Ng v The Queen M148/2002 [2002] HCATrans 662 (16 December 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M148 of 2002

B e t w e e n -

PHILIP CHEE MING NG

Applicant

and

THE QUEEN

Respondent

Application for expedition

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 16 DECEMBER 2002, AT 10.07 AM

Copyright in the High Court of Australia

MR N.T. ROBINSON: If your Honour please, I appear on behalf of the Crown. (instructed by Director of Public Prosecutions, (Commonwealth))

MR A. McMONNIES: If it please the Court, I appear on behalf of the applicant. (instructed by Allan McMonnies)

MR C.J. HORAN: If the Court pleases, I appear, intervening on behalf of the State of Victoria. (instructed by the Victorian Government Solicitor)

MR ROBINSON: I seek, your Honour, orders expediting the application for special leave filed by the applicant Ng and asking for orders directing that this matter be heard with the matter of Fittock which has been - - -

HIS HONOUR: Now, what are we to do about the fact that the application for leave has this ground about sentence?

MR ROBINSON: Your Honour, yes, ground 8. The proposition that I would submit to your Honour is that it is I suppose open to this Court to refer only to - to expedite only grounds 1 through to 7, which would leave the sentence ground but it is submitted that - - -

HIS HONOUR: That then becomes awkward. Splitting a leave application becomes very cumbersome, I fear.

MR ROBINSON: That is so, your Honour, and the course that we would submit is that the entirety of the ground, including ground 8, be expedited.

HIS HONOUR: The difficulty is it will get swamped. We will be dealing with constitutional issues. That the leave on the sentence issue will inevitably be swamped or divert attention. Now, I am trying to devise some means where we could solve the problem. My identifying the problem is step one but identifying it leads to, "Well, yes, what's the solution?", and at the moment I cannot devise a solution that is terribly effective.

MR ROBINSON: Your Honour, the difficulty that the additional ground makes is, with respect, a matter that the Crown has recognised. Save the Court hiving it off in some fashion, with respect, there is no course that occurs to me that I submit to the Court. It is of little help obviously to your Honour that the Crown's proposition that the facts do not support it. Obviously, it is a matter which will be pursued, and saying that does not assist.

HIS HONOUR: What is the advantage - can I come at it from the other end?

MR ROBINSON: Yes.

HIS HONOUR: What advantage do we get by joining Ng with Fittock?

MR ROBINSON: Your Honour, one immediate one may be this. As I understand it, in the matter of Fittock the selection of the additional jurors, or the reserve jurors, was an order direct by the trial judge without application for that fact by counsel on behalf of any party. In Ng all parties sought it, including the applicant. The Crown has reserved - argued at trial and reserved before the Court of Appeal that if in fact special leave is granted the Crown would seek the Court's leave to reopen Brown to deal with the question of waiver. One of the matters that his Honour Justice Kirby mentioned in the special leave was that perhaps the reserve jurors is not something within the terms of section 80 as drafted but is a question of waiver. Now, what the Crown would submit is that by joining Ng with Fittock, if the Court saw fit to consider and litigate that aspect as part of the question of reserve jurors, at least Ng would present a vehicle which would provide that to the Court.

HIS HONOUR: Are any of these issues that are sufficiently conveniently dealt with by the fact that Victoria can intervene and given its interest in this matter may be thought likely to intervene in Fittock? Is it sufficiently dealt with by intervention?

MR ROBINSON: Certainly, your Honour, the question of waiver may not. The arguments that the Crown would put in respect to Ng it would appear, with respect, that Victoria put and joined before the Court of Appeal, and one would anticipate that if the application I make is not granted that Victoria would seek to make similar sorts of arguments by way of intervener.

There is one aspect of this which of course is different, that is that in Ng there is also challenge to the Victorian legislation which precludes the balloting off of the foreman. That is reproduced only in South Australia. The Northern Territory legislation does not raise that issue and it is not one of the grounds which has been referred to the Full Court, and gives rise to a number of the grounds in the matter of Ng. So there is that as an overlap and that as a distinction, your Honour. It is submitted that the benefits, both to the parties and to the Court in the question of convenience, would be served notwithstanding the inconvenience of the eighth ground being the sentence ground.

HIS HONOUR: If we join Ng with Fittock, what will that do to a likely duration of the hearing?

MR ROBINSON: It certainly will add to it, your Honour. There are more grounds and if leave were given to reopen the ground then the question of waiver, which is certainly a discrete ground, and Fittock has the question of Bernasconi in the application of the Constitution to the Territories. Your Honour, I cannot hazard a guess the number of interveners but if, as is likely, there are a number then it is likely to add, I would submit, appreciably to the time it might take to the argument. Though there are seven grounds dealing with the Juries Act provision, they, to a large extent, overlap, your Honour, on the applicant - on behalf of Ng.

HIS HONOUR: I had understood the overlap to be pretty considerable.

MR ROBINSON: It is, your Honour. The main distinction - though there are differences in the way the grounds are worded, in Ng there is the question of the challenge to the efficacy of the State legislation which precludes the foreman being balloted off, and there is also raised as a question of Chapter III fairness that if the trial proceeded in the fashion it did and it was in breach of the Constitution in some fashion then the trial was unfair but it is submitted that that is effectively restating in another way the grounds in any event.

Substantially, the overall is as to whether or not reserve jurors infringe section 80. Victoria adds to the question of the security of the position of the foreman. So, it is submitted, your Honour, that there is a very substantial overlap. The point may be not expressed exactly the same in each of the grounds but the same issues are raised by the reserve jurors. I do not know, your Honour, that I can urge much more than I have put before your Honour.

