X7 v Australian Crime Commission & Anor [2012] HCATrans 205

[2012] HCATrans 205

[2012] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S100 of 2012

B e t w e e n -

X7

Plaintiff

and

AUSTRALIAN CRIME COMMISSION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 21 AUGUST 2012, AT 9.52 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:   Your Honour, I appear for the plaintiff.  (instructed by John D Weller & Associates)

MR M.J. O’MEARA:   May it please the Court, I appear for the defendants.  (Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Wendler.

MR WENDLER:   Since we were last before your Honour there has been prepared a draft case stated and that has identified two questions for consideration by the Full Court.  There has also been filed a short minutes of order which ‑ ‑ ‑

HIS HONOUR:   Yes, can you just explain one thing, Mr Wendler, to me?  Looking at the Australian Crime Commission Act can you just look at section 30, in particular, subsection (5)?  Now, my understanding is that the Commonwealth relies upon that, amongst other things, as an answer to your complaints as to impermissible interference with the Chapter III jurisdiction.  How do you respond to that?

MR WENDLER:   In this way.  The first question is a construction question and we effectively embrace the treatment by Justice Mansfield at first instance and also Justice Spender in his dissenting judgment.  The construction question will turn on the issue whether there has been effectively an abrogation of a fundamental right, namely that the administration of justice not be interfered with.  The curial process once it is activated by the laying of a charge must take its normal course.  So, irrespective of the section 30 and, indeed, other parts of Part II, Division 2, as a matter of construction our submission is that the Act does not make in clear and unmistakable terms the abrogation of that fundamental right. 

So that is the construction question, irrespective of the use immunity position and irrespective of the fact that such evidence, once objection is taken, cannot be used in the curial process against the person being examined.  So if the answer to that question is in the affirmative then, of course, that is not the end of the inquiry.  That raises the issue as to whether there is a constitutional impediment arising out of Chapter III concerning whether or not the interrogation – parallel interrogation – of a person charged is an interference with either the implication of Commonwealth judicial power or, indeed, the exercise of it once a person has been committed for trial.  So section 30 really begs the question, so to speak.  I do not think it answers it.  It is a matter of some importance ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that.  So you fix upon, as it were, the concurrent activity?

MR WENDLER:   Yes.  If one breaks up the process you have an executive inquiry which leads to a charge.  When that process is over the charge commences a judicial inquiry.  Now, that judicial inquiry - there cannot be a parallel system, so to speak.  In the history of Australian constitutional law the judges have jealously guarded their sphere of operation.  It is not a situation where it has been subcontracted out, as it were, to a non‑judicial officer so that will be the controversy before the Full Court.

HIS HONOUR:   Anything you want to say on that point, Mr O’Meara?

MR O’MEARA:   Just to add to the two parts of the Crime Commission Act which the defendants rely on – firstly, the section your Honour pointed out to Mr Wendler, that is section 30(5), which deals with the direct use, and secondly, section 25A(9), which permits an examiner to make ‑ ‑ ‑

HIS HONOUR:   To give directions.

MR O’MEARA:   To give directions and such a direction was made in this case.  The contention of the defendants will be that the combination of those two things has the effect that there is no risk of the interference of judicial process.

HIS HONOUR:   The provisions of that nature, those two sections, were not in the other legislation which was at stake in Hammond some years ago?

MR O’MEARA:   No, and further there were some factual aspects of Hammond including, for instance, the presence of the police officers involved in the prosecution during the examination - the Commission which make it distinct from this case.

HIS HONOUR:   All right, well I think I understand what you have both said.  Now, the draft case states two questions.  I will sign the case if it is re‑engrossed without “Draft” on the front.  That can be deposited with the Registrar and I will sign it in chambers and date it.  Then there are submissions as to what order should be made of a procedural nature.  Are they acceptable to both sides?

MR O’MEARA:   They are yes, thank you.

HIS HONOUR:   I think all I need to do then is make orders in terms of paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the draft order accompanying the written submissions filed on 20 August by the plaintiff.  Now, do I need to make any special provision about the anonymisation, if I can use that word, of the plaintiff?

MR O’MEARA:   On the last occasion your Honour made an order for the anonymisation, so I think that has been taken care of.

HIS HONOUR:   Right, and that will continue, I suppose, until further order.  The only other order would be that the costs of today be costs of the case stated.

MR WENDLER:   Just one other on that procedural matter, because the rules do not specifically set out the format of the submissions to be filed in such an application or process, I take it that we just follow form 27A, which is the appeal form, with the necessary adjustments?  Regulation 27.8 deals with this type of proceeding, but the regulations do not deal, or nor do the forms deal with the format of the submissions.

HIS HONOUR:   The format of the submissions would just be in the ordinary form, yes.

MR WENDLER:   Form 27A with necessary adjustments, I assume?

HIS HONOUR:   Yes, I think so.

MR WENDLER:   Yes, thank you.

HIS HONOUR:   All right.  Is there anything else?

MR O’MEARA:   Not for my part, your Honour.

HIS HONOUR:   Thank you, gentlemen, I will now adjourn.

AT 10.03 AM THE MATTER WAS ADJOURNED