Thomas v The Queen

[2008] HCATrans 258

[2008] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M46 of 2008

B e t w e e n -

JOSEPH TERRENCE THOMAS

Applicant

and

THE QUEEN

Respondent

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 17 JULY 2008, AT 9.30 AM

Copyright in the High Court of Australia

MR J.H. KENNAN, SC:   May it please the Court, I appear with MR M.J. CROUCHER for the applicant.  (instructed by James Dowsley & Associates)

MR N.T. ROBINSON, SC:   May it please the Court, I appear on behalf of the respondent.  (instructed by Director of Public Prosecutions (Cth))

MR S.P. DONAGHUE:   May it please the Court, I appear for the Director‑General of Security on the summons seeking to be joined as a party.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Dr Donaghue, the application is made in M46 and you read the summons of 16 July?

MR DONAGHUE:   I do.

HIS HONOUR:   And you read, do you, the affidavit of Mr Giacco of 16 July?

MR DONAGHUE:   I do, your Honour, yes. 

HIS HONOUR:   Is there any objection to my receiving the affidavit?

MR KENNAN:   No, your Honour.

MR ROBINSON:   No, your Honour.

HIS HONOUR:   Yes, Dr Donaghue.

MR DONAGHUE: Your Honour, there are two relevant rules. The first is rule 21.05.1 of the High Court Rules 2004, paragraph (b) providing:

At any stage of a proceeding the Court or a Justice may order that . . . 

(b)any person who ought to have been joined as a party or whose presence in the proceedings is necessary to ensure that all questions in the matter are effectually and completely determined be joined as a party –

We rely on the first limb of that, “person who ought to have been joined as a party”, and we do that because of rule 41.01.1 which relevantly provides that an application for special leave to appeal:

shall be in Form 23 and shall name as parties all those who were parties to the proceeding in the court below at the time of the judgment below.

HIS HONOUR:   To what proceeding was the Director‑General a party?

MR DONAGHUE:   Your Honour, the proceeding that forms the subject matter of M46 is a proceeding that was initiated on a notice of motion filed on behalf of the applicant in the Court of Appeal seeking to have it reopen the earlier order that had been made directing a retrial. 

HIS HONOUR:   Is that, do you say, a proceeding separate from the appeal?

MR DONAGHUE:   The original appeal, your Honour?

HIS HONOUR:   The appeal in the Court of Appeal.

MR DONAGHUE:   Your Honour, its procedural status was never clarified in the Court of Appeal, but whatever it be ‑ ‑ ‑

HIS HONOUR:   I had noticed that, Dr Donaghue.  That is why I ask you what you say was the proceeding in the Court of Appeal to which the Director‑General was a party.

MR DONAGHUE:   Without wishing to duck that question, your Honour, whatever it was, the Court of Appeal were asked to allow my client, the Director‑General, to participate fully in it and they permitted us to do so by the order ‑ ‑ ‑

HIS HONOUR:   Yes, well, that rather obscures rather than illuminates anything, Dr Donaghue.  The question becomes, does it not – the point is not captious at all and it is one to which perhaps some attention may later have to be given, I do not know, but ‑ ‑ ‑

MR DONAGHUE:   Your Honour, can I say this.  We, in our own minds, entertained that question as to the power or jurisdiction that the court was being asked to exercise in reopening the orders that have been made.  That point was taken by the Director of Public Prosecutions in its written submissions before the Court of Appeal below and the Director was, I think, in the end – Mr Kennan was not called on to answer that point.  The court said it was satisfied that it had power to do what it was doing and proceeded on that basis, so the point ended up never being the subject of a full contest on the law in relation to what the court were doing.  I hesitated in answering your Honour’s question because, as a matter of logic, it does not really seem to be a continuation of what came before they ‑ ‑ ‑

HIS HONOUR:   It encounters the issue perhaps which may be thought to have been first examined by the Court in Grierson v R (1938) 60 CLR 431, subsequently applied by the Court repeatedly but most recently applied by the Court, I think, in Elliott v The Queen; Blessington v The Queen [2007] HCA 51, reported variously but including at 239 ALR 651, recently considered by the Court but not yet decided by the Court in the matter of Burrell v The Queen argued before the Court immediately before the July recess where I think I am right to say that the parties in the appeal argued the matter on the accepted footing that Grierson stated a principle which they did not seek to challenge.  Those are issues not, I think, for your side.

MR DONAGHUE:   No.

HIS HONOUR:   They are perhaps issues that may, they may not, arise in other aspects of the two applications before the Court, but it invites attention to what is the proceeding in the Court of Appeal to which the Director‑General was a party, having regard to the order which I would have thought was the requisite starting point which is exhibit JG‑1 to the affidavit relied on which says:

Director‑General of Security granted leave to intervene in relation to the hearing of the Notice of Motion –

A form of order which I understand you to say makes the Director‑General a party but it is at least a form of order which might be expressed otherwise if it had been intended to add the Director as a party such, for example, as by directing, as would ordinarily be the case, that the title of the proceeding be amended accordingly.  But, be it so, is it any more than the order to which I have just referred upon which you depend for your proposition that the Director‑General was a party to a proceeding be it a separate proceeding initiated by notice of motion or a proceeding being the appeal to the Court of Appeal assuming that still be extant?

MR DONAGHUE:   It appears, your Honour, that that order that your Honour has just directed my attention to is headed with the court number “No 37 of 2008”, clearly a proceeding number different from the proceeding from the original appeal.

