Yeo v A-G for the State of Queensland

[2007] HCATrans 593

[2007] HCATrans 593

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B40 of 2007

B e t w e e n -

RAYMOND YEO

Appellant

and

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

Respondent

GLEESON CJ
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 OCTOBER 2007, AT 10.03 AM

Copyright in the High Court of Australia

MR P.E. SMITH:   May it please the Court, I appear for the appellant.  (instructed by Fisher Dore Lawyers)

MR W. SOFRONOFF, QC, Solicitor‑General for the State of Queensland:   May it please the Court, I appear with my learned friend, MR J.M. HORTON for the respondent.  (instructed by Crown Solicitor for the State of Queensland)

GLEESON CJ:   Now, you have an application, I think, Mr Solicitor.

MR SOFRONOFF:   I do.  Do your Honours have our brief written outline on the application?

GLEESON CJ:   Yes, we have that.

MR SOFRONOFF:   I do not know that it is necessary for me to add anything to that.  May I take your Honours to the documents in the appeal book.  There were two appeal books that we were given.  The later one had some misprints in it – that is to say some pages out of place and missing.  So the references I have given in the written outline are to the appeal book that was at least served on us on 13 September.  It is the one published on two sides of the paper and it is 343 pages long.  Could I take you first to the order that her Honour Justice Philippides made, which is at page 319.

GLEESON CJ:   I think we are not singing from the same song sheet.

MR SOFRONOFF:   No.  I will use the other book, your Honours.  It is page 285, I think.

GLEESON CJ:   Yes.  We have that.

MR SOFRONOFF:   If your Honours have that order in front of you, you will see that her Honour made two orders.  The first is not really an order, it is an indication of satisfaction that the Act requires that Mr Yeo is a serious danger to the community in the absence of an order, and the second order that she made is that he be detained pursuant to section 13(5)(a).  If your Honours then go to the notice of appeal, which ought to be at 286 ‑ ‑ ‑

GLEESON CJ:   Yes, it is.

MR SOFRONOFF:   ‑ ‑ ‑ your Honours will see that the only appeal was against the detention, not against the finding of fact that Mr Yeo constituted a serious danger to the community.

GLEESON CJ:   And the order sought in paragraph 3 on page 287 was a supervision order?

MR SOFRONOFF:   Yes, and that is reflected also in Justice Helman’s reasons ‑ ‑ ‑

KIRBY J:   Query whether the first so‑called order was a judgment or order within the Constitution.

MR SOFRONOFF:   Quite, your Honour, but the point is that – I accept that, your Honour, it is really a finding of fact rather than an order constituting a command.  But if your Honours go to Mr Justice Helman’s reasons at paragraph 13 of the reasons at page 295, your Honours will see in the second sentence of his Honour’s reasons that what was sought on appeal was a supervision order, consistently with the notice of appeal.

GLEESON CJ:   Well, then, if you go to page 308 ‑ ‑ ‑

MR SOFRONOFF:   Then we go to page 308, the notice of appeal to this Court, and the consequence is that if the appeal is allowed in this Court and the matter is remitted to the Court of Appeal, the appellant will be seeking the Court of Appeal to order that a supervision order be made rather than a detention order, and that has already been done by Justice Mullins upon the review that took place, the reasons having been published just recently.

KIRBY J:   Is there any possibility that you will be appealing the order of Justice Mullins?

MR SOFRONOFF:   Your Honour, I cannot preclude that.  I have sought instructions as late as this morning.  I do not have instructions.  I am not being in the least bit cagey about it, so all I can say is that the matter has not been considered by the person who has to consider it and so I cannot close the door on the possibility of any appeal.

KIRBY J:   There are a whole series of possibilities that might eventuate.  You might get instructions to appeal and appeal.  The matter might then go back to the Court of Appeal on that process.  The present appellant might himself on reflection find some of the conditions that are imposed too arduous and may seek to appeal from Justice Mullins’ orders and/or the appellant might, having regard to the rigour of those orders, breach an order and then that matter might go back to the Supreme Court of Queensland.

MR SOFRONOFF:   Yes.

KIRBY J:   The question is whether it is timely now and necessary now for us to get involved in this present appeal.

MR SOFRONOFF:   In my submission, this appeal involves a matter that is on any view spent because the order that was made that resulted in Mr Yeo being detained, or that order ‑ ‑ ‑

KIRBY J:   If you were to appeal, then the appellant might wish to have a few arrows to his bow or he might wish to appeal against Justice Philippides’ order and might wish to try to uphold the order of Justice Mullins.  May it be better to, as it were, simply adjourn these proceedings and see what eventuates?

