Wilkie v The Queen

[2005] HCATrans 849

[2005] HCATrans 849

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S459 of 2005

B e t w e e n -

DANIEL WILKIE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 9.45 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR R.G. McHUGH, for the applicant.  (instructed by Speed & Stracey)

MR A. ROBERTSON, SC:   May it please the Court, I appear with my learned friend, MR K.M. RICHARDSON, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   …The case raises for determination the familiar technique which is required in a constitution of drawing lines and raises in particular the need to draw a line where, by definition, in light of increasing technological flexibility and choice, there will be some cases apparently very similar to each other which nonetheless will fall on opposite sides of a line.

GLEESON CJ:   Mr Walker, just before you go into the merits of your section 80 argument, could you remind us of the current state of proceedings in relation to the trial against your client?

MR WALKER:   The Crown case proceeds at a pace which, according to the affidavit evidence, has the Crown estimating these two witnesses being called, if that is the right expression, recommencing the 17^th of this month.

GLEESON CJ:   I just read in the newspaper from time to time that the trial is proceeding.

MR WALKER:   Yes.

GLEESON CJ:   Is it proceeding today?

MR WALKER:   Yes, as I understand it.

GLEESON CJ:   Or this week or next week?

MR WALKER:   It is certainly being proceeded this week.

GLEESON CJ:   How long is it expected to last?

MR WALKER:   Your Honour, the evidence is to the following effect, that according to the Crown it expects to conclude its case by about 2 November 2005.  Now, as to phases of a trial – possible phases of a trial beyond that, we cannot say.

HEYDON J:   I thought there was evidence that it was going to finish within eight to 12 weeks.

MR WALKER:   Yes, that was an estimate which, given where things are to date, leads to the affidavit evidence that the Crown expects to conclude its case by about 2 November.  Now, the two witnesses in question are usefully described in the same affidavit – I am referring to the affidavit of Ms Curran, filed on behalf of the Director.  In paragraph 6 she describes there being 30 remaining witnesses ‑ ‑ ‑

GUMMOW J:   Well, you see what one is coming to, do you not, Mr Walker?

MR WALKER:   Yes, of course.

GUMMOW J:   So why should we intervene now?

MR WALKER:   Your Honour, if there is no intervention now, then the point remains as a point requiring to be agitated at a stage where there will have been forensic effort potentially to be wasted, and to be wasted in a way which is obviously much more grave than is the case, for example, of aborted civil proceedings.  The practical question is of course can there be intervention now which is of utility to an ongoing trial, and here it is significant for me to make it clear to your Honours that my instructions are firm to the effect that we wish the present trial to continue.  We do not wish the trial to be aborted.

GUMMOW J:   You might succeed at trial.

MR WALKER:   Of course, that is a reason to wish the trial to continue.  As your Honour points out ‑ ‑ ‑

GUMMOW J:   Well, why should we labour with what might be a moot outcome?

MR WALKER:   I was about to say, as your Honour points out that may render the whole matter hypothetical.  Nonetheless ‑ ‑ ‑

GUMMOW J:   Now, if you are convicted the conviction is no conviction because it is in the face of the Constitution.

MR WALKER:   Yes, your Honour, but that would require of course an exercise to be undertaken which, in that event, will involve major forensic effort and strain, not only on the parties but also obviously on a jury.

GLEESON CJ:   How does the trial continue?  Let us suppose you get a grant of special leave.  Then the current state of the Court’s list is that - yesterday I sent around the proposals for the December sittings of the Court.  If this matter were granted expedition it would be put in the list for February and we would hear argument and presumably reserve our decision.  The trial would be over by then, would it not?

MR WALKER:   Yes.  The only way in which it would not be over is if there could be tolerably considered - if it could possibly be contemplated to have an adjournment with all the evils of an adjourned trial ‑ ‑ ‑

GLEESON CJ:   Well, exactly.  You were counsel in the case of Rich and Silbermann.

MR WALKER:   Yes.

GLEESON CJ:   In which Justices McHugh, Heydon and I, on 17 June, said that the fragmentation of trials by appeals against interlocutory rulings or on interlocutory matters is inappropriate other than in the most exceptional cases.

MR WALKER:   A proposition which I think the record shows I accepted without qualification then and do today.

GLEESON CJ:   Then why is this a most exceptional case?

MR WALKER: The first thing is that it is a novel and important point and it arises in relation to an objection on our part, not based upon mere practice and procedure or a statute but upon the Constitution. That is the commencement of demonstrating that it is exceptional – it certainly places it into an exceptional, that is small category.

The second is a little more difficult to characterise as rendering it exceptional, but in combination with the first does lend it that character.  The second is that, as your Honours have seen from the material, these two witnesses are either the most important or absolutely critical witnesses to the Crown case.  In our submission, it is that character which lends the prospect of the matter proceeding without early intervention by this Court as one holding out the waste involved of an unconstitutional aspect spoiling the whole of a trial.

GLEESON CJ:   You could have a case.  Indeed, in some civil actions you do have cases in which witnesses’ evidence is taken from overseas by video link because they are immobile.

MR WALKER:   Yes.

GLEESON CJ:   Quadriplegics confined to a hospital bed.  Does that mean that you just could not try a person for a federal offence in Australia if an important witness was in that situation?

MR WALKER:   Yes, that is an unavoidable implication.  Indeed, it is expressed in what we submit is the intractable meaning of “held in the State”.