HIS HONOUR:   In which case one would ordinarily have expected the order to have directed amendment of the process which was the initiating process for that separate proceeding.  I mean, these are not matters of idle form or solemnity.  There are two further aspects of the matter that I think would then need to be addressed assuming for present purposes that the issues thus far raised do not present your side with any difficulty at all.  Let us walk past those.  What is the meaning to be attributed in 41.01.1 to the expression “parties to the proceeding in the court below”?  Is that an expression which includes someone designated as intervener?  That is the first question which I think you may need to direct attention to. 

The second question is this.  What exactly is it that the Director wishes to achieve by being named as a party?  Is it more than receipt of the papers that are filed and an opportunity to file a written outline of argument or does the Director now desire to foreclose the question for the Full Court that would conduct any oral hearing that were to be had of this application about whether to hear the Director?

MR DONAGHUE:   Whether to hear the Director orally?

HIS HONOUR:   Yes.  What I am asking you to do, Dr Donaghue, is enter into the practical world what does the Director want to do and why?

MR DONAGHUE:   Yes.  Practically, your Honour, and to a certain extent that objective has been defeated as events have developed, but we sought to avoid the need to bring everyone here to argue an intervention submission which, we submit, we could do, because we thought there was no need, having done that below and succeeded at that point.

HIS HONOUR:   This is an application for special leave ultimately to intercept the progress of a retrial which, at least on one view of matters, may be thought to have already commenced with the arraignment of the accused and his entry of a plea of not guilty.  What is it that the Director‑General wants to achieve in relation to the disposition of that application concerning the conduct of a criminal trial in which the power of the polity is ordinarily regarded as sufficiently represented and completely represented by the Director of Public Prosecutions?

MR DONAGHUE:   Your Honour, in relation to the retrial itself, nothing, but the issue arises from the fact that at the heart of the issue that became the subject of the judgment in Thomas (No 4) was a range of assertions about how ASIO conducts its activities and what happens with the information that ASIO develops or what should be deemed or taken to happen with that information such that the Crown must be regarded as knowing everything that ASIO knew, have obligations of disclosure in relation to matters that were known to ASIO even if as a matter of fact those matters were not conveyed by ASIO to the Crown or the investigating police officers.  It is that body of arguments and the facts that bear upon the answer that should be given to the arguments that are raised that provoked the Director‑General to seek to intervene below and it did so because we say that the Director‑General is the only person who has access to the factual information that is necessary in order to give an informed answer to the questions that the applicant raised. 

That was the submission that was put before the Court of Appeal and accepted there where the DPP said by its counsel, “We are not in a position to answer those questions.  We do not have the information that is required”.  So we do not seek to inject ourselves into the main criminal law issues, but to the extent that the applicant says that this Court should not allow those processes to continue because of things that ASIO did, or because of things that ASIO knew, we submit that, as was submitted below ‑ ‑ ‑

HIS HONOUR:   It is not immediately self‑evident to me that there is not a logical gap or the proposition you have just advanced but that perhaps reflects a certain slowness of understanding on my part, that is, it is not apparent to me why the Director‑General is concerned in whether or not there is a retrial of this accused person or not.  Let me pass that by.  What is it you want to achieve by being joined as a party?

MR DONAGHUE:   The capacity to defend the decision that was made largely as a result of our submissions below.  That in essence is what we seek to achieve.  Certainly, as your Honour has said, access to the papers and the opportunity to file written submissions in opposition to the application for leave, if the Court did not wish to hear from us, but we would seek to attend the oral application for leave, if there be one.  If the Court does not call on us, then of course we would not seek to take that any further, but that is the practical outcome that we seek to achieve.  We seek it, your Honour, essentially because, as your Honour said, the first question is, what does the words in 41.01.1 mean, what are the parties to the proceeding below, and we had taken it to be settled law that that phrase included a person who was granted leave to intervene below.

HIS HONOUR:   What is the basis for that proposition?

MR DONAGHUE:   Your Honour, there is one case I would seek to take your Honour to, and I can hand up a copy of the authorised report.  It is Forestry Tasmania v Brown.

HIS HONOUR:   I have that.

MR DONAGHUE:   Your Honour, this is a decision of Chief Justice Black.  If your Honour starts at paragraph 4 you will see that the relevant Federal Court rule did not contain identical words, but they were very similar:

each party to the proceeding in the court appealed from . . . shall be joined as a party –

So, in my submission, that order is materially the same as 41.01.1.  His Honour then cites first United States Tobacco Company v Minister for Consumer Affairs, a decision of Justices Davies, Wilcox and Gummow in the Federal Court.

HIS HONOUR: Which turned particularly upon the particular provisions of section 12 of the ADJR Act, did it not, and section 78A of the Judiciary Act, both of which expressly and explicitly provide that interveners are to be treated as parties?

MR DONAGHUE:   The proposition quoted, your Honour, in paragraph 4 refers to those two provisions your Honour has noted and then says “or otherwise, becomes a party”.

HIS HONOUR:   I understand that.

MR DONAGHUE:   Their Honours also approved the judgment in Bradley in the New South Wales Court of Appeal which had also been approved in Cheesman, another Full Court decision:

A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party.  Thus he can appeal, tender evidence and participate fully in all aspects of the argument.

Then in paragraph 6 of the Chief Justice’s judgment:

These authorities support and reflect the general rule that once a person has been granted leave to intervene, that person is treated as a party with all of the rights of a party.  In the past, this has been so regardless of the foundation for the intervention.  The general rule had the consequence that an intervener at first instance was treated as a party to any subsequent appeal.  As a general proposition that is still uncontroversial.

So that is the legal foundation upon which we say that 41.01.1 applies to us.  Of course, in this case his Honour went on to find that the new intervention regime that had been created by the Federal Court Rules displaced that consequence.  Your Honour can then see at paragraph 15 of his judgment the Chief Justice says:

Authorities relating to common law intervention or to intervention based on unconditional statutory provisions such as s 78A are not to the point when determining the rights of interveners under the new Federal Court Rules.  The two types of intervention must now be understood as being quite different.

