Adler v The Queen [2004] HCATrans 487 (30 November 2004)

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Adler v The Queen [2004] HCATrans 487 (30 November 2004)

Last Updated: 18 January 2005

[2004] HCATrans 487

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S432 of 2004

B e t w e e n -

RODNEY ADLER

Applicant

and

THE QUEEN

Respondent

Application for expedition

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 NOVEMBER 2004, AT 2.14 PM

Copyright in the High Court of Australia

MR J.L. SHER, QC: If your Honour pleases, I appear for the applicant. (instructed by Gilbert & Tobin)

MR M.A. WIGNEY: If your Honour please, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

HIS HONOUR: What is the respondent’s attitude to this application, Mr Wigney?

MR WIGNEY: Your Honour, we do not oppose the application. That is not to say that we regard it necessarily as a case that warrants expedition, but we do not oppose it. It is really a matter for the Court.

HIS HONOUR: Yes, very well. Now, Mr Sher, let me just get the documents you are moving on. There is the summons for expedition filed on 23 November. That is supported by the affidavit of Colleen Anne Platford, filed on 23 November. Then on your side, Mr Wigney, there is the affidavit of Janet Elizabeth Austin, is there not, sworn the 29^th? Is that right?

MR WIGNEY: That is so, your Honour, yes.

HIS HONOUR: Yes, Mr Sher. Well, I have looked at the papers and - - -

MR SHER: There is a bit of unreported case law on this issue, your Honour, that I must say I had in mind when I gave the advice that I did and which is referred to in the affidavit.

HIS HONOUR: Yes.

MR SHER: It was not entirely to relieve the Court of the pressure of work. It was also because it seemed, with respect, to be the appropriate course to follow.

HIS HONOUR: Yes. Do not get too worried about that.

MR SHER: Justice McHugh says in the very case that the judge referred to that you should make your application to the trial court first.

HIS HONOUR: Yes, he does.

MR SHER: Yes. Now, your Honour, Mr Justice McHugh and Mr Justice Hayne have in two cases had something to say about these sort of applications. I am not sure whether your Honour - - -

HIS HONOUR: Yes, I have read it, Mr Sher. If I can just telescope things a bit, it seems to me it is a matter for expedition. There is a list in Sydney on Friday, 10 December in which you could be accommodated.

MR SHER: We would be very happy if that were the case, your Honour. The inquiry we had made through our solicitors was that the list was full, but if it is possible to fit it in that would be perfect for everyone, I would have thought - - -

HIS HONOUR: Yes, it will be done.

MR SHER: - - - and that solves the problem.

HIS HONOUR: It does, however, require some acceleration, as it were - - -

MR SHER: What has happened is that both parties have filed submissions - - -

HIS HONOUR: Yes, I see that.

MR SHER: The respondents have now filed and served their submissions, and - - -

HIS HONOUR: You have to put on a reply, have you not?

MR SHER: Yes, but that could be done very quickly, your Honour. There is a proposal for consideration for the application book, and the only suggestion that we were going to make about that proposal – if your Honour will just bear with me a moment – the Deputy Registrar wrote to my instructors on the 26^th with a suggested index of reference for the application book.

HIS HONOUR: Yes, I have that here.

MR SHER: We agree with everything, but the suggestion that we were going to make to the other side was that in the course of his judgment, Justice Santow had something to say about punishment and deterrence in relation to the civil penalties which are the very topics that are taken into account in imposing criminal penalties, and we were going to suggest that the extracts from the judgment that refer to that might be added. Now, with that one addition, that is all we have to suggest, and between now and the 10^th one would have thought that the application book could be completed and filed.

HIS HONOUR: Yes, we would really want it to be completed by this Friday, so that the Justices on the panel have enough time to think about it.

MR SHER: Well, if this addition is going to hold it up, we will leave it out.

HIS HONOUR: I think you could simply hand it in with the books when you file them.

MR SHER: We do not want to burden your Honours with 140 pages of judgment or anything like that, but there are some extracts which - - -

HIS HONOUR: Yes, if you could simply hand in the extracts in suitable numbers with the books when you file the books.

MR SHER: Yes. Otherwise, your Honour, the proposed index is satisfactory to the applicant.

HIS HONOUR: There is, however, one matter I should take up with you, and that is the point as to the validity of – is it section 1317P?

MR SHER: Yes. That was not addressed in the Court of Appeal at all.

HIS HONOUR: No, but I take it it is still an issue here?

MR SHER: Well, it is, because if we win on the other argument, we have to meet the argument based upon the applicability of that section.

HIS HONOUR: Yes.

MR SHER: It is 1317P of the Corporations Act.

HIS HONOUR: Yes, I have read the section, but I am just worried about the machinery aspects of it. There are two views, as counsel may know, as to the application of 78B of the Judiciary Act at the special leave stage.

MR SHER: Yes.

HIS HONOUR: My view has always been that it is not engaged, because there is not yet a matter until you get your special leave.

MR SHER: Well, that is the point Justice McHugh made emphatically in one of these unreported cases.

HIS HONOUR: Yes, I know. As against the other view obtaining, I think it would be a precaution for you to issue a 78B notice. It need not be in the book, but the notice plus the affidavit of service could be filed in a loose form with the book as well.

MR SHER: I am sure that can be done expeditiously, your Honour.

HIS HONOUR: The other thing, if you are thinking about your reply - - -

MR SHER: Well, that would have to be done very quickly if we are going to have an application book completed by Friday.

HIS HONOUR: The reply?

MR SHER: Yes.

HIS HONOUR: Yes, that is right. In paragraph 32 of the applicant’s summary of argument, I do not know – you have that there, gentlemen? It is page 8.

MR SHER: Yes, if your Honour will just pardon me a moment. Yes, I have that, your Honour.

HIS HONOUR: There is a reference to Sorrells and Sherman.

MR SHER: Yes.

HIS HONOUR: I think it could be useful to add a reference to United States v Russell [1973] USSC 88; 411 US 423 (1973), in particular at 433, and the most recent step in this series which seems to go on is Jacobson [1992] USSC 44; 503 US 540 (1992). Now, it seems to be said in Russell, speaking of Sherman and Sorrells, that this defence they have about entrapment is not a constitutional one. I have no concluded view about it, but they seem to be saying that there is some federal common law principle restraining statutory construction in some way, or some federal common law principle expressed as public policy about the wickedness of entrapment. That might be borne in mind in any reply to - - -

MR SHER: Well, if in the time we cannot do justice to the argument, we will obviously be supplementing it orally.

HIS HONOUR: That is right. That is why it is so important to get it on the paper, so it can be thought about before the hearing.

MR SHER: Yes. I am indebted to your Honour for those references.

HIS HONOUR: Now, we have dealt with the 78B notices. The target is the books by Friday next. The index would have to have an item 12, would it not, applicant’s reply? That would be it, I think. I think the applicant’s reply should be in the book.

MR SHER: Yes.

HIS HONOUR: The 78B notices and the affidavit of service can be filed separately without going in the book, likewise the extract from Justice Santow in the earlier litigation from that very long judgment. I do not think there is anything else.

MR SHER: Nothing more occurs to me, your Honour.

HIS HONOUR: Anything else, Mr Wigney?

MR WIGNEY: No, your Honour.

HIS HONOUR: Subject to those observations, then, I will direct that the application for special leave be placed in the list of matters for hearing in Sydney on Friday, 10 December. I certify for counsel. Costs will be costs of the leave application.

MR SHER: If your Honour pleases.

AT 2.26 PM THE MATTER WAS CONCLUDED