X7 v The Queen

[2015] HCATrans 109

[2015] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S313 of 2014

B e t w e e n -

X7

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MAY 2015, AT 10.20 AM

Copyright in the High Court of Australia

MR R. RICHTER, QC:   If the Court pleases, I appear with my learned friend, MR G.D. WENDLER, for X7.  (instructed by Weller & Weller Solicitors)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR C.P. O’DONNELL, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ:   Yes, Mr Richter.

MR RICHTER:   If the Court pleases, your Honours both having sat on X7, there is a wealth of familiarity with the background to it in the material and I do not need to go into that.  Your Honours would also be aware of the fact that part of the case stated recited the following – and this is at paragraph 11 of the case stated and we will have copies for your Honour if your Honours desire it, but it sets out that the plaintiff was administered an affirmation under section 28(5) of the ACC Act and was asked and answered questions which included detailed questions about matters concerning the subject matter of the offences with which he has been charged.

So that we start off with the notion that the case involved a situation in which an accused was asked detailed questions, not anodyne questions about name and address.  He was asked detailed questions about the subject matter of the offences with which he had been charged.

KIEFEL J:   That may be so but the primary judge found that the evidence showed that nobody associated with the investigation was present at the hearing and there was no evidence of dissemination or directions as to confidentiality and, I mean, they are more pertinent to the question of stay, are they not, Mr Richter?

MR RICHTER:   They are, in one sense, depending on how you approach the question of stay in a situation where there has been what I might describe as effectively a constitutional contempt, more of the Moti variety than of the Jago variety. 

KIEFEL J:   Is this to suggest that a stay is to be used as a kind of penalty?

MR RICHTER:   It is not so much a question of a penalty.  Where you have an unpunished contempt which cannot be purged, for example, it is not a matter of punishing the Executive.  It is a matter of recognising that an accused person cannot have the kind of trial that section 80 provides for in this sense:  that where the accused has been questioned on oath and has been forced to commit himself to certain propositions, that necessarily ties that accused’s hands in terms of the choices to be made at any future trial.

KIEFEL J:   But then you do not need to resort to the question of contempt.  That becomes a platform in other contexts for injunctions that might issue to prevent matters going forward, but here where you have a criminal trial about to commence and you are talking about a stay, it is either there is a likelihood of prejudice or there is not.  Is that not the question?

MR RICHTER:   Well, there is a likelihood of prejudice and the court must find that there is a likelihood of prejudice simply by the fact that the person has been asked about the very matters that are at stake.  So, there is a likelihood.  The issue here on why special leave ought to be granted is that once you have established a likelihood, and there is a likelihood almost by definition because any choices by an accused person have been constrained by what has been sworn before - he cannot go against it lest he be charged with false swearing, for example - his hands have been tied. 

So a likelihood exists and there is no question that a likelihood exists and I would have thought, with the greatest respect, that the majority in X7 acted on the basis that there is a likelihood and that is why they ruled in the way that they ruled in terms of the propriety of holding the hearing in the first place.  So the question of likelihood is there. 

The real question that this raises is once there is such a likelihood, if there is a contempt of the nature that existed here, and the court below of course recognised that there was contempt, one asks the question what kind of contempt is it?  It is not scandalising the court, it is not doing anything other than interfering with the course of justice, federal course of justice. 

That is the only contempt that exists here.  That sort of contempt needs to be looked at not in the way that the Court of Criminal Appeal looked at it on the basis - on the basis of, well, it was all done in good faith.  Good faith has nothing to do with it.  Good faith has nothing to do with this kind of contempt.  Of course, it is not a defence, just as it is no defence for anyone who is charged with contempt of court to say “All I was trying was to get him to tell the truth”.  That is not a defence to a contempt charge. 

So the nature of the contempt in this particular case is of the greatest significance because it goes to the heart, not so much of misconduct, as it were, but of deprivation of an accused in the context of an accusatorial trial as to his or her choices to be made, and that is why prima facie the situation is not one where you need to demonstrate factual prejudice as in requiring an accused to say, “Well, what I said there was this and what I would like to say here is that” and so on.  That would be a ridiculous process, in my respectful submission. 

But what would be required in order, not to cure the contempt but to overcome the problem, would be precisely the notion that it would be demonstrated that the questioning and the answers were in fact anodyne, not to be assumed that they are anodyne, but to demonstrate it.  We say it is akin to the sort of proposition that arises from a consideration of section 138 of the Evidence Act where one has unlawfully or improperly obtained evidence.  Once it is demonstrated that the evidence has been unlawfully or improperly obtained, the burden shifts, as it were, to the proponent of that evidence to demonstrate that it is more desirable to admit it than not to admit it.

FRENCH CJ:   But at the level at which you are pitching the argument it is not a question of looking at whether the evidence is anodyne or not.  You are talking about an incurable compromise of the adversarial process.

MR RICHTER:   Precisely.  I am talking at that level, but at that level the question of whether or not there ought to be a stay.  If it was demonstrated ‑ ‑ ‑

FRENCH CJ:   It must always be a stay if you are talking at that level.