So his Honour is there talking about both common law intervention and statutory 78A type intervention and we submit that his Honour is right when he says that the general rule has the consequence that an intervener at first instance is a party to any subsequent appeal.

HIS HONOUR:   It is odd then, is it not, that 78A provides explicitly, as it does, that the Attorney intervening as of right is a party with the rights of a party?

MR DONAGHUE:   The significant effect, in our submission, of 78A is to confer a right to remove the discretion that would otherwise exist.  We, of course, did not rely on any statutory basis here.  Our application was made on the basis of common law principles.  I do not know that anything turns on it, but your Honour can see that the basis for our application was set out in the written submissions that we have exhibited as JG‑2 to Mr Giacco’s affidavit.  The bottom line in relation to our summons, your Honour, is, as we saw it, if those authorities are good law, the authorities Chief Justice Black has summarised, then 41.01.1 applies to us and we should just have been named as a party. 

Now, obviously if there is a Grierson-related problem to the whole application, then that may have consequences for us as it has for everyone else.  But if there was a proper application that could be decided by the Court of Appeal, that application was decided in a way where it was the Director‑General rather than the Director of Public Prosecutions who was the primary contradictor in that court and we submit, if that decision is going to be set ‑ ‑ ‑

HIS HONOUR:   Sorry, you say the Director‑General was the primary contradictor of the notice of motion?

MR DONAGHUE:   Yes.  We were heard first.  Our arguments occupied probably something in the range of an hour and a half of the oral hearing.  The DPP probably took 15 minutes on the notice of motion.  As I say, the DPP had cited in their written submissions Grierson, amongst other cases, but there did not end up being any argument about that, but the reason for all of the exhibits to Mr Giacco’s affidavit is to show, particularly through the exhibiting of the written submissions ‑ ‑ ‑

HIS HONOUR:   Let there be no misunderstanding of this, Dr Donaghue.  The proposition you are advancing is, is it, that the Director‑General of Security is the primary opponent in an application relating to whether an accused person should stand his retrial?  Is that right?

MR DONAGHUE:   Was the primary opponent in ‑ ‑ ‑

HIS HONOUR:   That is a very large proposition that the security apparatus of the State becomes the primary opponent of whether the criminal processes are to be engaged.

MR DONAGHUE:   Your Honour, we were not even present at the point at which the argument occurred about whether there should be a retrial of Mr Thomas following ‑ ‑ ‑

HIS HONOUR:   No, just so.  You were not party to that appeal, nor should you have been a party to that appeal.  The power of the State arrayed against the accused person was personified in the Director of Public Prosecutions.

MR DONAGHUE:   Yes, your Honour, and we accepted that and we did not attend and we did not seek to be heard and the Court of Appeal decided to order the retrial.  So at that stage we regarded ourselves as having no interest.  The point at which the Director‑General regarded himself as having an interest is when it was said that that order was wrong because the Court of Appeal had been misled and they had been misled because of ASIO.  So their argument for the reopening turned directly, and really on nothing else, upon things that they said ASIO knew and should have done or be deemed to have done as a result.  That was why we played the major role that we did in relation to Thomas (No 4) because the argument really related to nothing other than what we knew and what the consequences of that knowledge were.  That is the subject matter of the judgment that is now made the subject of special leave application M46. 

So if this Court were to allow an appeal from that judgment, we submit that it would be overturning a judgment that was made in circumstances where the main arguments it would be overturning are arguments that were advanced on behalf of the Director‑General.  So I do not for a moment advance the proposition that in an ordinary case the Director‑General would have any role at all in relation to criminal retrials.  But it was the applicant’s conduct in framing the motion as he did that brought the Director‑General within the scheme of this proceeding.  As your Honour has no doubt noted, we do not seek to intervene in M48 or to go in any way beyond the narrow confines of the grounds that relate to our conduct to the extent that they are the subject of the application M46. 

Your Honour, those are the submissions that I seek to make in relation to the summons.  There is one other matter that I would seek to raised with the Court about the National Security Information (Criminal and Civil Proceedings) Act, but that can come later, if it please the Court.

HIS HONOUR:   Yes.  Mr Robinson, what is the attitude of the Director?

MR ROBINSON:   The Director, your Honour, supports the application in relation to M46 essentially on the basis that the factual matter which was relied upon in support of the notice of motion was within the knowledge of the Director‑General only and not within the knowledge of the Director of Public Prosecutions or the Australian Federal Police.  In the absence of seeing how the argument is actually put to be developed by our learned friends on behalf of Thomas, though the grounds certainly seek to challenge factual findings, notwithstanding that affidavit material has been filed, it is the Director of Public Prosecutions’ position, your Honour, that questions of fact and information again might raise the very same question, that it is not within the purview of the knowledge of my client.  Other than that, your Honour, there is nothing else to say.

HIS HONOUR:   Yes, thank you, Mr Robinson.  Mr Kennan?

MR KENNAN:   We oppose the application, your Honour.  We say that the Court of Appeal treated the Director‑General as an intervener.  The grounds on which – and this appears at page 16 of the transcript that is exhibited to the affidavit of Mr Giacco ‑ ‑ ‑

HIS HONOUR:   That is exhibit JG‑3, is it?

MR KENNAN:   Yes, I think so, your Honour.  Your Honour will see at line 21 the court there expressed:

The basis of the grant of the right to intervene to the Director‑General is, in short, that there are matters raised by the applicant about the information‑gathering functions of ASIO, and about its relationships with other parts of the Commonwealth Government and other Commonwealth agencies with respect to the dissemination of information collected.  It is our view that the responses to be made to those submissions are better made by counsel instructed by the Director‑General than by counsel instructed by the Commonwealth Director of Public Prosecutions.

