Gassy v The Queen [2007] HCATrans 617 (18 October 2007)

Last Updated: 25 October 2007

[2007] HCATrans 617

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A2 of 2006

B e t w e e n -

JEAN ERIC GASSY

Applicant

and

THE QUEEN

Respondent

Directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON THURSDAY, 18 OCTOBER 2007, AT 10.01 AM

Copyright in the High Court of Australia

MR J.E. GASSY appeared in person.

MR P.R. BREBNER, QC: May it please the Court, I appear with MS E.F. TELFER for the respondent. (instructed by Director of Public Prosecutions (SA))

HIS HONOUR: Before we begin, Mr Gassy, I understand that you have been offered the services of Mr Reynolds of Senior Counsel and that you have decided that you wish to represent yourself. Is that right?

MR GASSY: Yes, your Honour.

HIS HONOUR: In particular, am I right in understanding that Mr Reynolds had offered to act for you in the hearing of the matter in the Full Court when it comes on? Is that right?

MR GASSY: Yes, your Honour.

HIS HONOUR: Yes. Mr Gassy, have you received the draft directions that the Registry sent, I think to the prison perhaps yesterday?

MR GASSY: Not yet, your Honour.

HIS HONOUR: No. Mr Brebner, do you have the directions?

MR BREBNER: Yes, your Honour.

HIS HONOUR: Would it be possible, Mr Brebner, for you to make available to Mr Gassy a copy of those directions, please?

MR BREBNER: I have only the one copy in Court, your Honour.

HIS HONOUR: Times are tough in Adelaide, are they, Mr Brebner? We cannot afford copies these days in Adelaide, is that the score?

MR BREBNER: No. The Auditor-General would disapprove, your Honour. He can certainly peruse mine and I can make a copy available to him as quickly as I can.

HIS HONOUR: That would be helpful because can I indicate where I want to go and then give you both a sufficient opportunity, particularly you, Mr Gassy, to read them in peace and have a moment to think about them. I do not want you to have to do this on the run, so I want you to have a moment to think about them. So can I just tell you what is lying behind the bit of paper that you now see for the first time. It is likely that this matter will be fixed for hearing in December. We are looking at least towards fixing it in December. My objective today is to give directions about getting the application book and necessary papers in a state where we can get them before the Full Court.

Two thoughts underpin the directions that have been prepared. The first thought is that the preparation of the books should, in the first instance, be a task for the respondent and it should be done by, firstly, getting before the Full Court of the High Court the record that was before the Full Court of the Supreme Court of South Australia. So the objective is to get the appeal books that were in the Full Court available for use in the High Court. There were 15 volumes of appeal book there, were there, and there was a supplementary appeal book. The objective is to get all of those, except for volume 2, in front of the Full Court of the High Court. Volume 2 is the volume that concerned leave to appeal to the Full Court of South Australia. That is why I have cut out volume 2. It does not seem to me to be immediately relevant for our purposes.

The next thought that underpins these directions is that there should then be a separate and additional book which would be, in effect, the High Court book which will be the reasons for judgment of the Full Court, the order of the Full Court, the order of the High Court referring the matter in for argument as on appeal, your draft notice of appeal, Mr Gassy, any notice of contention and then a certificate of correctness. That, I think, will be the simplest and most efficient method of getting a record into our Court.

The second purpose I have in these directions is to fix some times for written arguments and in addition to fixing times I want to fix limits and the limit I want to fix is longer than the limit which the parties would ordinarily have. So, instead of the normal 20-page limit, what I propose is that each side should have 30 pages in which to prepare their written argument and that you, Mr Gassy, in reply, instead of ordinarily you would get five, the proposal is you should get 10 pages in reply. That is what these directions are intended to achieve. I look at paragraph 1 of the directions and I see that I have got books 1 and 3 to 13. I think I should probably have books 1 and 3 to 15. I think there were 15 volumes below. The objective is to get the whole of the Full Court appeal book except for that volume which concerns only leave to appeal to the Full Court. It seemed to me that that was irrelevant.

Mr Gassy, since you have not seen these papers, what I want to do now is give you 10 minutes to sit down, read it, think about it and then I will come back in 10 minutes time when you have had that chance and then we will talk about those directions. Do you understand that?

MR GASSY: Yes, your Honour.

HIS HONOUR: Forgive me if I work on Melbourne time, that is all very narrow-minded of me, is it not, but I make it 10 past 10 Melbourne time, 20 to 10 Adelaide time. If I come back at 20 past 10 Melbourne time, which is 10 to 10 Adelaide time, then we might be able to discuss the matters further. I think in the meantime, have we just had a copy made available, have we, Mr Brebner, for Mr Gassy’s use?

MR BREBNER: Yes, your Honour.

HIS HONOUR: Good. I will come back in 10 minutes time and we will see where we get to then.

AT 10.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.19 AM:

HIS HONOUR: Mr Gassy, have you had the opportunity to look at the proposed directions?

MR GASSY: Yes, your Honour.

