Vunilagi v The Queen

[2022] HCATrans 113

[2022] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C23 of 2021

B e t w e e n -

SIMON VUNILAGI

Applicant

and

THE QUEEN

First Respondent

ATTORNEY‑GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY

Second Respondent

Application for special leave to appeal

KEANE J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 17 JUNE 2022, AT 12.47 PM

Copyright in the High Court of Australia

KEANE J:   In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR J.S. STELLIOS for the applicant.  (instructed by Hugo Law Group)

MS K.L. McCANN appears for the first respondent.  (instructed by ACT Director of Public Prosecutions)

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory, appears with MS H. YOUNAN, SC and MS A.M. HAMMOND for the second respondent.  (instructed by Australian Capital Territory Government Solicitor)

KEANE J:   Ms McCann, I notice that Mr Walker’s client requires an extension of time.  Is that opposed?

MS McCANN:   No, your Honour, that is not opposed.

KEANE J:   Thank you.  Mr Walker, you have your extension of time.

MR WALKER: May it please the Court. Your Honours, the conviction in question followed a bench trial, a trial by judge alone, and it was, of course, for offences against laws of the Australian Capital Territory, an expression I use deliberately because of the terms of section 80 of the Constitution, to which I will come, but not immediately.

Laws of the Australian Capital Territory, of course, depend or derive from the powers given to the Commonwealth Parliament by section 122 of the Constitution, and then of course upon legislation…..Self-Government Act in this case. But the particular provision at the heart of the argument, which can be seen at page 231 of the application book is, as your Honours know, a temporary provision to deal with what is there called the “COVID‑19 emergency period”- section 68BA of the Supreme Court Act 1933 of the Territory, continued, in effect, by reason of the initiating notice in question by the provision you see overleaf at page 232 of the application book, namely, section 116 of the Act.

In section 68BA, one notices that the power to order that the proceeding be tried by judge alone depends, in subsection (3), upon satisfaction of matters which are familiar as being in the heartland of functions to be discharged judicially, indeed, expressed in terms which characterise the exercise as judicial. That, of course, were it to stand alone, would be most inauspicious for the argument under ground 1 that might be called the Kable point. 

The Kable point, however, depends upon subsection (4) and its operation anterior to or, by way of gatekeeper (4), the exercise of characteristically judicial functions under subsection (3).

GLEESON J:   Mr Walker, just at the outset, was there anyone other than your client who was the subject of an order of this kind?

MR WALKER:   I understand a handful, literally.  I suppose it would be appropriate for me to, at this point, interpolate, in relation to Justice Gleeson’s question and to a matter understandably raised against us by our friends, it cannot surely be an answer either to special leave or, indeed, on an appeal, all the more obviously, that it is only one person, or five people, or it is only for a short time that there has been a departure from norms of the importance that we would raise in each of our grounds.  If anything, it would be of comfort to the administration of justice that there has been temporary and limited departure from those norms that could not possibly render, in the individual cases, the matter less serious. 

Coming back then to subsection (4), your Honours will see that, as a prior step:

Before making an order under subsection (3) –

itself being preceded by consideration of a state of satisfaction, there is a notice given.  The notice is plainly, as one sees from paragraph (a) of subsection (4), at least contemplated as being, and perhaps in all cases being, regardless of and without prior knowledge of either of the parties.  In paragraph (b) of subsection (4) it is by that notice that procedural fairness is afforded.  It is after that procedural fairness is afforded that the court determines the state of satisfaction for the jurisdictional fact in subsection (3), and also the residual discretion created by the phrase “may order” in subsection (3).

Our Kable point is simply this, that the exposure of the risk of losing a jury after argument and upon a court being satisfied of the matters in subsection (3) and exercising the discretion in subsection (3), is a risk that descends arbitrarily in the sense that subsection (4) does not require anything of a principled or policy‑informed kind to single out which cases will be cases in which such a notice is issued.

GLEESON J:   It is not really arbitrary, is it, Mr Walker?  It is a power that is conferred on every judge in the relevant court to decide whether or not to invoke.

MR WALKER:   It is arbitrary in the sense that – in which case there will be a notice given under subsection (4) does not depend upon any statutory criterion.  It is arbitrary in the sense that there is no involvement in that initiating process at all by any party, and I stress once that process is involved, not only retrospectively do we see how section 116 gives that substantive effect – once that notice has been given, an accused – and for that matter, a prosecution – is exposed to a risk of losing a jury which would not otherwise exist.

