Adler & Anor v ASIC, Adler v The Queen [2005] HCATrans 46 (14 February 2005)

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Adler & Anor v ASIC, Adler v The Queen [2005] HCATrans 46 (14 February 2005)

Last Updated: 17 February 2005

[2005] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S444 of 2003

B e t w e e n -

RODNEY STEPHEN ADLER

First Applicant

ADLER CORPORATION PTY LIMITED

Second Applicant

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

Office of the Registry
Sydney No S432 of 2004

B e t w e e n -

RODNEY STEPHEN ADLER

Applicant

and

THE QUEEN

Respondent

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 DECEMBER 2005, AT 9.00 AM

Copyright in the High Court of Australia

__________________

MR S.D. GLASS: Your Honour, I appear for the applicant in both these matters. (instructed by Gilbert & Tobin)

MR P.R. SHAW: Your Honour, I appear for the Commonwealth Director of Public Prosecutions. (instructed by Commonwealth Director of Public Prosecutions)

HIS HONOUR: Yes, Mr Shaw?

MR SHAW: Your Honour, unfortunately I do not have instructions at the moment in relation to appearing for ASIC. I would ask the Court’s indulgence just to make a short phone call to ASIC to clarify its position in relation to that.

HIS HONOUR: Five minutes.

MR SHAW: I do apologise, your Honour.

HIS HONOUR: I will adjourn for five minutes. If you get the instructions earlier, just let us know.

MR SHAW: Thank you, your Honour.

AT 9.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.05 AM:

HIS HONOUR: Before we begin, I should say that in the early 1980s I represented companies of which the applicant’s father was chairman in a substantial amount of litigation, and I think the applicant himself has been a principal officer of those companies since his father’s death. I am also very slightly acquainted with the applicant. Those circumstances do not, to my mind, make it inappropriate for me to hear this application, which, I understand, is essentially by consent. Does either side have any difficulty with that?

MR SHAW: We have no objection, your Honour.

HIS HONOUR: Thank you. Now, there are one or two small problems. In 432 of 2004, Mr Glass, your summons names as the respondent “Director of Public Prosecutions”. I think it should be “The Queen”.

MR GLASS: That is correct, your Honour.

HIS HONOUR: I will amend the document.

MR GLASS: Thank you.

HIS HONOUR: The other thing is that the transcript of the hearing before Mr Justice Dunford speaks of those proceedings as being No 48 of 2003, whereas I think that order 2 in each summons speaks of it being No 38 of 2003.

MR GLASS: I would be grateful, your Honour.

HIS HONOUR: It should be 48?

MR GLASS: Correct.

HIS HONOUR: I will make that change, too.

MR GLASS: Thank you.

HIS HONOUR: You, Mr Glass, move on two summonses in each - - -

MR GLASS: One in each of those matters.

HIS HONOUR: Yes. And you rely on Ms Platford’s affidavit?

MR GLASS: The affidavit of Ms Platford.

HIS HONOUR: You do not object, do you, Mr Shaw?

MR SHAW: I do not, your Honour, save as to proposed order 3 in relation to each summons, the order as to costs.

HIS HONOUR: Yes, but you have no objection to Ms Platford’s affidavit or to the exhibit?

MR SHAW: Sorry, no, I do not.

HIS HONOUR: That affidavit is read and Exhibit CAP1 will be exhibit 1 in these proceedings.

EXHIBIT 1: Affidavit of Colleen Anne Platford filed 14 February 2005

Now, Mr Shaw, you mentioned – I think you mean order No 3, the second order No 3, seeks costs.

MR SHAW: Yes, your Honour.

HIS HONOUR: I do not think it is appropriate, Mr Glass, for costs to be ordered in criminal proceedings. The Crown neither gets nor suffers costs orders, generally speaking, in criminal proceedings. On the subject of the orders, I thought it would be desirable to change order 2 slightly. In the first place, it should be “Until further order”, I think. In the second place, instead of ordering that the transcript be removed from the Internet, I think it would be better if it said that there was a direction to the Registrar to take all necessary steps to remove the transcript. Is there any problem with that change? Another change, I think, is that there should be liberty to apply. The operative order will be until the end of the trial, but it is possible that someone may want to change the order before then. Is there anything else that you wish to say, Mr Glass?

MR GLASS: No, your Honour.

HIS HONOUR: The personal applicant and a company, by a summons dated and filed on 14 February 2005 in matter No S444 of 2003, seek an order that the transcript of the hearing by this Court on 28 May 2004 of an application for special leave to appeal be removed from the Internet until verdict is delivered in The Queen v Adler, being matter No 48 of 2003 in the Criminal Division of the Supreme Court of New South Wales.

The personal applicant also, by a summons dated and filed on 14 February 2005 in matter No S432 of 2004, seeks an order that the transcript of the hearing by this Court on 10 December 2004 of an application for special leave to appeal be removed from the Internet for the same period.