They were fairly narrow grounds, your Honour, and what happened, in effect, as Dr Donaghue said and as appears from paragraph 13 of Mr Giacco’s affidavit in support of this summons was that in a sense the Director‑General did become the primary contradictor in the sense that their argument took up much more of the court time and seemed to cover a wide range of issues going outside really the terms of the order for intervention.

Your Honour, we would say that the Victorian Supreme Court Rules are silent in terms of interveners and there is no assistance in them as to the status of an intervener, but we say that for the purposes of this application they should be treated as having been an intervener and the application

raises the issue that this Court referred to in the earlier 1996 case of the R v Elliott, a special leave application, your Honour, where the NCA sought leave to intervene on an appeal by the Crown against an order made by Justice Vincent in the course of a trial and ‑ ‑ ‑

HIS HONOUR:   Is that decision reported?

MR KENNAN: It is in 185 CLR 250, your Honour, and the matter was dealt with at page 253. His Honour, the Chief Justice said that:

Although the questions Mr Bennett seeks to raise, if leave to intervene were given, are no doubt of importance generally and of particular importance to the National Crime Authority, to the administration of the Act and to its construction, nonetheless this is an application for special leave to appeal in proceedings in a criminal trial and it would be highly inappropriate to grant leave to intervene in such an application.

If I could just refer in passing to what your Honour and, I think, one or two other Judges said in the matter of Papakosmas, which is not reported, your Honour.  It is a transcript of 5 March 1999 where there was an application by the Commonwealth Attorney‑General to intervene on a special leave application on matters relating to the construction of the Evidence Act and leave to intervene was refused. 

Your Honour refers in the transcript to the question, why should a person facing criminal prosecution face two forms of Crown against his interests?  I think that was picked up by one or two other judges.  The phrase was used “two emanations of the Crown” and we say that that would be the result of this if the Director‑General was added as a party to this application, that we would in fact be facing two emanations of the Crown and we say, finally, your Honour, that the grounds of appeal in M46, as outlined in the initiating document, are matters that can be adequately answered by the DPP.

HIS HONOUR:   Yes.  Would you wish to be heard, Mr Kennan, against my directing, regardless of whether the Director‑General is treated as a party or not, service of papers on the Director‑General and granting leave to the Director‑General to file written submissions, leaving it for the Full Court that conducts any oral hearing of these applications to deal with those submissions and any application for leave to be heard orally as it sees fit?

MR KENNAN:   No, I would not want to be heard on that, your Honour.

HIS HONOUR:   Yes, thank you, Mr Kennan.  Yes, Dr Donaghue.

MR DONAGHUE:   Two points, your Honour.  First, the cases to which my friend referred are cases about intervening in this Court, so they do not deal with the proposition that the rules upon which the summons is based applied to someone who was granted leave to intervene below and if Chief Justice Black is right in what he says, then we should be a party.  That said, I do not seek to be heard against the proposition that your Honour just put, that the matter be ‑ ‑ ‑

HIS HONOUR:   Am I right in understanding, Dr Donaghue, that the only expression of reasons by the Court of Appeal relating to the making of the order upon which you depend is to be found at page 16 of the transcript which is exhibited to Mr Giacco’s affidavit and is exhibit JG‑3?

MR DONAGHUE:   Yes, your Honour, but that is a ruling that was made orally at the end of a process and in order to appreciate the extent of that ruling, the debate that took place between the court and Mr Kennan leading up to it is relevant, as is, we submit, the written submissions found at JG‑2.

HIS HONOUR:   Are there particular passages in either of those or other documents to which you draw particular attention?

MR DONAGHUE:   Yes.  If your Honour goes to JG‑2, this is the written outline that the Director‑General filed in support of the intervention application.

HIS HONOUR:   Yes, I have that.

MR DONAGHUE:   In paragraph 4 of that document your Honour will see the questions that we said would arise upon which we sought to be heard.  They are not narrow questions.  As I heard Mr Kennan a moment ago, he suggested that our submissions on the hearing went beyond the grant of leave.  I can assure your Honour that that suggestion was never made before the Court of Appeal, notwithstanding the very extensive written submissions that we filed that are exhibited at JG‑5 which cover really all of the matters that became the subject of the application.  So it certainly was not said then that we  had gone further than the court permitted.  In the course of the debate with Mr Kennan, there is – I do not know that there are any specific exchanges.  On page 10, for example, the President, having listened to Mr Kennan’s submissions, said at line 6 through to 11:

I must say, with respect, the development of the argument only reinforces my preliminary view that there is a deal in what you say that I’d want hear ASIO respond to.  I would expect ASIO, particularly since you are calling them to account for their annual reports and so on, to be far better to answer that than counsel for the DPP.

Then at line 28 on the same page: 

They are distinct statutory functions.  As a starting presumption one would prefer, on the functions peculiar to one agency, to hear from counsel from that agency.

That is a reference to a debate referred to in the written outline about how sections 17 and 18 of the ASIO Act work and whether they empower ASIO to communicate with the AFP or the DPP.  That was a matter that we made submissions about and that was the subject of the judgment.  So it was not confined, in our submission, just to a narrow point about evidence, as emerges from that exchange.  My instructor reminds me, on page 14 of that transcript Mr Kennan’s submissions at lines 17 and 18 proceeds on the basis that ASIO should now be regarded as a party.  He says:

We would say the same sort of test applies here and that ASIO are undoubtedly, now they’re a party, they are a part of the prosecution arm –

That was in the course of making a different submission.  But the footing upon which everyone was proceeding after this application was made was that we were a full party to the application.