EDELMAN J:   Mr Walker, it is not entirely untrammelled.  “Before making an order under subsection (3)” are the opening words of subsection (4) – so, subsection (4) must contemplate that the judge would have considered the criteria in subsection (3) as possibly enlivening the prospect of such an order before giving the parties a written notice of the proposed order.  It has to be a proposed order.

MR WALKER:   Yes.  Two things – I could not possibly resist the notion that those words are to be read as rendering proper consideration by a court under subsection (4) of the possibilities under subsection (3) – I accept that – that would be bizarre for me to argue to the contrary.  On the other hand, subsection (4) is not controlled by that implicit likelihood.  It is only in that sense that we say it is arbitrary in the sense that it departs from the necessary equality before the law in relation to this exposure to the risk of losing a jury.

EDELMAN J:   Is this argument any different in substance from the argument that was made in Vella v Commissioner of Police and rejected by a majority that truly open‑textured provisions might infringe the Kable principle because there is no fixed or firm anchor by which a court can attach criteria?

MR WALKER:   At one level of generality, the answer to your Honour’s question is yes, but that is a very high level of generality.  Of course, there is the necessary step of construing a statute and if it is open‑textured or in general terms, that interpretation may well involve the understandable reading so as to involve judicial rather than unjudicial behaviour when a power is given to a court.  That, often, would not be a remarkable exercise.  But subsection (4) does not bespeak how there can be, other than an act of selection – and here comes the most important point – from cases which are absolutely equal with respect to everyone’s exposure to the risk of COVID for jurors.  That is the mischief to which these provisions are directed.

So, everyone is equal with respect to the circumstance said to justify this emergency law.  But everyone is not equal with respect to their risk of losing a jury on account of it.  It is in that sense – it is a technical but important sense – that it is arbitrary.  I am not talking about capricious decisions by judges.  That would be impertinent.  We do not mean that.  We mean arbitrary in the sense that there is no rule, or policy, or principle because, notwithstanding what Justice Edelman has asked me about, subsection (3) does not constrain subsection (4) – and for good reason, subsection (4) is the “opening the gate” to an occasion where it might be, for example, the Crown and accused combine to point out why a case is highly unsuitable to a bench trial so as to persuade the judge accordingly. 

So, an open mind is the hallmark of a judge operating under subsection (3) – standing in contrast to the position under subsection (4) where a decision which has permanent effects – see section 116 – is made without any hearing – with no reasons laid down in the statute – and selecting from among an indifferently equal group or class of persons – that is, accuseds facing jury trial during a COVID emergency.  That is our Kable point.

Can I then move to the point concerning section 80 and trials for offences against laws of the Australian Capital Territory. Conveniently on page 230 of the application book, just opposite section 68BA are found the provisions that your Honours hardly need to be reminded of. Section 80 obviously includes the pivotal phrase for our purposes of:

any offence against any law of the Commonwealth –

Section 122, importantly, provides that the Commonwealth Parliament:

may make laws for the government of any territory –

et cetera. Section 122 obviously applies to the Australian Capital Territory. Thus, the possible phenomenon of so‑called direct rule. I do not mean to invoke unpleasant Irish memories, I am pointing out that section 122 as a head of power by the Commonwealth Parliament could regulate everything from parking meters to planning in the ACT and, indeed, from time to time, intermittently does so by withdrawing powers that would otherwise devolve upon the Territory Legislative Assembly under the Self‑Government Act, such as with euthanasia.

Now, finishing in that sense that we say somewhat gingerly in light of the chequered jurisprudential history here, that all laws of the ACT derive their course and effect from laws made by the Parliament of Australia, that is, the laws in effect from time to time which regulate and control the exercise of power devolved upon the ACT Legislative Assembly by a law of the Commonwealth Parliament, including of course to make laws creating offences and providing for their trial and punishment.

EDELMAN J:   That is the only part of Bernasconi that you adopt.

MR WALKER:   Yes, that is right, your Honours, and you will have seen that in our writing.  However, we make no apology for what might be called the highly selective, some might say tendentious, reference back to that now very old case.  When one contemplates some of the propositions in Bernasconi it cannot be that it is all still whole cloth and good and, in particular, the very notion of applying to what I will call a section 122 territory the notion of dependent or tutorially relationship referred to in Bernasconi, for example, is obviously now outmoded and wrong.