MR RICHTER:   Not necessarily, because – I mean, if there is a contempt and it is a serious contempt, and this is a serious contempt not because of the fact that it was done mala fides – we do not even need to go there - if it is a serious contempt that undermines the process contemplated by a Chapter III trial, then yes, you would have a stay ‑ ‑ ‑

FRENCH CJ:   And a permanent stay because it could never be cured.

MR RICHTER:   ‑ ‑ ‑ and a permanent stay, yes, your Honour.  That is why this requires special leave, in my respectful submission, because ‑ ‑ ‑

KIEFEL J:   This does not follow from X7, does it?  X7 holds that a person should not be examined, that you should not construe legislation to allow for examination of a person who has been charged because there will probably be effects.

MR RICHTER:   Understood.

KIEFEL J:   But the question here is the very practical one – now faced with the trial, the examinations having occurred and having touched upon the subject matter, can the trial proceed without the accused being prejudiced in his trial?  That is the question.

MR RICHTER:   Well, the answer is in these circumstances it could not, simply because – for the various reasons for which relief was granted, or that declarations were made in X7 ‑ ‑ ‑

KIEFEL J:   But it does not automatically follow from X7 that in any case where an examination has taken place a stay must follow.

MR RICHTER:   I agree with that, with respect, but in a situation in which the examination has taken place and it constitutes an interference with the course of justice, in the sense that led to the decision in X7, in other words the emphasis is not on the mala fides of the Executive, for example, but the emphasis has to be on the rights of an accused person in a trial.  Now, that was canvassed very significantly in Hammond’s Case, of course, and it was canvassed in X7, because if you look at it in terms of a fair trial for an accused person, the circumscription of choices by an accused person as to the kind of instructions that he could give as to the choices that he or she could make in terms of giving evidence or not ‑ ‑ ‑

KIEFEL J:   What was the evidence as to these matters put before the primary judge in ‑ ‑ ‑

MR RICHTER:   There was not any.  So, in one sense, the notice of appeal might need to be amended to allow for the possibility of a remittal.

KIEFEL J:   Well, that is the difficulty, is it not, because the reliance here has been simply upon an automatic effect assumed to occur from the decision in X7.

MR RICHTER:   An automatic effect assumed to occur from established facts, namely that the examination related to these charges, and secondly, that it constituted contempt.  It is the combination of those two things that makes it imperative to grant a stay, unless the Court of Appeal had been of the view, as it possibly should have been, well, let us examine the precise nature, because once you do not examine the precise nature of what was asked and what the circumscription is, you act on the basis that the accused’s rights have been circumscribed in a way that is contrary to Chapter III - that is number one - and number two, he does not have a remedy.  There is no remedy there.  It is for those reasons that it is important. 

In other words, X7 left unfinished business.  As your Honours are aware, of course, it was only his Honour the Chief Justice and Justice Crennan who dealt with the constitutional validity on the second question in X7, having decided the first question in the way that was contrary to the decision of the majority. 

But the constitutional question does arise in this sense – and we have served 78B notices and there is no response or the response is we will await – but the constitutional question really does arise, because if there has been a commitment of an accused person to a certain account in an executive body without power, if the accused had been committed to a certain course of evidence, either the accused can say, yes, well, it does not matter, or the accused can say, well, no, what I said there is wrong, but either way, it commits the accused to running a trial in a way that is not contemplated by Chapter III.

So implicit, in my respectful submission, in the judgment of the majority in X7 is that if the breach amounts to in fact a contempt of court in the sense of an interference with the course of justice, then had the first question been answered differently and the second question been addressed, in my respectful submission, the majority would have been obliged – obliged by the reasons given in Hammond’s Case and in other cases – and indeed in X7 itself in the joint judgment of Justice Hayne and Justice Bell – that if you look at it from an accused person’s point of view and the rights an accused person has, you will have a situation where that person’s choices have been unalterably changed and fixed by the fact that the process did take place.

Now, that is a question that was left as unfinished business and it is still unfinished business.  One cavils at the notion of an automatic right to a permanent stay.  There is no point in saying there is an immunity – a permanent immunity from conviction for serious crime.  That does not answer it in a situation where the wrong is a constitutional wrong, and in terms of bringing the law into disrepute it is that aspect of permanent stay jurisprudence that really comes into play that there has been a constitutional breach.  Now, our American brethren, of course, deal with it in different ways, but so far as the process in Australia is concerned, we do not have a situation where we have sufficient authority on this issue.

KIEFEL J:   Is there not, though, a distinction between doing something which affects the process of a criminal trial as such and something which affects the institutional integrity of the court.  You might have an effect on one but not the other.  The other – the effect on the court would only come into play where the court is somehow disabled from ensuring, as far as it can, that the criminal trial process can ‑ ‑ ‑

MR RICHTER:   Yes, which is precisely this point, with respect; the court is disabled from curing ‑ ‑ ‑

KIEFEL J:   No, but to be a Chapter III matter it has to be directed to disabling the court, not that there is some effect upon the process before the court.

