UD v The Queen - [2020] HCATrans 61

[2020] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C7 of 2020

B e t w e e n -
UD
Applicant
and
THE QUEEN
Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 28 MAY 2020, AT 9.29 AM

MR J.S. STELLIOS: May it please the Court, I appear for the applicant. (instructed by Legal Aid ACT)

MR N.S. DRUMGOLD, SC: May it please the Court, I appear with MS K.L. McCANN for the respondent. (instructed by ACT Director of Public Prosecutions)

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory: May it please the Court, I appear with MS H. YOUNAN for the Attorney‑General for the Australian Capital Territory intervening. (instructed by Australian Government Solicitor)

HER HONOUR: Thank you very much. The Court has listed this matter for directions because, on receipt of the submissions filed by the Attorney‑General for the Australian Capital Territory intervening, it became apparent that some of the factual bases upon which the Court had removed the cause into the Court and, in effect and in addition, when one looks at the submissions filed by you, Mr Stellios, a lot of the factual basis had on its face changed.

I thought I might run through those matters because the Court’s concern is that we are not certain that the applicant’s trial would not be a jury trial. I will explain why that is the case. As you know, the Court does not take on matters which are hypothetical.

The factors that are of concern to us, and I will put them out and then you might respond to them if you would – the order is a proposed order as is made apparent by the email sent by your instructors to Justice Elkaim’s associate. That order is subject to recall and at present it would appear that there is a possibility that it might be recalled. The press release by the Chief Justice talks about the fact that jury trials are going to recommence on 15 June. It does not identify which ones are in and which ones are out. For present purposes that can be put aside.

In response to the inquiry about whether or not that change in the practice of the Supreme Court would affect the applicant’s trial, his Honour’s associate says not at this stage, but the parties are free to relist the matter before his Honour and one wonders if that is not the appropriate course in order to ascertain whether or not there will be a jury trial. I say that for this reason because, as the affidavit that your instructors filed yesterday showed, this plus some other trials which are apparently jury trials, are listed for four weeks to commence on 31 August for a period of four weeks from that date.

Now, I know the situation is fluid and a lot happens…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] HCATrans 61
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a matter involving the applicant, UD, and the respondent, The Queen. The dispute concerned the constitutional validity of a provision, likely relating to trial procedures, and whether the applicant would face a judge-only trial. The Court was engaged in a directions hearing to clarify the factual basis of the application, particularly in light of recent developments regarding the recommencement of jury trials.

The central legal issue before the Court was whether the constitutional question raised by the applicant remained a live and arguable one, or if it had become moot due to changes in the practical administration of trials. Specifically, the Court needed to determine if there was sufficient certainty that the applicant would not have a jury trial, which was the premise for the constitutional challenge. The Court was concerned that it should not adjudicate hypothetical or academic questions.

The Court's reasoning focused on the fluid nature of the factual circumstances. The applicant argued that the burden of having to return to the trial judge to have a proposed order reconsidered constituted a sufficient legal consequence to keep the constitutional issue live. However, the Court noted that the proposed order was subject to recall and that recent announcements about the recommencement of jury trials, including the listing of certain trials for a future date, cast doubt on the applicant's assertion that a jury trial would not occur. The Court expressed a strong preference for certainty in the factual basis of proceedings and concluded that the applicant needed to establish a clearer position regarding the likelihood of a jury trial.

Ultimately, the Court decided to revoke its earlier order removing the cause into the High Court. This revocation meant that the listing dates for the proceedings were vacated. The Court clarified that this decision did not preclude the applicant from making a fresh application for removal if circumstances changed and a genuine constitutional question arose with a certain factual foundation.

Orders