HIS HONOUR:   The footing on which everybody was proceeding, a degree of assumption, was about what powers the Court of Appeal was or might or could be exercising.

MR DONAGHUE:   Yes.  As I mentioned, your Honour, we did not regard it really for much the reason your Honour has identified, as a matter for us to be injecting ourselves into a debate about the criminal process that did not concern us.

HIS HONOUR:   Just so.  Yes.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   In November 2004 Joseph Terrence Thomas was charged with a number of offences against Commonwealth law.  After a trial in the Supreme Court of Victoria verdicts of guilty were returned to some but not other of the charges preferred against him. 

On 18 August 2006 the Court of Appeal of Victoria allowed Mr Thomas’ appeal against his convictions and published its reasons for decision.  In those reasons the Court proposed orders entering verdicts of acquittal in respect of the charges of which Mr Thomas had been convicted at his trial.  See R v Thomas (2006) 14 VR 475. On the application of the Director of Public Prosecutions, the Court of Appeal stood over for further argument whether, as it had initially proposed, orders entering verdicts of acquittal should be made or instead an order should be made for retrial of the charges concerned. Those proceedings are recorded at [2006] VSCA 166. Having heard argument on those issues, the Court of Appeal ordered on 20 December 2006 that a new trial be had of the offences of which Mr Thomas had been convicted at the initial trial. See R v Thomas (No 3) (2006) 14 VR 512.

In passing, I note that it is not entirely apparent from the file of papers available in this Court whether or when the order that a new trial be had passed into record in the Supreme Court of Victoria.  The notification of order that has been filed in one of the two applications presently pending in this Court records that the order was “reissued” on 7 July 2008 but does not otherwise indicate whether or when formal entry of the orders made on 20 December 2006 had occurred at some earlier time.

Following the orders pronounced by the Court of Appeal on 20 December further proceedings were had in the Trial Division of the Supreme Court of Victoria in March 2007. In April 2007 lawyers, then retained on behalf of Mr Thomas, found it necessary to withdraw from further representation of their client and on 18 April 2007 Justice Gillard of the Supreme Court of Victoria adjourned the retrial of Mr Thomas to February 2008. Between September 2007 and February 2008 it seems that a number of pre‑trial hearings had been conducted before another judge of the Trial Divison of the Supreme Court of Victoria, Justice Curtain, and on 4 February 2008 Mr Thomas was arraigned and entered pleas of not guilty to the charges then preferred against him. Section 391 of the Crimes Act 1958 (Vic) provides that:

If any person arraigned on any indictment or presentment pleads thereto “Not Guilty,” he shall without further form be deemed to have put himself upon the country for trial; and subject to section 391A the jury for his trial shall in the usual manner be impanelled accordingly.

The proviso to section 391 is not of immediate importance but it may be noted that section 391A of the Crimes Act provides that the judge before whom the accused is arraigned “may hear and determine question of law” and the like “before the jury is impanelled”. 

It may be assumed that it is in consequence of the application of section 391A that further hearings were conducted before Justice Curtain, including hearings on 11 February 2008, which culminated in the filing before a jury was impanelled a notice of motion in the Court of Appeal of Victoria on 13 February 2008. That notice of motion sought to rescind the order for retrial that the Court of Appeal had pronounced on 20 December. Argument of that motion proceeding before the Court of Appeal subsequently and on 16 June 2008 the Court of Appeal refused the application of which notice was given in the notice of motion. See R v Thomas (No 4) (2008) VSCA 107.

On 7 July 2008 Mr Thomas filed an application for special leave to appeal to this Court against the orders that had been made by the Court of Appeal on 16 June 2008.  The application for special leave to appeal recorded that Mr Thomas “applies for special leave to appeal from the whole of the judgment of the Court of Appeal, Supreme Court of Victoria, given on 16 June 2008 refusing the applicant’s application to have the court rescind its order of 20 December 2006 for a retrial and in its stead direct that there be verdicts of acquittal”.  The application, which is application M46 of 2008, named as parties the applicant, Mr Thomas, and the Queen as respondent.

On 10 July 2008 Mr Thomas filed a second application for special leave to appeal.  That application, M48 of 2008, seeks special leave to appeal “from part of the judgment of the Court of Appeal, Supreme Court of Victoria, given on 20 December 2006 allowing the applicant’s application for leave to appeal against conviction but ordering a retrial instead of directing that there be verdicts of acquittal”. 

The application which is now made is made by Director‑General of Security by summons dated 16 July 2008 and seeks orders that pursuant to rule 21.05 of the High Court Rules 2004 the Director‑General of Security “being a person who ought to have been joined as a party pursuant to rule 41.01.1 of the High Court Rules 2004 be joined as a party”. The application stems from the course of events that occurred in the Court of Appeal in relation to Mr Thomas’ motion for an order rescinding the order for retrial.

On 19 March 2008 the Court of Appeal (Maxwell P and Buchanan JA) made orders in the following terms:

1.Director‑General of Security granted leave to intervene in relation to the hearing of the Notice of Motion filed on or about 13 February 2008.

2.Application for orders in the nature of discovery and for leave to cross‑examine refused.

3.Leave granted to file an amended Notice of Motion in the form of the draft provided to the Court.

That order identified the originating process as being “notice of motion”.  The order was entitled “In the Supreme Court of Victoria at Melbourne, In the Court of Appeal Criminal Division between Joseph Terrence Thomas (No 4), applicant, and the Crown, respondent, and the Director‑General of Security, proposed intervener”.  It recorded the attendance of counsel on behalf of Mr Thomas, counsel for the Commonwealth Director of Public Prosecutions on behalf of the Crown, and counsel instructed by the Australian Government Solicitor, the order records, for the Attorney‑General Commonwealth.  That last reference, it would seem, was wholly inapt.  Under the heading “Other Matters” the court recorded that it referred the matter to a Master of the court “for further directions”.