HIS HONOUR: Yes, thank you.

MR ROBINSON: Your Honour, there was an affidavit filed this morning indicating that in respect of the Director of Public Prosecutions for the Northern Territory that he joins in supporting the application but does not seek to appear and that Fittock does not wish to make any submission and does appear, your Honour. That is an affidavit sworn by Cosmas Moisidis of the 13^th, your Honour. That effectively set out paragraph 4 of the effect of the responses, your Honour, of those who did not appear.

HIS HONOUR: Yes.

MR McMONNIES: I seek to say nothing on behalf of Mr Ng, your Honour. We do not oppose the application.

HIS HONOUR: Yes. The principal worry remains, this sentence ground, that the sentence ground either will get lost or that the sentence issue will have eventually to be hived off. You are not troubled that there would be some disadvantage to your client as a result?

MR McMONNIES: I can say to your Honour that my client is concerned about the joining of the matters to the extent but, after a lengthy discussion, he instructed me to say nothing on the point.

HIS HONOUR: Yes, I see. Now, Mr Horan, what is the attitude of the State?

MR HORAN: Although the Victorian Attorney is an intervener and not a party, in that capacity we support the application. Might I just add to the potential advantages that have been touched on by the respondent. That, firstly, it will enable the argument on reserve or additional jurors to take account of the features of the Victorian legislation which is one of two models that applies in the various States and Territories, one of which in the Northern Territory involves reserve jurors who, I understand, are - although they retire with the jury, are nominated as reserve jurors from the start of the trial. In the case of Victorian legislation there are additional jurors - - -

HIS HONOUR: They are balloted off just before they go out.

MR HORAN: Yes, and that does give rise to, as my learned friend pointed out, differences in the grounds in our case in that there are additional grounds relating to the balloting process and in particular to the position of the foreperson, but, in any event, it allows the constitutional issue in relation to jurors to fully take account of the two models and, in particular, the Victorian provisions.

Secondly - and this may be an advantage or a disadvantage - as has been pointed out, the issue of reserve jurors in the Fittock case is subject to the preliminary question of the relationship between section 80 and the Territories and to join these cases together would ensure that the jurors point is presented to the Court without that complication. Finally, in relation to the sentence ground, I cannot propose any easy solution but one possibility is to refer the entire application to be heard together with the application in Fittock but for argument to be restricted to grounds 1 to 7 and then for the remaining ground, ground 8, to be brought on before a Full Court at a subsequent time. In effect, that is largely equivalent to having split the case and referred only grounds 1 to 7, your Honour.

HIS HONOUR: Yes. Fragmenting it is awkward, not fragmenting it is awkward and there seems no ready solution.

MR HORAN: If the Court pleases, those are the submissions on behalf of the Victorian Attorney.

HIS HONOUR: Yes, thank you, Mr Horan. Now, if I were minded to make an order, one, expediting the application for special leave to appeal and, two, subject to any contrary order of the Full Court or of a single Justice directing that the matter be listed for hearing at the same time as the matter of Fittock v The Queen, matter No D7 of 2001, what practical steps would I need to deal with in order to ensure that this is going to be ready in good time?

MR ROBINSON: Your Honour, the application book, as I understand it, has not been filed, although a proposed index - - -

HIS HONOUR: The index, I gather, is settled, or nearly so.

MR ROBINSON: I believe that is so. As far as I understand, your Honour, the only issue would be the filing of the application book. Yes, your Honour. Obviously, the filing of such would need to be in sufficient time to serve notices to all attorneys and permit them to consider the matter and respond in such time as they saw fit. The latest date would appear, your Honour, as I understand from my instructions, 20^th January for the filing of the application book and the service of notices but I am subject to being corrected by the Court staff on that.

HIS HONOUR: And we would need to have outlines in ample time, I think.

MR ROBINSON: Yes, your Honour.

HIS HONOUR: I am not minded to set a timetable for the parties but I do think that there would be advantage if you want to keep this matter in step with Fittock to have your outlines on ahead of the time prescribed and above all else do not let them come in late.

MR ROBINSON: No, your Honour.

HIS HONOUR: If they come in late I suspect that you may find yourselves suddenly disengaged very quickly.

MR ROBINSON: Yes, your Honour. The outlines, as currently provided, refer to waiver but do not seek to argue it.

HIS HONOUR: Yes.

MR ROBINSON: It would, I suppose, perhaps be beneficial to the Court if there was a waiver outline filed.

HIS HONOUR: You are going to have to bit the bullet on that, are you not, and decide what you want to argue and what you do not.

MR ROBINSON: Deal with that, that is so, your Honour. Yes. That is a matter for the Director and......this Court, but, yes, that is a matter that will be borne in mind, your Honour.

HIS HONOUR: Yes. I will order:

1. The application for special leave to appeal be expedited.

2. Subject to any contrary order of the Full Court or of a single Justice, the matter be listed for hearing at the same time as Fittock v The Queen, matter D7 of 2001.

I certify for the attendance of counsel.

Is there any other order that would be necessary?

MR ROBINSON: No, your Honour, I do not believe so.

HIS HONOUR: The order is in those terms.

MR ROBINSON: If your Honour please.

HIS HONOUR: Now we will adjourn.

AT 10.25 AM THE MATTER WAS CONCLUDED