An affidavit in S444 of 2003, dated and filed on 14 February 2005, of Colleen Anne Platford reveals the following history. The personal applicant has been charged with offences under the Corporations Act 2001 (Cth). It is expected that a jury will be empanelled today before Mr Justice Dunford in the Supreme Court of New South Wales and that the present applicant’s trial will commence. The trial is expected to take four weeks. That trial is part of proceedings in matter No 48 in the Criminal Division of the Supreme Court of New South Wales.

The personal applicant was a defendant in civil penalty proceedings in the Supreme Court. Justice Santow found against him and the Court of Appeal dismissed an appeal. There is an overlap between the allegations in those proceedings and the allegations in the criminal proceedings: see Mr Justice Dunford’s judgment in The Queen v Adler, Supreme Court of New South Wales, 8 February 2005, at paragraph 18.

On 28 May 2004, an application to this Court for special leave to appeal in relation to those proceedings was rejected by Chief Justice Gleeson and Justice Gummow: see Adler & Anor v ASIC [2004] HCATrans 182. In this Court, those proceedings are No S444 of 2003.

On 10 December 2004, an application to this Court for special leave to appeal against a refusal of the New South Wales Court of Criminal Appeal to uphold the refusal by Justice James of a stay of the criminal proceedings on double jeopardy grounds was rejected by Justices McHugh and Kirby: see Adler v The Queen [2004] HCATrans 546. In this Court, those proceedings are S432 of 2004.

The personal applicant apprehends that he may suffer prejudice if the jurors at his criminal trial obtain Internet access to the records of earlier proceedings, including the transcripts of the above two special leave applications. Mr Justice Dunford said in a judgment dated 8 February 2005 that he would take steps to have the Supreme Court judgments removed from the Supreme Court website.

The principal registrar of the Supreme Court and the legal representatives of both the applicants and the Director of Public Prosecutions for the Commonwealth have requested the Deputy Registrar of this Court, by letter, that the special leave transcripts be removed from the Internet for the duration of the trial. The parties have been informed that formal applications should be made in open court, and the two summonses dated today have been filed as a result.

It is important that the proceedings of this Court take place in public and that records of them, which are normally prepared with a view to public availability, be available unless a recognised exception to the principle of open justice applies. Preserving the integrity of later criminal proceedings is arguably an exception which should be recognised if, in truth, the relevant material would or might damage that integrity.

In many cases, it might be necessary to examine the relevant material closely and debate its significance with the parties to see whether it had that consequence. That is not so in this case, for the following reasons: the matter is urgent; the parties are not in dispute; the period for which access will be denied is short; and the orders made today are made only until further order and can, accordingly, be varied or rescinded speedily if good cause is shown.

In S444 of 2003, the Court:

1. Grants leave for the summons dated and filed 14 February 2005 to be returnable instanter;

2. Until further order, directs the Registrar to take all necessary steps to remove the transcript of the hearing by this Court on 28 May 2004 of an application for special leave to appeal from the Internet until verdict is delivered in The Queen v Adler, being matter No 48 of 2003 in the Criminal Division of the Supreme Court of New South Wales;

3. Grants liberty to apply;

4. Directs the parties to supply Mr Justice Dunford with a copy of these reasons and orders.

In S432 of 2004, the Court:

1. Grants leave for the summons dated and filed 14 February 2005 to be returnable instanter;

2. Until further order, directs the Registrar to take all necessary steps to remove the transcript of the hearing by this Court on 10 December 2004 of an application for special leave to appeal from the Internet until verdict is delivered in The Queen v Adler, being matter No 48 of 2003 in the Criminal Division of the Supreme Court of New South Wales;

3. Grants liberty to apply;

4. Directs the parties to supply Mr Justice Dunford with a copy of these reasons and orders.

Is there any other direction or order the parties would like?

MR GLASS: The only thing I raise, your Honour, is that there are journalists present today in the Courtroom. We are just wondering if something might be said about taking care in the reporting of your Honour’s reasons today, which do refer back to the earlier - - -

HIS HONOUR: It is pretty tepid.

MR GLASS: It is pretty vague, yes.

HIS HONOUR: Were the proceedings before Mr Justice Dunford the subject of any such order?

MR GLASS: He did not make an order, but on the day previous to the day in which your Honour has a copy of the transcript he did make a plea to the press to be cautious in their reporting and asked them to report only on actual evidence that was admitted before the jury.

HIS HONOUR: Well, I would echo Mr Justice Dunford’s plea and extend it to care in the reporting of the proceedings before this Court today. I do not think it is generally desirable to make a confidentiality order about proceedings the subject of which is whether something should be confidential, unless the confidence would be disclosed, and I do not believe anything said today would do that.

I will now adjourn.

AT 9.17 AM THE MATTER WAS CONCLUDED