Immediately following the making of the order the President said that:

The court has just granted leave, on the application of the Director‑General of Security, for the Director to intervene in relation to the hearing of the notice of motion filed by the applicant on about 13 February 2008.  The issue raised by the notice of motion is whether the Court of Appeal was misled in concluding, as we did in Thomas No 3, that the existence of the ABC interview – conducted with Mr Thomas before his trial but not published until after – was “unknown and unknowable” to the prosecuting authority before the trial. 

I omit a paragraph.  The President continued:

The basis of the grant of the right to intervene to the Director‑General is, in short, that there are matters raised by the applicant about the information‑gathering functions of ASIO, and about its relationships with other parts of the Commonwealth Government and other Commonwealth agencies with respect to the dissemination of information collected.  It is our view that the responses to be made to those submissions are better made by counsel instructed by the Director‑General than by counsel instructed by the Commonwealth Director of Public Prosecutions.

At a later point in the transcript of proceedings, having earlier dealt with certain applications that had been made for discovery of documents and leave to cross‑examine deponents, the President said, amongst other things, that:

Of course, the ordinary provisions of the rules apply as between parties.  Documents referred to in affidavits, for example, can be called for and if there are any in that category then the applicant has his usual rights under the rules.

On its face, that would appear to have been directed to the position of Mr Thomas vis-à-vis the Director‑General of Security rather than simply to Mr Thomas’ position vis-à-vis the Director of Public Prosecutions.

Thereafter, when the notice of motion came on for full argument before the Court of Appeal, the Director‑General appears to have taken the role of primary contradictor of the submissions advanced by Mr Thomas.  It is suggested, and the contrary is not asserted, that during the hearing extensive reference was made to the affidavits filed on behalf of the Director‑General and, in particular, an affidavit that the Director‑General had filed which came to be known as the “open affidavit”.  Yet, despite the order that had been made by the Court of Appeal on 19 March 2008 granting the Director‑General leave to intervene, the final record of the orders made by the Court of Appeal disposing of the notion of motion is a document entitled only as between the Queen and Mr Thomas.  It is in the circumstances of this evident procedural uncertainty, not to say equivocation, that the question presented by the summons must be considered. 

As counsel for the Director‑General rightly pointed out, the necessary starting point for consideration of this question is rule 41.01.1 of the High Court Rules.  That rule provides that an application initiating an application for special leave to appeal:

Shall name as parties all those who were parties to the proceeding in the court below at the time of the judgment below.

It is on the footing that the Director‑General was a party to the proceeding in the court below that the Director‑General invokes rule 21.05.1(b) submitting that:

the Court or a Justice may order that . . . 

(b)any person who ought to have been joined as a party . . . be joined as a party –

The Director‑General submits that the Court of Appeal having ordered, as it did, on 19 March 2008 that the Director‑General of Security be granted leave to intervene in relation to the proceeding, the consequence is that, as was said in Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 396:

A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party –

In this respect, as was pointed out in Bradley, the position of an intervener differs from that of amicus and, again as is pointed out in Bradley, interveners have rights of appeal.  Perhaps the most notable example of the exercise of such right being in the Boilermakers Case where it was the Attorney‑General of the Commonwealth that appealed to the Privy Council.

My attention was also directed to what was said in the Full Court of the Federal Court of Australia in United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 534 where the court said that:

An intervener, whether pursuant to s 12 of the ADJR Act, O 6, r 8(1) of the Federal Court Rules, s 78A of Judiciary Act 1903 (Cth) or otherwise, becomes a party to the proceedings with the benefits and burdens of that status.

A subsequent decision of Chief Justice Black in Forestry Tasmania v Brown No 2 (2005) 159 FCR 467 in which his Honour held that “party” when used in Order 52, rule 14 of the Federal Court Rules 1979 was not to be understood as extending to interveners, was said to depend upon the particular terms of the rules then in issue. 

The point which is now presented for decision is not free from difficulty. Some of the difficulties stem from the way in which the formal records of orders made in the Court of Appeal are expressed. It may be, however, that the difficulties that are presented stem from more fundamental considerations presented by the unusual nature of the processes that were being undertaken in the Court of Appeal. The Court of Appeal was being moved to rescind an order which had been made in exercise of the jurisdiction conferred on the Court of Appeal by Division 2 of Part VI of the Crimes Act 1958. Addition of parties to such proceedings is at least unusual.

It is not clear beyond argument and I need form no concluded view about whether the proceeding that culminated in the order which is the subject of the first of the two applications for special leave made by Mr Thomas is to be regarded as separate and distinct from the proceeding that was constituted by the criminal appeal which was the subject of the orders pronounced on 20 December 2006.  In the end, I am persuaded that the better course to adopt in this application is to add Director‑General of Security as a party respondent to the application for special leave.  I do that on the following footing. 

First, regardless of any conclusion I formed about whether Director‑General was entitled to be added as a party, I would have been minded to direct service of the papers on the Director‑General and to permit

the Director‑General to file a written outline of argument in response to the application for special leave. 

Second, whether it is appropriate to hear the Director‑General in opposition to the application for special leave is a matter to be decided by the Full Court.  In particular, it will be a matter for the Full Court to determine whether, regardless of any separation of representation of the Director of Public Prosecutions and Director‑General of Security, one counsel only will be heard in opposition to the application for special leave. 