But, in our submission, what does matter is to notice what has happened in relation to section 122 many decades, of course, after Bernasconi.  We know in Capital Duplicators that section 90’s exclusivity was, as one can now see clearly from the text, really restricted to the Parliament of the Commonwealth, not including the legislature created by the Parliament of the Commonwealth, being the Legislative Assembly of the ACT.

That, of course, had to do with the wording of section 90 and, in particular, its stipulation of exclusivity in the Parliament of the Commonwealth of excise powers. But we also have section 51(xxxi) in Wurridjal, overturning Teori Tau.  As your Honours have seen in our written submissions at 227 of the application book - I will not take time to catalogue them - similar suggestions can be made with respect to sections 116 and 92.

Now, they are not textually provisions which have something as refractory for our purposes as “any law of the Commonwealth”, but it then leads, in our submission, to the question which was left open in Fittock 217 CLR 508 at 513, to which we have drawn attention. Now, that was a case about the Northern Territory in which the issue arose but did not fall for decision because of a narrower available ground. It is, in our submission, a matter which is squarely decisive of this case, there being no narrow or non‑constitutional ground which would dispose of the matter.

In our submission, it gives rise to this consideration, the nature of the relation between “law of the Commonwealth” within the meaning of section 80 and “laws for the government of any Territory” within section 122, bearing in mind, as your Honours will recall, the significance of section 111 as the means by which the government of a Territory falls for consideration under section 122.

So, the surrender of any part of the State, and that part of the State becoming subject to the exclusive jurisdiction of the Commonwealth – to quote section 111 – is one that is not exhaustive upon the enactment of a Self‑Government Act.  The ACT remains subject to the exclusive jurisdiction of the Commonwealth.  True it is under section 111 it can be

seen that that was in order to distinguish between the Commonwealth and the State whose territory has been surrendered, but exclusive is exclusive and of everyone; it does not mean that there is a paradox or impossibility in granting self‑government by a Commonwealth statute but it does mean that a question is raised as to whether the Commonwealth cannot directly do away with section 80 when it exercises 122 power over the ACT but could do so, as has been held in this case, indirectly by interposing a competent Legislative Assembly to do so.

That, in our submission, is plainly an important issue, and plainly involves questions of relation between Commonwealth and Territory and the meaning of provisions that I have specified – 111, 122 on the one hand, section 80 on the other, together with the others such as 51(xxxi) – all of which, in our submission, combine to raise as an important issue which happens to affect my client vitally, for which this Court should grant special leave. May it please the Court.

KEANE J:   Thanks, Mr Walker.  Ms McCann, I understand that as between you and the Solicitor‑General, the Solicitor‑General is going first.  Is that so?

MS McCANN:   Yes, that is correct, your Honour.

KEANE J:   Yes, Mr Solicitor.

MR GARRISSON:   Thank you, your Honour.  The second respondent says that special leave should not be granted.  We say that the questions are answered by reference to established principles and longstanding authority, and we do not believe the decision below is attended by sufficient doubt to warrant a grant of leave.

There are, in essence, two grounds upon which the applicant relies.  The first is what I will describe as the Kable argument. That ground calls for determination of the proper construction of a repealed provision. The procedure that is embodied in section 68BA is found in no other jurisdiction. However, the concept that in certain circumstances the court may, of its own motion, direct a trial to proceed by judge alone is not novel.

Section 68BA does not on its terms or in its operation undermine the Supreme Court’s independence or impartiality or otherwise depart from the processes that characterise the exercise of judicial power. We say, with respect, that there is no contest of principle.

The argument sought to be advanced by the applicant is directed to the mechanics of a repealed provision and a statutory process by which a decision to order a trial without jury is arrived at by the court. It is important to appreciate that section 68BA did not prohibit jury trials during the emergency period or otherwise enlist the court to achieve any other particular outcome.

EDELMAN J:   Mr Solicitor, what do you say to the point that the first ground raises a question of general principle which is concerned with whether there is and, if so, when it is reached, a point at which provision is expressed so generally that it becomes impossible to formulate legal criteria for the application of that provision, thus contravening the Kable principle?

MR GARRISSON:   We say, your Honour, that it does not arise in this instance because the criteria are in fact well understood and well identified.  The notion that before making an order the court has to ensure the orderly and expeditious discharge of the business of the court is a matter of fact and is otherwise in the interests of justice, takes into account the interests of the parties that are before it, and if one looks at the detailed reasons of the trial judge in relation to why she decided to order a matter, order the trial without a jury, quite an extensive list of criteria, both for and against the decision, was identified and, indeed, both parties had the opportunity to put submissions in relation to those issues.