MR RICHTER:   Yes, I agree with that.  It has to disable the court, but the submission that we make is that a court’s powers in running a Chapter III trial are circumscribed in such a way that it is impermissible, in an impermissible way and an incurable way.

FRENCH CJ:   Mr Richter, at page 69 of the application book in paragraph 15 of the respondent’s submissions there are three propositions set out with which it is said the applicant has not taken issue.  Do you accept that?

MR RICHTER:   I do not accept that we have not taken ‑ ‑ ‑

FRENCH CJ:   Do you agree or disagree with those propositions?

MR RICHTER:   I disagree with those propositions.

FRENCH CJ:   Which one?

MR RICHTER:   Both of them, it is inherent ‑ ‑ ‑

FRENCH CJ:   Well, there are three.

MR RICHTER:   Yes.  Well, the first one – I am sorry, at page 69, I am sorry, your Honour?

FRENCH CJ:   Yes, page 69, paragraph 15.  It is just an extract from the judgment of Chief Justice Bathurst, I think.

MR RICHTER:   Yes.  Those matters that are canvassed there are essentially common law matters to be taken into account when dealing with an application for a stay, but they are not constitutional in the sense in which we say there is a constitutional breach here.

FRENCH CJ:   Well, you qualify them by reference to the character of the breach.

MR RICHTER:   Yes, your Honour.

FRENCH CJ:   I am sorry, can I ask you to state succinctly what that qualification is?

MR RICHTER:   Well, the qualification is that in terms of fairness or oppression, where there is constitutional breach in the nature of an interference with the right to trial as it is provided for in Chapter III, there is a presumed prejudice and there is no requirement to demonstrate an actual prejudice.  There is the possibility of a demonstration that there is no prejudice at all but that the burden shifts, as it were. 

There is a presumption of prejudice which produces or invokes the intervention of the court, and that applies in situations - for example, in the Moti situation where you could have a fair trial all right but because of the manner in which Moti came to Australia, the prosecution was permanently stayed.  There was no demonstration of prejudice at all in terms of the trial process, and Moti is very, very important in that sort of sense. 

As to the Moti discretion issues, they were rather different in the sense that in Moti, of course, the Court found that there had been connivance by the Australian authorities, there had been some degree of moral turpitude in his presence in Australia.

KIEFEL J:   There are a few degrees of separation here.

MR RICHTER:   There are a few degrees of separation here except for this, that the constitutional breach that we allege occurred here is of the same nature in the sense that it is irreparable and because of its nature it presumably impacts on the rights of an accused person.  There is that presumption that it does, and that it is not insignificant because it involved a contempt, namely an interference with the course of justice by the Executive. 

But the emphasis on demonstrating prejudice as the end all and be all of a determination of whether or not a permanent stay is to be ordered is what is, in our respectful submission, wrong because it depends entirely on what the alleged breach is.  There will be breaches in which evidentiary exclusion is an appropriate remedy.  There may be breaches in which nothing can repair the damage done to an accused’s rights, and X7 is a case in that category, in my respectful submission. 

So what we depart with is the notion that the Court of Criminal Appeal got it wrong in this sense.  If we go to page 50 – sorry, commencing at page 48 where his Honour says this at paragraph 105:

X7 (No 1) in my opinion is authority for the following propositions.  First, as a matter of construction the ACC Act did not permit an examination of a charged person about the matters for which they had been charged.  This was because such an examination fundamentally altered the accusatorial judicial process. 

We emphasise that.  His Honour accepts that that was the very reason as to why the court ruled the way it did.  It:

fundamentally altered the accusatorial judicial process.  The accused could no longer decide the course to adopt according only ‑ ‑ ‑

FRENCH CJ:   I think we are familiar with that, and your time is up, if you can just wrap up now, Mr Richter.

MR RICHTER:   Yes, well, it runs fast when you adding something.  The court’s insistence on actual unfairness, in my respectful submission, is not apposite in this case and not appropriate, and time being up, I will sit down.

FRENCH CJ:   Thank you, Mr Richter.  We will not need to trouble you, Ms Abraham.

The applicant in this case complained that the Court of Criminal Appeal of New South Wales had erred in upholding the primary judge’s decision to refuse a stay on the basis that the applicant could not demonstrate any threshold practical unfairness at trial.  He complained that the interference with the adversarial process had a constitutional dimension.  He also complained that the Court of Criminal Appeal had erred in holding that the unpurged contempt in the court by the Commission was of no legal consequence.  In our view, the absence of practical unfairness arising at trial is always a relevant consideration in the exercise of the discretion to refuse a permanent stay.  We are of the view that no grounds have been disclosed which would warrant the grant of special leave.  Special leave will be refused.

We will adjourn to reconstitute.

AT 10.44 AM THE MATTER WAS CONCLUDED