GLEESON CJ:   But your proposition is the trial is not held in a State if evidence is taken by video link from a witness who is outside the State.

MR WALKER:   Yes, but that is because I am arguing on the basis of evidence taken by video link, as opposed to the quite different process of material being gathered which is able then to be tendered as evidence from people who are overseas, and if statutes permit the taking of evidence by what I will call deposition overseas, and indeed interstate, the point is the same for the constitutional purpose, then there is no objection.

It is that part of the trial which is, to use the technical jargon, real time evidence being given where the jury is, as it were, instructed that this is the evidence as you hear and see it, as opposed to, for example, an ERISP tape which very familiarly are played at great length before juries, where they know this records an event which occurred before criminal proceedings, out of court, in different circumstances, not the courtroom and not the forensic obligations and dynamics which applies to testimony being given by a witness at a trial.

GUMMOW J:   If the federal offence was committed outside Australia, which is entirely possible these days, there are various legislative provisions.

MR WALKER:   Or many elements of a federal offence outside Australia.

GUMMOW J:   Well, in some cases all of them.

MR WALKER:   Yes.

GUMMOW J:   What happens then?  Parliament can prescribe ‑ ‑ ‑

MR WALKER:   Your Honour, Parliament would need to prescribe, in our submission ‑ ‑ ‑

GUMMOW J:   The place or places.

MR WALKER:   Yes, quite so.  Those places, in our submission, bearing in mind the focus on a jury in section 80, could not be a place outside the legislative capacity of the Commonwealth of Australia to compel the summoning of a jury.

GUMMOW J:   I think you are rather overestimating the significance of the word “held”.  It is just a question of venue.

MR WALKER:   Your Honour, there is no doubt that ‑ ‑ ‑

GUMMOW J:   You have to really say it is not by a jury, and that brings you to the United States situation, where there is actually a right of confrontation which has not been read in the way you would have it read.

MR WALKER:   It may be that would be an argument against us, your Honour, but we have to come down to the question of jury, but as your Honours have seen from our written outline we seek to avoid that as being involved in our argument.  In our submission, this case does not directly involve any proposition about what “jury” means in section 80.  It does involve a matter of venue, but not mere venue, by reason of the two words “held in”.  That will not, in our submission, spill into the question of jury, but such is the importance of section 80, in my submission, that the very fact that the concept of “jury” and the limits of – the notion of “jury” in section 80 may be raised in argument, is in fact a reason why special leave should be granted, a reason why it is a self-evidently important point transcending anything particular about this case.

Your Honours, I have tried to answer the questions that have been addressed to me from the Bench in relation to what I will call the utility of granting a leave now, and in that, of course, I also include, to capture what the Chief Justice has drawn to attention, the practicability of it being of assistance, bearing in mind the firm position we take that we wish this trial to continue.  Now, whether continuation means the odd adjournment here or there is not the point.  What looms obviously is something of an indefinite and far longer nature of a kind that we do not court at all.

We acknowledge that that is a difficulty.  We acknowledge that whether this Court can realistically exercise the discretion to grant special leave does turn upon practical matters of the kind that the Chief Justice has raised.  They are not matters which obviously I can make submissions about, except to urge that this is a case where the trial process is being threatened, in our submission, by the possibility of a serious unconstitutional step being taken of a kind which, if this Court were able to give it the early attention which the legal nature of the issue warrants, then this would be an appropriate occasion for that highly exceptional

jurisdiction of fragmenting criminal process to occur.  May it please the Court.

GLEESON CJ:   Thank you, Mr Walker. 

On 17 June 2005 in the case of Rich & Anor v Australian Securities and Investments Commission, Justices McHugh, Heydon and I had dismissed an application for special leave to appeal, and in dismissing that application we said:

The fragmentation of trials of this nature by appeals against interlocutory rulings of trial judges is inappropriate other than in the most exceptional cases.  The Court of Appeal regarded this case as exceptional and gave leave to appeal to that court.  The case is not sufficiently exceptional to warrant a grant of special leave to appeal to this Court.  The application is refused with costs.

The same considerations apply to the present application.  We are of the view that the case is not sufficiently exceptional to warrant a grant of special leave to appeal to this Court, having regard to the circumstances of the currently pending part‑heard proceedings against the application.  The application is refused.

Mr Walker, I happen to know that there were a couple of other applications by people who I think are co-accused, is that right?

MR WALKER:   I am afraid your Honour has the advantage of me.

GLEESON CJ:   I see.  They were made fairly recently and after your application.  I presume that unless the legal advisers to the parties to those applications think that there is some serious ground for distinguishing their position from the position of your client, they will be withdrawn.

MR WALKER:   Yes.  Your Honours, my learned junior is in one of those cases.  Perhaps he should respond in particular to that.

GLEESON CJ:   He does not need to respond.  He can just take that on board.

MR WALKER:   Thank you, your Honour.

MR ROBERTSON:   Your Honour, may I say one thing?  I think the order your Honour made was that the application be dismissed with costs.

GLEESON CJ:   I just said the application is dismissed.

MR ROBERTSON:   I beg your Honour’s pardon.

GLEESON CJ:   Mr Walker had drawn my attention to that.

MR ROBERTSON:   Thank you.

GLEESON CJ:   We are going to adjourn for a couple of moments to reconstitute.

AT 10.01 AM THE MATTER WAS CONCLUDED