

HER HONOUR:   Mr Neil, is there any objection to me seeing this letter?

MR NEIL:   Absolutely not, your Honour.  It is addressed to Mr Lange and we were given a copy this morning.  We have one copy.  If my friend had a spare to hand up, if your Honour does not have it.

HER HONOUR:   One appears on the desk.

MR NEIL:   If it please your Honour.

HER HONOUR:   Perhaps, without the formality of tendering it, I might read it with the consent of the parties.

MR NEIL:   Indeed.

MR LANGE:   Yes.

HER HONOUR:   Mr Lange, I am not quite sure what the effect of that letter is.  In any event, the position is this, is it not?  At the moment the trial of your client is listed to commence on 7 November in the Supreme Court.  If there are reasons why that should not occur in connection with difficulties with representation, that really is a matter for the Supreme Court.  It seems to me difficult for me to approach today’s application other than on the basis that the trial date has been fixed.  There is an application for special leave to appeal which, if it were resolved in favour of the applicant, would necessitate the trial date being vacated as a matter of practicality but which, if it were resolved in your favour and against the applicant, would not have that consequence.

MR LANGE:   Indeed.

HER HONOUR:   That being the position and in circumstances in which it is possible for the Court to deal with the application on an expedited basis, putting entirely to one side any question of costs, generally there is a concern that applications brought in this Court not interrupt or cause fragmentation to the process of criminal justice and that would seem to me an important consideration here.

MR LANGE:   Yes, your Honour.  If I could just take your Honour to one judgment which I have handed up, obviously, shall I say, of lesser precedential value since obviously it is a matter that was dealt with in chambers in a like situation, the matter of R v Heubner and R v Maher, a decision of Justice Callinan.  In my submission, really the facts of that case, your Honour, are on all fours with the present matter and I say that for this reason. 

In those proceedings an appeal to the Queensland Court of Appeal had been successful and convictions for murder had been quashed and the Court of Appeal ordered that the one applicant be convicted of manslaughter instead and that there be a fresh trial of manslaughter in respect of the second applicants, thus the first applicant remained in custody in respect of his manslaughter conviction and the second applicant was released on bail pending the fresh trial.  In my submission, very similar to this situation that has arisen here with my clients.  I need not trouble your Honour with the bulk of the transcript, but if the Court would turn to page 12 of that transcript commencing at line 433, his Honour there states:

The applicant seeks expedition of the application for special leave to appeal principally upon the ground that it is desirable that the uncertainty with respect to both of these respondents be resolved, and because of the risk which is present in any situation of this kind, that witnesses may become unavailable and memories may fade.  These regrettably are the consequences of any legal system in which instantaneous trials and retrials are simply not possible. 

I hasten to add, of course, that the Crown does not suggest that there was any question about memories.  Really the evidence the Crown relies upon is hard tangible evidence.  Then continuing at line 451:

I accept that it is, of course, desirable that uncertainty be removed as soon as possible and ideally this matter, together with all other matters, should be disposed of expeditiously.  In the circumstances, however, I do not think that any sufficient basis has been shown for the displacement which would inevitably occur of other applications for special leave which are pending in the court and of which there are a fairly large number.

Then finally on the final page his Honour there referred to the position of the second respondents:

The female respondent is on bail and, apart from the prejudice attaching to uncertainty, is otherwise unaffected by the current situation.

Notably there was consents by all parties to the application to expedite.  Nevertheless, the Court obviously, because it is in charge of its own lists, paid little regard to that position and I would have to accept that would be the case today as well.

HER HONOUR:   Was there any question in that case of a trial date having been set?

MR LANGE:   No, it was not in that case.  I think the matter merely was listed for mention.

HER HONOUR:   I see.

MR LANGE:   The question that arose in respect of the first applicant is whether the sentence should proceed notwithstanding the application for special leave, but no other trial date had been fixed.  Your Honour has, of course, referred to the question of fragmentation.  There is, of course, this consideration, that really there would be no difference whether this application proceeds this year or, in effect, next year.  If the application takes its ordinary course one would imagine that it would not be heard prior to December, I do not imagine, if not next year, in which event the Crown, if your Honour refuses the expedition application today, would be in a position to know that it is not required to incur the expenditure this year, it could make arrangements for next year and the matter would just simply take its ordinary course, the Crown would not in any way be prejudiced.  Unless I can be of any further assistance.

HER HONOUR:   Thank you, Mr Lange.

MR LANGE:   Mr Neil, have you had an opportunity to look at this decision of Justice Callinan in the matter of Huebner?

MR NEIL:   The same opportunity as your Honour, but it is sufficient for me to put a very brief submission.  Mr Lange fairly put the circumstances there were quite different.  A fundamental aspect here is that a trial date has been fixed and it is quite imminent and we have an opportunity of knowing a month ahead one way or the other whether, but for the matters my friend refers to emanating from the Legal Aid letter, the trial could proceed and, as I understood a remark from your Honour, it would be possible for the Court to entertain a special leave application on 7 October.

