York v The Queen

[2004] HCATrans 438

[2004] HCATrans 438

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B55 of 2004

B e t w e e n -

GLORIA JEANETTE YORK

Applicant

and

THE QUEEN

Respondent

Application for expedition

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 8 NOVEMBER 2004, AT 11.16 AM

Copyright in the High Court of Australia

MR A.J. KIMMINS:   May it please your Honour, I appear for the applicant.  (instructed by Ryan & Bosscher) 

MR R.G. MARTIN:   May it please your Honour, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

HIS HONOUR:   I have read the material, gentlemen.

MR KIMMINS:   Yes, your Honour.  Your Honour, primarily, without delving into detail, the case is that there exists at the present stage a status quo that the President has allowed ‑ ‑ ‑

HIS HONOUR:   There was an application to Justice McMurdo?

MR KIMMINS:   That is correct, your Honour, to stay the issue of the warrant that was as a result of the successful Attorney’s appeal, the present situation being that the warrant now having been stayed, pending the outcome of this application before your Honour, the applicant to these proceedings remains not in custody as such.

HIS HONOUR:   I understand that, Mr Kimmins.  You made an application for bail to me, is that right?  Is there an application for bail? 

MR KIMMINS:   Today?

HIS HONOUR:   Yes.

MR KIMMINS:   No.  It is for an extradited hearing of the special leave application.

HIS HONOUR:   What would happen with the stay?  Her Honour’s order is only up until today? 

MR KIMMINS:   That is correct.

HIS HONOUR:   So you would have to go back before her.

MR KIMMINS:   Regardless of what happens today, we will have to go back before her Honour to indicate what happened as a result of this application.

HIS HONOUR:   Right.  So you do not want any orders from me that would change the status quo?

MR KIMMINS:   No, your Honour.  As I understand it, if your Honour grants the application to expedite the special leave hearing, we would then be in a situation to report back to her Honour that there would be a set timetable as such.

HIS HONOUR:   Yes, relatively quick, if we should grant your application for expedition. 

MR KIMMINS:   Yes, your Honour.  It would seem that her Honour in pages 6 and 7 of the decision puts a caveat on the further continuance of the stay of the warrant.  She did not particularly wish the matter to go on forever.

HIS HONOUR:   No.  Well, one could understand that, certainly.

MR KIMMINS:   Yes.

HIS HONOUR:   All right, let me just hear from Mr Martin.

MR KIMMINS:   Yes, your Honour, thank you.

HIS HONOUR:   Mr Martin, I cannot help observing this.  Why would the Department of Corrective Services have put up such a derisory response to a serious request by the Court of Appeal?  I am constantly shocked at what Corrective Services do in relation to people in custody.  We do not have capital punishment or corporal punishment in this country.  One sometimes could be left with the impression that the authorities are countenancing this by not taking proper measures for the protection of people in custody.  Why could not the Department have made a better response than the one that it did?  It was given plenty of time.  Justice Williams in the Court of Appeal emphasised the importance of it and their Honours, he and Justice Cullinane, were still left with a deep sense of unease, as I read their reasons.

MR MARTIN:   I cannot answer that question, I am not ‑ ‑ ‑

HIS HONOUR:   Well, you should be able to, Mr Martin.  I do not mean you personally, do not misunderstand me, but it is no good people representing the respondent, representing the Crown, coming before the Court and saying they cannot answer something.  You represent one arm of the Executive.  The Department of Corrective Services is another arm of the Executive.  The Executive is not divided.  It should be able to make a proper response.  I think it is deplorable.  It is deplorable that people can be not only injured whilst in custody and killed, but also that the authorities do not think it even worthwhile making a decent response to the Court’s concern about it.

MR MARTIN:   I cannot give your Honour an answer to the detail of the question that you ask, but it occurs to me as I stand here that it may well be that the exact detail of how to treat Ms York was dependent upon what they discovered upon her coming into prison, so there is a process ‑ ‑ ‑

HIS HONOUR:   That is ridiculous, Mr Martin.  There is only one issue in that regard, and that was that she was in jeopardy, and how she was treated otherwise, that is, otherwise than with respect to preserving her safety, yes, certainly, that could be a matter of assessment, one could readily understand that.  But that was not the issue.  The issue was how was she going to be protected and the respondent did not even see fit to make a decent response to the concerns of the Court.

MR MARTIN:   As I read it, it was a general response which was for that reason ‑ ‑ ‑

HIS HONOUR:   It was totally inadequate.  The Court of Appeal thought it was inadequate.  Justice Williams described the response as “trite”; trite statements adding nothing to what was already before the court and known by the court, did not address the real issue at all.  No attempt to address it before me in material.  I have to consider what effectively is to happen here.  The courts are being treated almost with contempt.  God knows how the prisoners are being treated if this is the way the courts are being treated. 