HIS HONOUR: Is there anything you want to say about the proposed directions?

MR GASSY: I just have a couple of questions, if possible, your Honour.

HIS HONOUR: You can ask them and I will see whether I answer them, Mr Gassy. Yes, go on.

MR GASSY: Thank you, your Honour. In terms of the 30 pages, is that a 3 centimetre margin or a 5 centimetre margin?

HIS HONOUR: It is whatever the margin is in the rules, Mr Gassy, and although I had something to do with the preparation of the rules I cannot tell you. If you wait one moment I can tell you, I think 3 centimetres all round, 3 centimetres at the top, bottom and left-hand side.

MR GASSY: Thank you, your Honour. Your Honour, in terms of the proviso, I take it obviously that will be included in the 30 pages?

HIS HONOUR: What we do not know yet until the respondent puts on a notice of contention is whether the proviso is in play, do we? The question of the proviso is one that would, I think, ordinarily be better left over until your submissions in reply.

MR GASSY: Yes, your Honour. Your Honour, are there any particular headings that need to be addressed, like in Form 18 whether the Court likes.....fact of legal argument, why special leave should be granted? Should I follow those headings?

HIS HONOUR: Yes. You will see in paragraph 5 there is reference to two practice notes and to the rules. Those three documents together should give you the guidance that you are looking for about form, headings, divisions, that sort of issue.

MR GASSY: Thank you, your Honour. Your Honour, before I forget, could I request a copy of the transcript of today’s proceedings?

HIS HONOUR: The transcript goes up on the Net, Mr Gassy. Do you have access to the Internet for that purpose?

MR GASSY: No, your Honour, but I will be able to organise someone to do it for me.

HIS HONOUR: Yes.

MR GASSY: Your Honour, I would wish to point out that before the Court of Appeal or the Supreme Court, VDP10, a document which is a transcript of the video of an interview with the applicant on the day of the search before the police entered the premises was not included in the appeal book. It was an omission and I wish to request that the respondent ensure that that document does find its way before the Court because the applicant does reference that document.

HIS HONOUR: Was that part of the supplementary appeal book that went in in the Full Court or was it separate again from the supplementary appeal book?

MR GASSY: It was separate from the supplementary appeal book. It was a document that was relied on but for some reason the prosecution left it out of the appeal books.

HIS HONOUR: What is the best description of that document, Mr Gassy?

MR GASSY: The exhibit mark is VDP10 and it is a transcript of a video taken by South Australian police of an interview between Inspector Leonard and the applicant at the front door to the applicant’s premises just before the police gained entry on the day of the search, that is, 29 October 2002.

HIS HONOUR: Right. So there is that document, yes.

MR GASSY: Yes, your Honour, and finally there is an additional exhibit and some transcript that I would wish to rely on that I did not rely on in my application for special leave to appeal. What is the procedure for having those included?

HIS HONOUR: Let us take them separately. Firstly, is that exhibit part of the appeal book in the Full Court?

MR GASSY: No, your Honour. It is a letter from the sheriff of South Australia about the complaints of a juror following the trial essentially saying that he felt under pressure to return a verdict which I had not previously relied on.

HIS HONOUR: Is that a ground of appeal that has been referred in for argument to the Full Court?

MR GASSY: I believe so, your Honour, my submission being that the final direction acted synergistically with the purported lack of direction and the unbalanced summing-up to produce the guilty verdict and I believe that the letter from the sheriff detailing the experience of this juror is in direct evidence that in fact at least one and possibly more jurors were under pressure to return a verdict.

HIS HONOUR: You referred to some transcript that you wanted included in the papers. What is the transcript that you want included?

MR GASSY: Unfortunately I do not actually have the details with me this morning, your Honour.

HIS HONOUR: Is it transcript that is part of the appeal book in the Full Court?

MR GASSY: Yes, your Honour.

HIS HONOUR: Then if it is part of the appeal book in the Full Court it will be available for reference in this Court because the appeal books in the Full Court, other than volume 2 which relates to the leave, will be available for use in this Court.

MR GASSY: I was not sure that there would need to be a copy for each of the seven Judges.

HIS HONOUR: The intention is that the respondent should prepare 10 copies of this appeal book as it was in the Full Court below and 10 copies of the supplementary book containing the papers in this Court, therefore every member of the Bench will have available a copy of those documents.

MR GASSY: I understand, your Honour, thank you.

HIS HONOUR: Very well. Let me just make sure I understand where we have got to so far. There are two additional items to which you refer. Firstly, there is exhibit VDP10 which is a transcript of a video tape. Second, you refer to an exhibit constituted by a letter from the sheriff of South Australia concerning the complaint of one juror. Are those the two documents you have mentioned?

MR GASSY: Yes, your Honour.

HIS HONOUR: Is there anything else, any other comment that you wish to make about the proposed directions?

MR GASSY: I do not need to file any other notice of appeal or a separate application for special leave to appeal at this stage?