MR SOFRONOFF:   I am not sure that he could appeal Justice Philippides’ order because ‑ ‑ ‑

GLEESON CJ:   There is a review system, is there not?

MR SOFRONOFF:   Yes.

GLEESON CJ:   It got before Justice Mullins because the statute required a review of Justice Philippides’ orders.

MR SOFRONOFF:   Pursuant to a section in the Act she rescinded Justice Philippides’ detention order upon the review happening and upon her not being satisfied that a detention order was required.

GLEESON CJ:   If you appealed against Justice Mullins’ decision, you would not be, as it were, seeking to reinstate Justice Philippides’ order.

MR SOFRONOFF:   No.

GLEESON CJ:   You would be saying that Justice Mullins should have made a certain order.

MR SOFRONOFF:   Correct, yes.  We would be appealing Justice Mullins’ order.

HAYNE J:   According to the state of facts as existing at that date, not the earlier date.

MR SOFRONOFF:   That is right.

KIRBY J:   Which is a more relevant thing for courts to be dealing with, one would think.

MR SOFRONOFF:   Yes, the fresh facts.

KIRBY J:   Up‑to‑date facts, rather than an exercise in legal history.

MR SOFRONOFF:   And, indeed, we might not appeal.

GLEESON CJ:   Anyway, that is the sense in which you said that on any view of it Justice Philippides’ order is spent ‑ ‑ ‑

MR SOFRONOFF:   Yes.

GLEESON CJ:   ‑ ‑ ‑ because of what happened when it came, as it had to come, for review before Justice Mullins.

MR SOFRONOFF:   Yes.  Those are our submissions, your Honour.

GLEESON CJ:   Thank you.  Yes, Mr Smith.

MR SMITH:   Your Honour, Mr Yeo’s concern about the present position is twofold.  Firstly, if the Attorney does appeal the decision of Justice Mullins he is in exactly the same position really as he is now because at no stage in his argument has the Supreme Court of Queensland at whatever level considered the relevant principles for which he contends.  Secondly, the conditions of the supervision order are fairly onerous.  For example, he cannot do much without permission.  If he breaches those then he is to be detained unless he proves he should not be whilst before the hearing, and then he has to prove that he should not be detained at the final hearing because of the amendments made to the Act in August this year.

KIRBY J:   So is your point that having fought that battle and got special leave and being in the Court you do not want, as it were, to go to square one without the advantage that you have already won on issues of principle which would arise in certain eventualities.

MR SMITH:  Yes, your Honour.  I concede though, of course, that the landscape has changed somewhat, obviously enough because of the decision of Justice Mullins.

KIRBY J:   It certainly has.

MR SMITH:  And the documents my learned friend points to correctly point out the appeal is really about detention vis-à-vis supervision.

GLEESON CJ:   Well, is it still the case that the order you ask us to make, if you succeed in your appeal, is the order that appears on page 308?

MR SMITH:  Yes, your Honour.

GLEESON CJ:   Well, now, if the matter were remitted to the Court of Appeal to reconsider, the matter being the appeal against the decision of Justice Philippides, what would the Court of Appeal be reconsidering that for?

MR SMITH:  Well, there would be no reconsideration, I would concede, because supervision has now been granted.  What I was going to submit to your Honours was this, and I have only really formulated this listening to the argument before, was that the Court do consider an adjournment of this matter to - past the appeal period for the present order from Justice Mullins.  If there is no appeal, then I would get instructions no doubt to concede the application made by my learned friend, but on the other hand if there is an appeal then the principles relevant in this appeal would be alive still.

GLEESON CJ:   Yes, but not alive in this case.  In other words, there is still the question of what order you ask this Court to make, and the only order you ask this Court to make is an order that the matter be remitted to the Court of Appeal, and the only order you asked the Court of Appeal to make when it was before the Court of Appeal was to make a supervision order.

MR SMITH:  That is true.

KIRBY J:   I suppose what you might be able to argue is that having got special leave and being before us on the return of the appeal today that the supervision order – or that the matter would be returned to the Court of Appeal with the benefit of the instruction of this Court on the approach to the supervision order and that this Court may say things that may make the supervision order made by the Court of Appeal on remitter slightly different or somehow different from Justice Mullins’.