Those are matters about which I express no view, but to which I draw the attention of the parties so that if the matter does proceed to oral hearing, counsel are not caught unwarned of the possibility that in an application for special leave arising out of a criminal appeal it is thought fit that only one argument on behalf of the respondent should be heard, not multiple arguments on behalf of respondents, however many there may be.  In the circumstances, I am minded to make orders in the following terms:

1.In application M46 of 2008 direct that the Director‑General of Security be added as a respondent and the title of the application be amended accordingly.

2.Subject to anything that counsel may urge, I would be minded to dispense with any separate service on the Director‑General of Security of papers thus far filed and served by the applicant. 

I would be minded to direct that the Director‑General abide the timetable already fixed as between existing parties and, given the nature of these proceedings, it is not evident to me that any question of costs could arise.

Now, Dr Donaghue, what do you say as to those forms of order?

MR DONAGHUE:   I am content with those, your Honour.

HIS HONOUR:   In particular, dispensing with any service of documents already filed and served?

MR DONAGHUE:   Yes.

HIS HONOUR:   It will mean, of course, that as new documents are to be prepared and filed and served, you will be served separately with those, but nothing up until now, is that right?

MR DONAGHUE:   My understanding is there are only the applications as yet filed.  The submissions and the application book are all still coming.

HIS HONOUR:   That is right, and if one arm of the Commonwealth cannot talk to the other to get copies, Dr Donaghue ‑ ‑ ‑

MR DONAGHUE:   There is no difficulty at all, your Honour.

HIS HONOUR:   Yes.  Now, an abbreviated timetable has been fixed to bring this matter on in the Melbourne hearings of 1 August?

MR DONAGHUE:   We are aware of the timetable and we intend to abide by it, assuming that we are in the same position as the respondent DPP, yes.

HIS HONOUR:   Your submissions will be by the same time?

MR DONAGHUE:   Yes.

HIS HONOUR:   Now, may I say this to both arms of the respondent.  There is to be no duplication and it is not immediately apparent to me at all yet why there should be any division.  However, if you insist upon separate joinder, so be it, but you have heard what I say.  Now, Dr Donaghue, you wish to raise some questions about the actual security matters?

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Why do we embark upon these issues?  Why do we not solve these problems as they were solved in Leghaei?  What security information has to be put before this Court?

MR DONAGHUE:   Your Honour, as I stand here I do not know the answer to that question because I do not know what my friend intends to file, but there is a difficulty, if it could just have a few moments of your Honour’s time.  Can I hand up a copy of the National Security Information (Criminal and Civil Proceedings) Act, unless your Honour has a copy on the Bench?

HIS HONOUR:   That is the National Security Information (Criminal and Civil Proceedings) Act?

MR DONAGHUE:   That is the Act, 2004.

HIS HONOUR:   Yes, as amended?

MR DONAGHUE:   Yes, your Honour.  Your Honour will see in section 6 of that Act that it, in criminal proceedings, is invoked by the Director of Public Prosecutions and that has occurred in this proceeding.

HIS HONOUR:   We are now back, are we, in the criminal appeal rather than a separate motion, Dr Donaghue?  Yes.  Do go on.

MR DONAGHUE:   Well, your Honour, at least in relation to the other proceeding, M48.

HIS HONOUR:   You are not a party in M48?

MR DONAGHUE:   No.  I am not advancing submissions as a party here, your Honour, I am simply making submissions about how this Act seems to us to operate.  Your Honour will see in section 13(2)(e) that a criminal proceeding is defined to include “an appeal proceeding”.

HIS HONOUR:   This is not an appeal proceeding, is it?

MR DONAGHUE:   Well, on the basis that until special leave is granted, there is no appeal.

HIS HONOUR:   Just so.

MR DONAGHUE:   Your Honour, that construction had occurred to me.  It would, we submit, be a strange interpretation of this regime if it were necessary to take various steps to protect national security information in the court below and in this Court following the grant of special leave, but not at an intervening step because if the protections did not apply at the intervening step, the damage to national security that the Act is intended to protect would be done.

HIS HONOUR:   Yes, but it may reflect, may it not, upon what this Court acts on applications for leave?

MR DONAGHUE:   Yes.  It may well be, your Honour, that it is possible for the whole of the appeal proceeding, at least the application, to be determined not by reference to national security information.  The difficulty that we perceive is that section 24 of this Act imposes various mandatory notice obligations upon the parties, the prosecutor and the defendant, and those thresholds are engaged, those notification thresholds, at a very low level, things that might affect or that relate to national security.  The protective part of the Act is engaged at a higher threshold to things that are likely to prejudice.  But if the information involved meets that lower threshold, then the notice provisions are engaged and once they are engaged, there are mandatory adjournment procedures in section 24(4) that provide that “the court must order that the proceeding be adjourned until the Attorney‑General” has given responses to the notice.  So the notification regime causes one possible set of problems.

There is also in section 23 a provision for the regulations to prescribe that various information must be “stored, handled or destroyed” in various ways.  Without taking your Honour to the detail of it, what the regulations prescribe is that those matters, storage and handling, has to take place in accordance with the documents called the “requirements document for  national security” unless a substitute regime has been put in place by orders made by the court pursuant to section 22 of this Act which is a consent regime if the parties can come up with an arrangement between themselves as to how matters of this kind should be dealt with.

HIS HONOUR:   Dr Donaghue, why are we embarking upon any of these questions now?

MR DONAGHUE:   Because, your Honour, at the moment there are in the possession of all of the parties a body of classified material, particularly the two of three of the affidavits filed in the Court of Appeal below on the motion and the exhibits to those documents, plus other documents that have been provided pursuant to subpoenas.  Those documents cannot even be kept by, cannot be stored by the parties unless they are governed by a set of section 22 arrangements, because in the absence of those orders, the regulations kick in those requirements that are currently met.  Now, the parties have consented to section 22 regimes in this proceeding in its many manifestations across many years, including before Justice Curtain and before the Court of Appeal on the motion and my understanding is that both Mr Thomas and the DPP are happy to consent to the same orders that were made in the court below being made by this Court, if your Honour is persuaded that it is appropriate to do so.