HIS HONOUR: Your application for special leave has been filed. Your draft notice of appeal is something for which you are responsible. It is the draft that was previously before the Court cut down to the two grounds that have been referred in for further argument. Do you follow me?

MR GASSY: Yes, your Honour. So when do I need to - - -

HIS HONOUR: You need to make that document available to the respondent as soon as you can so that the respondent may include that document in the books which the respondent is preparing.

MR GASSY: Thank you, your Honour, I understand.

HIS HONOUR: Yes. Is there anything else on your side of the record at the moment, Mr Gassy?

MR GASSY: No, your Honour.

HIS HONOUR: Thank you. Mr Brebner, first, do you have any general submission about the form of the directions that is proposed?

MR BREBNER: No general submission, your Honour. As far as providing books by 6 November is concerned, your Honour apparently has the respondent’s one and only copy of the books so we would need them back in order to commence the task and for that reason I would ask that time be extended to 8 November.

HIS HONOUR: Yes.

MR BREBNER: I have one query about draft direction 2, in particular 2(a), the reasons and judgment of the Full Court. Would the Court prefer a copy of the judgment? It is now reported in the State reports. Would the Court prefer an original print of the judgment?

HIS HONOUR: We should have the original print, I am afraid.

MR BREBNER: That is all I want to say about the draft in general terms, your Honour.

HIS HONOUR: As to particulars of that draft, can we go through it together for a moment. Mr Gassy, it would help perhaps if you followed this as we go. Paragraph 1, it would be necessary, you say, Mr Brebner, to change line 1 to read “on or before 8 November”.

MR BREBNER: Yes, your Honour.

HIS HONOUR: Line 2 should be amended, should it not, to “bound in white covers of each of books 1 and 3 to 15”, not “3 to 13”, is that right?

MR BREBNER: Yes.

HIS HONOUR: On direction 1, am I right in thinking that book 2 is wholly about the leave application and really of no utility for this Court, is that right?

MR BREBNER: Yes, your Honour.

HIS HONOUR: Direction 2 we would need to change to 8 November, is that right?

MR BREBNER: Yes, your Honour.

HIS HONOUR: Otherwise, is there any change which you would propose, Mr Brebner, before I come to these two other documents that Mr Gassy has mentioned?

MR BREBNER: No, your Honour.

HIS HONOUR: As to the two documents which Mr Gassy mentions, the transcript of the videotape, exhibit VDP10, Mr Brebner, what do you say as to its inclusion?

MR BREBNER: I have no objection to that and it could probably be sensibly included in the supplementary volume.

HIS HONOUR: In a sense I do not much mind where it goes. I wonder whether it may not find its more natural place in the copy of the supplementary appeal book before the Full Court. Is that a natural place for it at the end, if you like, divided off with a divider?

MR BREBNER: If that serves the Court best, yes.

HIS HONOUR: Yes, and then this exhibit constituted by the letter from the sheriff, what do you say as to that?

MR BREBNER: That was not before the Court of Criminal Appeal and as such forms a species of fresh evidence which the Court does not receive. I would be objecting to that.

HIS HONOUR: Yes. Then can we amend line 3 of direction 1 so that it will read “Appeal book and the supplementary appeal book (together with exhibit VDP10) filed in the Full Court of the Supreme Court of South Australia and serve three copies”? That I think copes with that document. Can we then add in paragraph 2 of the directions, item (g), “A copy of the letter from the sheriff of the Supreme Court of South Australia upon which the applicant seeks to rely in support of his appeal”? So item (g), “A copy of the letter from the sheriff of the Supreme Court of South Australia upon which the applicant seeks to rely in support of his appeal”. Mr Brebner, I understand that you would object to its reception. The question of its reception is perhaps something about which I should offer no comment. It is a matter that perhaps is more appropriately left for consideration by the Full Court. It will be easiest if the document is before the Full Court and any question of its reception or reference to it is left over for argument before the Full Court.

MR BREBNER: As your Honour pleases.

HIS HONOUR: Yes. Is there anything else then that I need to address in the directions that are made?

MR BREBNER: Not from my point of view, your Honour.

HIS HONOUR: Yes, Mr Gassy?

MR GASSY: Nothing, your Honour.

HIS HONOUR: Very well. There will be directions in the form that I have indicated, being the directions as amended as indicated. I will initial my copy of the draft. It may remain on the file as the record. You will notice that I have reserved liberty to apply on not less than 48 hours notice to the opposite party. That is a capacity that is there for either side.

May I say this to both sides, that if you are heading into difficulty about complying with these directions, it is better that we know about that difficulty sooner rather than later. If we know about it sooner, then whether I can make time to hold a further directions hearing will depend upon what other demands there are on my time. But it is better that we know about these problems sooner rather than later and certainly that we know about these problems before we get to the final hearing. The last thing that is useful is to have time at a final hearing devoted to what properly is regarded as housekeeping. There is the homily for the day. Thank you for your assistance with the directions. I will simply adjourn.

AT 10.37 AM THE MATTER WAS CONCLUDED