The power that is given to the court or was given to the court under section 68BA is in fact an order in the form – a power in the form that enables the court to manage its own processes. During the same period, another provision in the Supreme Court Act, section 68B, was also amended. To the extent that there is an assertion of unequal treatment, 68B enables a party, a defendant, to make an application to elect to be tried by judge alone.

To the extent that my learned friend is putting that somehow the operation of section 68BA exposes a party to a risk of losing the opportunity of a trial by jury, the fact is that there are many circumstances in which the court can consider whether or not a trial should proceed by jury or not.

It is of course well known that most jurisdictions have a wide range of provisions dealing with jury trial and when it applies and when it does not. The circumstances in which section 68BA may be enlivened by a judge is not in effect a decision. These are circumstances that may give rise to the issue of whether the matter should proceed by judge alone and it is correct, in my respectful submission, to say that of course the judge is not going to reach that conclusion without having looked at the matters in subsection (3). That is abundantly clear from her Honour Chief Justice Murrell’s reasons which are found up to page 19 of the application book.

The applicant’s argument of unequal treatment takes as its premise that there is a caucus of relevantly identical cases that must be treated the same.  It assumes that the health risks for all defendants were in common and the impact of the administration of justice was the same.  That premise upon which my learned friend relies is simply unable to be established.  If I may take your Honours to the observation by the Court of Appeal at paragraph 232 at page 204 of the application book, it cannot be established that all cases facing delay due to COVID‑19 were relevantly identical. 

At the risk of repetition, one need only have regard to the trial judge’s consideration of the circumstances of the trial before her at pages 17 to 19 of the application book.  It takes little to discern the difference between a criminal trial with one defendant that will run for two days and a criminal trial with four co‑accused and an estimate of three weeks.  If, on the facts of a particular case, a defendant could establish unequal treatment then assuming error is established, that would be capable of being remedied by appeal.  There is nothing in any of that process, with respect, which takes it outside the ordinary principles of the exercise of judicial discretion.

The so‑called two‑tier mechanism that the applicant seeks to rely upon takes the matter no further.  It is actually not possible to discern how, whether or not a notice is given, that there is any relevant unfairness.  The parties are given notice, the parties have an opportunity to present submissions to the court.  The very essence of judicial discretion is the application of principles to an individual case. 

The discretion given to the court is a case management power to make an evaluative judgment based on the facts that exist at that point in time.  It was readily capable of judicial application, and the court at first instance gave careful and sustained consideration to a range of factors.

In relation to the second ground, the section 80 argument, with respect, your Honours, that ground is determined simply on the terms of section 80 of the Constitution.  The applicant attempts to distinguish Bernasconi on a factual basis.  That is not a distinction in principle.  The barrier that, in our respectful submission, the applicant faces is the decision of this Court in Capital Duplicators.  That decision makes it absolutely clear that the legislature of the Australian Capital Territory and, indeed, the Northern Territory, are separate legislatures exercising their own powers.

The proposition that the applicant has put at paragraphs 26 to 28 of the application for special leave regarding the interactions of section 122 and section 80 together with reference to the decision in Wurridjal and, indeed, the subject matter of Capital Duplicators itself is, with respect, a distraction. Section 80 is to be read on its terms. It is expressed to apply to trials:

on indictment of any offence against any law of the Commonwealth -

The offences with which the application was charged and ultimately convicted are offences under a Territory law, namely, the Crimes Act 1900. To the extent to which the applicant seeks to assert some constitutional right of broader application, that proposition has no basis. With respect, the remarkable proposition that, as contained in the applicant’s application, somehow a plain reading of section 80 does not secure:

to Territorians the same basic rights that the Constitution confers on other Australians –

is simply not soundly based, on the observations of Justice Gaudron, who made that comment in Capital Duplicators at page 288. Section 80 plainly applies to the Australian Capital Territory, but it does so on its terms. The position in the ACT is no different to that of the States insofar as section 80 applies to a Commonwealth indictable offence but not to that of a State or Territory.

EDELMAN J:   Mr Garrisson, was Justice Isaacs wrong in Bernasconi?