HIS HONOUR:   In respect of what document that would ordinarily be required under rule 41.09 to go into an application book?  That is my point, Dr Donaghue.  I am not minded to jump hurdles that are not there.  Rule 41.09 prescribes what is to go into the application book.  If you would be good enough to turn to that and tell me which of those headings encompasses any document that would invoke any of these provisions?

MR DONAGHUE:   Well, your Honour, the parties, depending on what Mr Kennan chooses to put in it, that, we submit, for example, one of his grounds ‑ ‑ ‑

HIS HONOUR:   I do not care what Mr Kennan chooses to put into it.  I want to know what under the rules which govern what goes in an application book, what under the rules would be included in this application book that would invoke these provisions?  If there are some documents, then by all means, let us deal with them, but if there is not, I am not going to jump a hurdle that is not there yet.

MR DONAGHUE:   The document that I had in mind when I referred to Mr Kennan is his summary of argument, your Honour, because his grounds included, for example, a failure to allow cross‑examine of ASIO affidavits.  Those affidavits are classified documents.  If he proposes to make submissions about why he should have been allowed to cross‑examine on the content of those documents, he could not make those submissions without ‑ ‑ ‑

HIS HONOUR:   Be it so, I mean, if this is a live issue, I will deal with it.  Of course I will deal with it and I will deal with it having close regard to the provisions of the applicable statute.  Of course that will be done.  But I am not going to make prospective or proleptic orders against the possibility that there may be a storm tomorrow.  Let me confront it when the clouds are rather darker and looming a little more than against the possibility.  There is a fundamental proposition that is underpinning all this, Dr Donaghue.  The processes of this Court are not going to be fettered by security orders and secrecy orders unless and only to the extent that that is required.

MR DONAGHUE:   Yes.

HIS HONOUR:   Now, do you point me to any immediate issue that I need to address?

MR DONAGHUE:   As I understand it, Mr Kennan is supposed to file the material next Monday.  Depending on what is in that material, he may be unable to file it in accordance with the orders of the Court if there is not – I understand what your Honour says and I agree that ‑ ‑ ‑

HIS HONOUR:   Well, he has a problem, you have not, has he not?  He has a problem.

MR DONAGHUE:   I do not have a problem unless he files in accordance with the ‑ ‑ ‑

HIS HONOUR:   Let me be blunt about it, Dr Donaghue.  If there is a real problem, the parties can come and get me out of my chambers, I will not say quite at the drop of a hat, but pretty quickly.  Now, I am not going to impose difficulties in the way of the parties resolving these issues because these applications have to come on quickly, but I am not going to jump hurdles that are not there, and certainly not by making orders requiring secrecy of unstated things and unarticulated things.  It will not happen.

MR DONAGHUE:   No.  Your Honour, the orders that the parties had proposed to consent to were orders that left, as is obviously appropriate, the control of public hearings and matters of that kind squarely in the hands of the Court.  So it was not suggested that ‑ ‑ ‑

HIS HONOUR:   That is very good of the parties to do that, Dr Donaghue, very good of you.

MR DONAGHUE:   Your Honour, what I am saying is that there is no attempt to fetter this Court in the way in which the proceeding is conducted.  The difficulty arises, as I say, because the obligations that the Act impose – because this proceeding relates to a terrorism trial in the end, basically all of the information in it, even if it will not prejudice national security, relates to national security as that concept is defined.  On that view, the parties have obligations under this Act, even if no one would ever dream of applying to close the Court in relation to the material, and it is on that footing that the orders have been made in the courts below.

HIS HONOUR:   I will accept there may be problems, I understand that, but I am not going to solve them until I know what the problem is.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   Yes.  Now, do other parties wish to be heard?

MR ROBINSON:   No, your Honour.

MR KENNAN:   No, your Honour.

HIS HONOUR:   Now, how realistic is this timetable, Mr Kennan?

MR KENNAN:   We are intending to comply with our timetable by Monday, your Honour.

HIS HONOUR:   Yes, 1 August is looming and we have to get to an end of this.

MR KENNAN:   Yes, we agree, your Honour, and we will meet out part of it.

HIS HONOUR:   Yes, very well.  We had better just formalise the orders so we all know what we are doing.

In application M46 of 2008:

1.Direct that the Director‑General of Security be added as a respondent and the title of the application be amended accordingly.

2.Direct that the applicant be dispensed from any obligation to serve on the Director‑General any of the documents filed in the application before the making of this order.

3.Direct that the Director‑General file and serve its outline of submissions at the time fixed in respect of the submissions of the Director of Public Prosecutions.

Dr Donaghue, it will be necessary for your party to appear.  Will your party take the steps necessary to amend the title of the proceedings?

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Is there any other procedural step I need to tick off other than those I have ticked off?

MR DONAGHUE:   Yes.  It is mentioned that we should file a notice of appearance in the matter, but we can attend to any other procedural steps that are required.  I cannot, as I stand here, think of anything else, your Honour.

HIS HONOUR:   I am not conscious of any either.  Very well.  Then liberty to apply to any party – if I say 24 hours of notice in writing?

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   If push really comes to shove, counsel can no doubt approach the Registry and, as I say, steps will be taken.  Is there anything further?

MR DONAGHUE:   No, your Honour.

HIS HONOUR:   Very well.  Adjourn the Court.

AT 11.02 AM THE MATTER WAS CONCLUDED