MR SMITH:   That is a possibility too, I suppose, your Honour.

KIRBY J:   It is unlikely that we would get into the detail because, as Justice Hayne pointed out, Justice Mullins at least made her order on the basis of up‑to‑date material, whereas we are bound by the Constitution to deal with it on the basis of the material that was before Justice Philippides.

MR SMITH:   Yes, your Honour.  Coming back to what my position really is, after listening to argument about the matter I would seek an adjournment of this matter until after the appeal period expires in respect of the Justice Mullins order.

GLEESON CJ:   Thank you, Mr Smith.  Is there anything you want to say further, Mr Sofronoff?

MR SOFRONOFF:   No, your Honour, thank you.

KIRBY J:   What do you say about the fact that the appellant has one special leave application?  If you sit where I sit, that is not always an easy thing to do.

MR SOFRONOFF:   Nor where he sits, your Honour.  Given the obvious considerations, I would not have opposed an adjournment except that, in the event that the Attorney appeals Justice Mullins’ order and special leave is sought, say, on a similar ground from a successful appeal against Justice Mullins’ order, nevertheless this appeal will never have to be decided.

KIRBY J:   Justice Mullins, at least arguably, has not made the errors, if they were errors, that occasioned the grant of special leave against the orders of Justice Philippides.

MR SOFRONOFF:   And the Court of Appeal, perhaps differently constituted, might take a different view of my learned friend’s argument about the applicability of what is called the Chester principle and, indeed, we might take a different view in advocating that case before it.  Put shortly, whatever happens to Justice Mullins’ order, Justice Philippides’ order and the Court of Appeal’s order consequential upon that will never come back for proper consideration because Justice Philippides’ order has been rescinded and replaced by the order that our learned friend’s client wanted made in the first instance.

KIRBY J:   There is just a little footnote to that, that normally the law protects people in respect of orders made whilst they are before courts.

MR SOFRONOFF:   But this is different because, normally, orders, once perfected, stand subject to appeal.  This particular statute permits the recision of an order of one judge by another judge.  It is different for that reason, your Honour.

KIRBY J:   That, on a regular basis, does it not, goes up for automatic annual review and therefore it is not as if the judge plucked the matter out and decided to review it.

MR SOFRONOFF:   No.  It is annual.  The Attorney‑General is obliged to bring an annual application.  Could I say this, your Honour, that in the event that history repeats itself and Mr Yeo finds himself an unsuccessful litigant before the Court of Appeal in similar circumstances to those previously and our learned friends on his behalf bring an application for special leave agitating the same grounds, I would not wish to tie my hands because I do not know what will happen, but speaking at this remove, it would be

difficult to argue that there is no special leave point in relation to the Chester principle.  So to the extent that that gives our learned friend any comfort, I say that.

GLEESON CJ:   Mr Solicitor, what is the section of the Act that empowers recision?

MR SOFRONOFF:   I refer to it in the outline.

HEYDON J:   Section 27?

MR SOFRONOFF:   I am not very good with papers, your Honour.  I have lost my outline, but in the paragraph where I refer to Justice Mullins rescinding the order I ‑ ‑ ‑

GLEESON CJ:   It is section 30(5).

MR SOFRONOFF:   Thank you, your Honour.  Yes. 

GLEESON CJ: So what it does, section 30, although it uses the word “may”, it gives the reviewing judge three possible courses to pursue. One is to continue the continuing detention order, the second is to release subject to a supervision order and the third, as far as I can see the only other possibility, is to rescind the continuing detention order.

MR SOFRONOFF:   Yes.

GLEESON CJ:   All right, thank you.  We will adjourn for a short time to consider the course we will take.

AT 10.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 10:24 AM:

GLEESON CJ:   The orders of the Court of Appeal of Queensland which the appellant has special leave to challenge by appeal to this Court are spent because of a rescission order made under section 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003. The appellant is now subject to an order of the general kind he submitted to the Court of Appeal of Queensland should be made.

We express no view on the issues which the appellant would have sought to agitate in this appeal, if it had proceeded, and we note what was said by the Solicitor‑General for Queensland at the conclusion of his oral submissions on his application to revoke special leave to appeal.

The order that the Court makes is that special leave to appeal is revoked.

We will adjourn until 9.30 tomorrow in Sydney and 9.30 tomorrow in Melbourne.

AT 10.26 AM THE MATTER WAS ADJOURNED