MR GARRISSON: His Honour got overtaken, perhaps. His Honour was making an observation, which is perhaps an observation that was made at the time. There was no self-government for any Territory in Australia. The position in relation to Papua New Guinea was that it had its own Legislative Assembly and the position in relation to the Territories is that in – you simply look at section 80 on its terms and when read with Capital Duplicators, which says that the Territories, in effect, are standalone legislatures exercising their own powers, then a law of the Territory Assembly is in fact a law of the Territory, it is not a law of the Commonwealth. 

It may well be, ultimately, derived from 122, but the effect of the judgments in Capital Duplicators, including those who dissented in the outcome, is quite clear that the Territories are their own.  Yes, as my learned friend indicated, the Commonwealth has, one might call it, a residual power – it is something more than a residual power – to make laws that will impact on the Territory to amend the Self-Government Act, to pass a law that is then binding on the Territory and perhaps no other jurisdictions. 

However, the fact remains that the argument that is being put that there is a guarantee of trial by jury in the ACT because of the operation of section 80 is simply not sound on the authorities as they stand. Capital Duplicators is clear authority for the proposition that the enactment of a

Territory law does not involve the exercise of Commonwealth Parliament’s legislative power. 

The authorities that have gone since then and, in fact, the impact of finding that section 80 binds the Territory means a fundamental change to the nature and the characterisation of the Territory’s legislative power. That has been a fundamental precept upon which the judicial and administrative framework of the Australian Capital Territory and, indeed, the Northern Territory have been built over some decades. It would – to put it directly, your Honours – be necessary for this Court to overrule Capital Duplicators.

The only other matter that I wished to touch on is the matters raised in the Director’s response in relation to the operation of the proviso.  The second respondent’s position is that it is not necessary for the Court to look at that issue on the grant of special leave, and the present application, we do not believe, is a suitable vehicle for considering that issue and, in fact, does not arise unless the question…..constitutional validity of the provision is determined in favour of the applicant.  Accordingly, we do not propose to put any further submissions on that.  If the Court pleases.

KEANE J:   Thanks, Mr Solicitor.  Ms McCann, do you have any additional submissions to make?

MS McCANN:   No.  Your Honours will see from our response we are simply limited to matters which would militate against leave being granted in this matter.  Unless there are any matters from our response that your Honours wish me to address, I do not have anything further to add.

KEANE J:   Thanks, Ms McCann.  Mr Walker, anything in reply?

MR WALKER:   Yes.  We would not need to seek leave to challenge in any respect Capital Duplicators.  Capital Duplicators had to do with understanding the character of the ACT Legislative Assembly with respect to the wording of section 90 and, bearing in mind that that has to do with what might be called national fiscal provisions and the distribution of powers by the Constitution between State and Commonwealth, it is hardly surprising that that has very little to do with section 111, section 122 and section 80, which does not have any such national distribution of fiscal powers between Commonwealth and State informing it.

The second point is this.  Of course, there is equality of exposure by everyone in the ACT to COVID and of course there are precautions that can be taken.  But subsection (4) says nothing concerning, for example, a subset of cases which can be listed in (a) well‑ventilated courtrooms, (b) reached through methods of ingress that involve no crowding, et cetera, et cetera, et cetera.  In other words, for the matters which are essential concerning the

mischief to which these provisions was directed, there is a class equally affected of cases and an entirely inscrutable means by which some are selected to be exposed to the risk of losing a jury.  If it please the Court.

KEANE J:   Thanks, Mr Walker.  The Court will adjourn for a moment to consider the course it will take in this matter.  Adjourn the Court, please.

AT 1.26 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.31 PM:

KEANE J:   There will be a grant of special leave in this matter.  Mr Walker, how long will the hearing occupy?

MR WALKER:   Assuming no substantial interventions beyond what is already present, a day, your Honour.

KEANE J:   Mr Solicitor?

MR GARRISSON:   Your Honour, I suspect we may require slightly longer than that because I do anticipate that there will be some interventions.  But perhaps if we fix it for a day and see how it goes.  I would have thought a little more than a day.

KEANE J:   All right.  Ms McCann, I take it you are agnostic on this?

MS McCANN:   That is correct, your Honour.

KEANE J:   Very well.  There will be a grant of special leave and the parties should follow the directions of the Senior Registrar in order to enable to bring the matter to a hearing. 

Adjourn the Court, please.

AT 1.32 PM THE MATTER WAS CONCLUDED