Xerri v The King

[2024] HCATrans 3

[2024] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S76 of 2023

B e t w e e n -

BRIAN XERRI

Appellant

and

THE KING

Respondent

STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 7 FEBRUARY 2024, AT 9.03 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR N.M. STEEL appears for the appellant. (instructed by Ryan Payten Le)

MS H.R. ROBERTS, SC appears for the respondent with MS E.S. JONES. (instructed by Solicitor for Public Prosecutions (NSW))

HIS HONOUR:   Ms Roberts, this is your application.  Perhaps you should go first.

MS ROBERTS:   Yes, your Honour.  Thank you.  It is an application, your Honour, for leave to reopen the proceedings in which, of course, the judgment is reserved, to draw to the Court’s attention a provision of the Crimes Act which had been previously overlooked in all the courts, and certainly by the parties, as far we are aware, that the ‑ ‑ ‑ 

HIS HONOUR:   Can I ask you this, Ms Roberts? 

MS ROBERTS:   Yes, your Honour.

HIS HONOUR:   As a matter of housekeeping, I assume you seek to have read the affidavit of Ms Hoy sworn on 5 February.

MS ROBERTS:   Yes, your Honour, I do.

HIS HONOUR:   All right.  Mr Steel, do you object to any part of that affidavit?

MR STEEL:   No, we do not, your Honour.

HIS HONOUR:   Thank you.  Well, that affidavit is taken as read.  I suppose the question – the only question – that I need to, perhaps, know, or have an answer for is, is there any particular reason why it was overlooked?  Or is it just one of those things?

MS ROBERTS:   I think perhaps I would have to embrace “just one of those things”, your Honour.  It came to – it was not raised in any of the previous proceedings, or the proceedings in this Court, and it certainly was not – it was overlooked.  As far as the respondent is concerned, I can say that that is what occurred. 

HIS HONOUR:   So, it did not come up in any researches at trial or in the intermediate Court of Appeal?

MS ROBERTS:   Yes, your Honour.  That seems to be the case.

HIS HONOUR:   Yes, I see.  All right.  Mr Steel, what is your attitude?

MR STEEL:   Your Honour, we do not oppose the application, and, your Honour, I have had the opportunity of reviewing the respondent’s written submissions, and we essentially agree with the respondent’s submissions that section 431A of that provision should be given a fixed time to . . . . . as opposed to an ambulatory one. We also agree with the observations and propositions in the penultimate paragraph of the respondent’s submissions.

We also do agree with the respondent’s concluding submission that section 431 of the Crimes Act does not impact the outcome of the appeal in the matter. So, if the Court wishes to take into account the provision in section 431A for completeness in its decision, we do not oppose that course or the proceedings being reopened for that purpose. Given our position that we accept the resondent’s submissions, we would not propose to file any submissions on behalf of the appellant.

HIS HONOUR:   Thank you for that, Mr Steel. Ms Roberts, what this now comes down to is – given what Mr Steel has quite helpfully said – whether there really is a public interest in us reopening this case in order for the judgment to consider the potential relevance of section 431A.

MS ROBERTS:   Yes.  Your Honour, the respondent found – has taken the view that this was a provision that ought to have been drawn to the attention of the Court for consideration in this matter given its potential relevance, on its face, to the question that was raised in the appeal. 

HIS HONOUR:   So, your submission is the matter of the continuing good administration of the criminal law in New South Wales.  Given its presence, we have to deal with it in some way, but it is fairly obvious which way we are going to deal with it given Mr Steel’s assistance to the Court.

MS ROBERTS:   Yes, thank you, your Honour.  I must say, it was only just before your Honour came on that I understood that that was to be the position taken by the appellant.  We had taken the view, and do take the view, that it was as a matter of the good administration of justice, we ought to have this brought to the Court’s attention.

HIS HONOUR:   If that is your view, Ms Roberts, then I propose to accept your views on that.  I think the Court should show some respect to your office, and if that is what you think we should do, I think we should do.  I am going to now deliver my judgment in this matter.

This appeal was heard by a Court comprising Chief Justice Gageler and Justices Gordon, Gleeson, Jagot and myself on 18 October 2023.  The Court reserved its judgment then.

By an application dated 5 February 2024, the respondent Crown seeks to reopen this appeal on a limited basis to permit the filing of short written submissions which will raise, for the first time, the potential relevance of section 431A of the Crimes Act 1900 (NSW). In an affidavit accompanying the application, Ms Jennifer Hoy, a solicitor employed by the Director of Public Prosecutions in New South Wales, explained that the Crown only became aware of the potential relevance of the provision on 30 January 2024.

Two matters should be mentioned at this stage. First, the appellant consented to the making of the application. Secondly, section 431A is potentially relevant to the case the appellant seeks to make out; it does not advance the position of the Crown. In that respect, the Crown sought nonetheless to raise it as a model litigant. Such conduct is both appropriate and correct and should be encouraged.

Before me, the appellant very helpfully submitted that he supported the submissions made by the Crown that section 431A should not make any difference to the outcome of this appeal. Nonetheless, Ms Roberts, SC, appearing on behalf of the Crown, made it clear to me that in the interests of the good administration of the criminal law of New South Wales, the Court nonetheless should deal with the provision.

In the case of Re Culleton (2017) 91 ALJR 302, Gageler J set out the applicable principles to be applied in considering whether to permit a party to re-open an appeal to this Court. His Honour relevantly said at paragraph 23:

To justify reopening, exceptional circumstances must be shown.  Orderly conduct of any proceeding in the High Court requires that all substantial issues be identified in advance of any hearing before the Full Court.

In my opinion exceptional circumstances exist here which justify the very limited reopening sought by the Crown. They are the potential relevance of section 431A; the need for the Court to be fully aware of all laws that may bear upon the outcome of this appeal; the conduct of the Crown in candidly bringing to the attention of the Court a section of the Act which does not potentially support its interests; and the very limited nature of the reopening that has been sought. I will accordingly make the following orders:

1.The proceedings be re-opened to allow for the filing of supplementary submissions by the Respondent in the form annexed to the affidavit of Jennifer Ann Hoy affirmed on 5 February 2024.

2.The supplementary submissions described in Order 1 be filed within 1 working day of Order 1 being made.

Mr Steel, you may have seen that there was provision for you to file your own written submissions, but you do not propose to do so in all the circumstances?

MR STEEL:   We do not, your Honour.  We think the respondent’s submissions cover all the issues, your Honour.

HIS HONOUR:   I am very grateful for your assistance, Mr Steel.  On that basis, I will not make that order.  There is no other order I need to make, Ms Roberts? 

MS ROBERTS:   No, thank you, your Honour.

HIS HONOUR:   All right then.  I thank counsel for their assistance today.  I am particular grateful to Mr Steel for what you have said.  I will now adjourn the Court. 

AT 9.12 AM THE MATTER WAS CONCLUDED