R v Hillier [2006] HCATrans 519 (22 September 2006)

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R v Hillier [2006] HCATrans 519 (22 September 2006)

Last Updated: 22 September 2006

[2006] HCATrans 519

IN THE HIGH COURT OF AUSTRALIA

Registry No C1 of 2006

B e t w e e n -

THE QUEEN

Applicant

and

STEVEN WAYNE HILLIER

Respondent

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 22 SEPTEMBER 2006, AT 9.30 AM

Copyright in the High Court of Australia

MR R.C. REFSHAUGE, SC: May it please the Court, I appear with my learned friend, MS P.J. DE VEAU, for the Crown, the respondent to the interlocutory application today. (instructed by Director of Public Prosecutions (ACT))

MS L.A. GABRIEL: May it please your Honour, I appear for the respondent. (instructed by Nelson & Co)

HER HONOUR: Yes. Ms Gabriel, you can assume in making your application that I have read the papers.

MS GABRIEL: I am obliged, your Honour. I am sorry, the sound is not terribly good from this end. I hope you can hear me better than I can hear you.

HER HONOUR: We can hear you.

MS GABRIEL: Good. Thank you, your Honour. The summons, as you would note, is dated 19 September in relation to an application to have the special leave and effectively the substantive hearing of the application if the special leave is successful in relation to Mr Hillier’s appeal heard by this Court on 27 September this year. That date was listed on 22 August this year and the situation is that Mr Hillier finds himself now without suitable representation in relation either to the drafting of submissions or actual representation on the date of 27 September which leaves him in a very difficult position in being able to respond to the application that is being made by the DPP.

If I could just very briefly recap, your Honour, on the history just to highlight certain factors of it, the special leave application was first heard by this Court on 4 August this year and as a result of a loss of confidence by Mr Hillier in those representing him in relation to that application he acted expeditiously to arrange alternative legal representation. He was dealing with a Mr Nelson, who is the solicitor instructing me in this matter, in relation to unrelated matters and he asked whether or not he will be prepared to represent him and arrange that by 7 August, so within three days of the special leave application first being before this Court.

Between 8 August and 23 August, Mr Nelson, under instruction from Mr Hillier, was exploring finding suitable counsel for a date not yet set. As indicated, he found out on 22 August what that date was to be and of course it is much easier to.....counsel down if you have a specific date that you can indicate they would be required for. By 23 August Steirn, SC had indicated that he would probably be available to appear in relation to the matter, however, on 28 August, due to other difficulties, the retainer was refused.

As a result of that my instructing solicitor made further inquiries and by 31 August it appeared that he had been successful in securing the services of Ms Gabriel Bashir as a junior and Mr Bret Walker, SC in relation to the matter but there were difficulties regarding the nature of the retainer and one of those difficulties was identified by the team, if you like, the counsel team, that were hoping to appear in relation to the matter. They raised concerns about the nature of the legal aid grant and how that would cover reading expenses.

HER HONOUR: What is the position now in relation to legal aid?

MS GABRIEL: The position now in relation to legal aid, your Honour, is that legal aid has been granted to a fixed amount for the actual hearing date. It has been approved by Legal Aid that a certain amount can be paid directly to counsel for reading by Mr Hillier but it was the concern of the team that were to be retained as to whether or not that was in keeping with the legislative requirements for legal aid in the ACT.

HER HONOUR: Yes, I saw that.

MS GABRIEL: As a result of that concern, which has now been assuaged by the Legal Aid Office, Mr Walker and Ms Bashir were unprepared to formalise a retainer and then by 15 September they felt that they were in a position where they really would not be in a position to deal with the matter and then refused the retainer. So as of that date Mr Hillier was without representation or without the prospects of representation and as a result of that instructed my instructing solicitor to make this application before the Court.

Your Honour, obviously there are a number of concerns in relation to an application such as this. There is one day listed in the High Court’s time and of course that is very valuable and there are competing considerations between the case management priorities, particularly of this Court, and the needs of the individual. But, in our submission, the interests of justice would not be served if Mr Hillier is required to now file submissions without representation and appear on this matter personally. It would not be of assistance to the Court, in our submission, if that were to be the case and it would certainly not be in his interests.

HER HONOUR: Ms Gabriel, if the hearing date were to be vacated, it seems a matter which ought to be refixed for a day as soon as possible and let me inquire of you now about the date of Thursday, 16 November which permits almost two months to sort out any difficulties and would easily permit the respondent to comply with the Rules in terms of filing submissions in due course.

MS GABRIEL: Yes, your Honour, the date of 16 November would be acceptable. There have been some inquiries made by my instructing solicitor in relation to Mr Walker who would not be available during that period, but Mr Steirn and Mr Byrne, who was also approached in relation to the matter, are likely to be available and, as you have indicated, given the time, if they are not, further inquiries could be made, but it seems that that would be a suitable date and Mr Hillier would be happy to accept that date in relation to the adjournment.

HER HONOUR: Subject to hearing from the appellant, let me indicate that if the vacation of next Wednesday’s date is to occur that would be the basis on which I would be minded to take that course. So I might let you sit down for the moment and just make an inquiry about that because it may be that that is a course that each party is content with.

MR REFSHAUGE: Thank you, your Honour, and I do apologise, I assume, your Honour, that that is in the second week of the November sittings.

HER HONOUR: The second week. What I had in mind was fixing the matter for that day with a commencement at 10.00 am as that is the last sitting day of the second week.

MR REFSHAUGE: Thank you, your Honour.

HER HONOUR: It has been already assessed as a one-day matter.

MR REFSHAUGE: It has, your Honour, yes.

HER HONOUR: Yes.

MR REFSHAUGE: Your Honour, the application is formally opposed. I suppose that is a rhetorical device that we would not indulge in but in the sense that we say that when you balance all the interests of justice the case is not made out. However, I am aware that of course legal representation has been regarded by the Court as of a significant value not merely to the litigant and in this case his interests - - -

HER HONOUR: My.....proposal would be fixing it at the earliest possible date.

MR REFSHAUGE: Yes, your Honour. In those circumstances, although the application is opposed, I do not wish to put any further submissions to your Honour.

HER HONOUR: Yes, thank you very much.

MR REFSHAUGE: If the Court pleases.

HER HONOUR: The order I make is:

1 The hearing date of this application for special leave to appeal on Wednesday, 27 September 2006 be vacated;

2 The hearing of this application for special leave to appeal be set down for Thursday, 16 November 2006 at 10.00 am in Canberra.

Just pardon me one moment.

MR REFSHAUGE: If I can assist your Honour, it was set down for special leave to be argued as on appeal.

HER HONOUR: Yes, I was just checking that. Perhaps it is worth repeating.

MR REFSHAUGE: That would be helpful, thank you.

HER HONOUR: The parties should be prepared to present full argument as on an appeal.

MR REFSHAUGE: If the Court pleases.

HER HONOUR: Adjourn the Court.

AT 9.38 AM THE MATTER WAS CONCLUDED