It is not your fault personally, Mr Martin, but you should convey my very great displeasure at this, because I think it is an affront not only to the Court, but also to the criminal justice system, that the Department does not see fit either to offer proper means of protection to prisoners or to attempt to respond to two courts now – two courts’ concerns about it.  You will make sure that my remarks in that regard do not go unnoticed.

MR MARTIN:   I most certainly will, your Honour. 

HIS HONOUR:   All right.  Well, what is your attitude to the matter of expedition?

MR MARTIN:   My attitude is a neutral one.  We neither oppose nor support.  However, your Honour has my outline in which I have submitted the proposition that – and I am mindful of what your Honour has just said, but those considerations were not sufficient to move the majority below, and, in my respectful submission, this case is not anything out of the ordinary such that it should advance the position in the least.  It is fundamentally a matter for the Court. 

HIS HONOUR:   Two judges were concerned, two out of four judges.  I know you do not add it up that way, but you have two judges who are gravely concerned about the matter; the primary judge and Justice White, and obviously Justice McMurdo had some concerns - three judges.  I am not suggesting that we add matters up that way.  There are cases where if you did a count back, the winner was in the minority…..but we are talking about somebody’s life here, possibly somebody’s life.

MR MARTIN:   Well, my submission is in response to that – and I want to make it clear that I am maintaining a position of neutrality, but in response to the issue of respect of somebody’s life, it is not uncommon for prisoners to give evidence.  They almost inevitably make assertions similar to those made here.

HIS HONOUR:   Yes, but you have got findings against you by the primary judge here.  She accepted all of that.

MR MARTIN:   Yes.

HIS HONOUR:   I think they are concurrent findings of fact.  The Court of Criminal Appeal, even the majority, made the same findings.  It was just that they did not think they were sufficient to justify refraining from imposing a custodial sentence.

MR MARTIN:   The point, I suppose, is a reduction of the sentence from 10 to 12 years, which would have resulted in serving eight to nine and a half, down to serving nothing at all.

HIS HONOUR:   Though if you serve a month and you are killed, it is not much compensation, is it?

MR MARTIN:   Your Honour, it is my submission that there are prison records but that the actual material here – and it is not necessarily in the material that your Honour has, but there was, for example, other affidavit material below - suggested that Townsville was not an inappropriate place to send her or ‑ ‑ ‑

HIS HONOUR:   But no decision had been made to send her to Townsville.

MR MARTIN:   No.  The other option was in protection in Brisbane, but there was some favour in the idea of sending her to Townsville.

HIS HONOUR:   I am not naïve enough to think that prisons are not nasty places, full of nasty dangerous people but they are staffed, theoretically, by disciplined people with all of the modern means of surveillance in generally

up-to-date prisons.  People ought not be unlawfully assaulted or murdered in prison.  It just should not happen.

MR MARTIN:   All of that having been said, your Honour, might favour the non-expedition of the matter.  The women’s prison is a modern prison in Brisbane.  I do not know about the position in Townsville.

HIS HONOUR:   Well, is there anything you want to add?

MR MARTIN:    Not today, your Honour, no.

HIS HONOUR:   All right.  Mr Kimmins, I do not think I need to hear you any more.  I think I can make an order for expedition. 

MR KIMMINS:   Thank you, your Honour.

HIS HONOUR:   The list is very long at the moment, but we can fit some matters in.  I think there is a degree of urgency about this matter.  Is 3 December any problem to you, Mr Martin, as a date, or to those whom you represent?

MR MARTIN:   I will not be doing it.  I would rather avoid it because Ms York was a witness of mine in the Lace trial.

HIS HONOUR:   Did you prosecute her?

MR MARTIN:   I did, yes.  I am only here today because we did not have anybody else who was in a position to come along and respond ‑ ‑ ‑

HIS HONOUR:   I am not reproaching you.

MR MARTIN:   No, but I am raising the potential problem.  I would expect we would have somebody available on 3 December.

HIS HONOUR:   All right.  The respondent should have the means to do that.  Does that date suit you, Mr Kimmins?

MR KIMMINS:   Yes, your Honour.

HIS HONOUR:   All right.  In view of the fact that a case for some urgency has been made out here, I will order that the application for expedition be allowed and that the application for special leave be heard on 3 December next – it will almost certainly be by video link unless you want to come down.

MR KIMMINS:   Yes, your Honour.

HIS HONOUR:   Anything further?

MR KIMMINS:   No, thank you, your Honour.

AT 11.28 AM THE MATTER WAS CONCLUDED