HER HONOUR:   On 7 October, yes.

MR NEIL:   Therefore the aspect of matters being displaced does not seem to apply here.  Now, for those reasons, we would submit that the overall interests of justice militate strongly in favour of granting the application.  May it please your Honour.

HER HONOUR:   Thank you, Mr Neil.  Mr Lange, now that a grant has been made, am I right in thinking that in the event I were against you and an order for expedition was made, it would be possible to file the respondent’s summary of argument, assuming that I give an extension of time in that respect, in a way that would accommodate the hearing on 7 October?

MR LANGE:   Your Honour, I imagine so.  I will need to clear the decks, metaphorically speaking.

HER HONOUR:   This is an application brought by the Commonwealth Director of Public Prosecutions for an order expediting the hearing of the application for special leave to appeal filed on 6 July 2011.  The affidavit of Eliza Amparo affirmed on 9 August 2011 is read in support of the making of that order.  Ms Amparo deposes to the fact that the trial of the respondent, which commenced on 11 August 2008, concluded on 10 September 2008 when the respondent was convicted of the offence. 

Following his sentencing for that offence on 25 September 2009, a notice of intention to appeal against conviction was filed.  That appeal was heard by the Court of Criminal Appeal on 6 October 2010.  On 9 June 2011, the court gave judgment allowing the appeal and quashing the respondent’s conviction.  The consequential order made by the Court of Criminal Appeal was to order a new trial.  On 1 July 2011, the court fixed the new trial to commence on 7 November 2011.  On 6 July 2011, the applicant filed the present application.  The following day Justice Adams granted the respondent conditional bail.  That bail has been entered. 

The applicant contends that it is in the interests of justice that the hearing of the application be expedited with a view to its determination in advance of the date fixed for trial.  The application is opposed.  In support of that opposition, Mr Lange has invited attention to certain difficulties respecting arrangements for the respondent’s representation with the assistance of a grant of legal aid on the date fixed for the trial.  In his submission, were expedition not ordered as a practical matter, the application would not come on for hearing in this Court before 7 November next, the Supreme Court in these circumstances would be likely to vacate the date and in these circumstances no inconvenience would be occasioned to the parties in the preparation of a matter for trial on the anticipated date.

The Director has filed his outline of argument.  There is no obstacle to the respondent filing his outline in a timely fashion and to this application being dealt with in the special leave list on 7 October.  In the event the respondent is successful in opposing the grant of special leave, the respondent’s trial may then proceed on the date that the Supreme Court has fixed for it, subject to that court determining otherwise.  As a general proposition, it is undesirable that the progress of criminal proceedings before the Supreme Court be interrupted by applications to this Court.  Expediting the application may have the consequence that there is no interruption to the timetable fixed by the Supreme Court. 

In my view, that is a consideration of prime importance in the determination of the application.  Taking that consideration into account, I propose to make an order for expedition.  Now, Mr Lange, just looking at the timetable, did you tell me the Registrar had indicated provisionally an extension of the time in which the respondent might file his summary?

MR LANGE:   Yes.  At present that date, I believe, is the 31st, next Wednesday, unless I am mistaken.

HER HONOUR:   That may present difficulties given that you received the grant of legal aid only yesterday.

MR LANGE:   Yes, indeed.

HER HONOUR:   Do I take it you seek ‑ ‑ ‑

MR LANGE:   I would ask that I make that application today that this Court, your Honour, grant some relief.

HER HONOUR:   Yes, indeed.  On the face of things, it would seem, taking into account that you only received legal aid yesterday, that it would be reasonable to give you the 21 days that the rules provide starting from then, which I think would take us to 16 September.  Do I take it that would be reasonable from your point of view?

MR LANGE:   Yes, I would appreciate that extension, your Honour.

HER HONOUR:   Very well.  Then the reply seven days thereafter would take us to 23 September.  Would there be any difficulty, Mr Neil, in the application book being filed by Wednesday, 28 September?

MR NEIL:   I would not expect so, your Honour.  The indication is no.  If there is a problem, we would perhaps contact the Registrar, but we would expect to comply with that all within a day or so.

HER HONOUR:   If there are no other procedural matters to raise, I will make orders in the proceedings.  I make the following orders:

1.The application for special leave filed on 6 July 2011 is expedited.

2.I direct that the application be placed in the special leave list for hearing in Sydney on Friday, 7 October 2011.

3.The respondent is to file and serve his written argument by 16 September 2011.

4.The applicant is to file his reply within seven days thereafter.

5.The application book is to be filed by 28 September 2011.

If there are no further matters, I will adjourn.

MR NEIL:   May it please your Honour.

AT 9.51 AM THE MATTER WAS ADJOURNED