Hinch v Detective Senior Constable Hogan [2010] HCATrans 184 (30 July 2010)

Last Updated: 3 August 2010

[2010] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M19 of 2010

B e t w e e n -

DERRYN HINCH

Applicant

and

DETECTIVE SENIOR CONSTABLE HOGAN

Respondent

Application for removal

HAYNE J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 JULY 2010, AT 9.27 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: If your Honour pleases, I appear with my learned friend, MR G. SLATER, for the applicant. (instructed by HWL Ebsworth Lawyers)

MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned friend, MR P.D. HERZFELD, for the respondent. (instructed by Solicitor for Public Prosecutions)

HAYNE J: Yes, Mr Bennett.

MR BENNETT: If your Honour pleases. Your Honour, I will deal first with a couple of minor procedural matters then take your Honours to the legislation and then make my submissions about the strength of the constitutional argument to the extent that one needs to look at that for the purpose of removal.

HAYNE J: At some point, also, you would need to examine, would you not, whether we should intervene in the criminal process at this point and, in particular, whether there is a sufficient factual foundation for consideration of what you say are the constitutional issues, but come to these issues in such order as you think appropriate.

MR BENNETT: Your Honour, my learned friend and I have agreed in relation to that last issue - I will hand up a document in a moment – but the parties agree that, subject to what follows, if section 42 of the Serious Sexual Offenders Monitoring Act is valid - the applicant is guilty of each of the charges – we will prepare an agreed statement of facts. If the matter is removed and the High Court holds that the section is valid then, subject to two matters - one is any retrospective change to the legislation in the meantime and the other is some fresh judicial interpretation of the word “publish” suggesting that it is confined to publishing in writing - subject to those two unlikely possibilities, we accept that a conviction would be entered on the agreed statement of facts. There is no dispute about the primary facts.

HAYNE J: Then what of the various assertions of fact that find their place in your written submissions in support of this application? Are they simply irrelevant or what?

CRENNAN J: Particularly paragraphs 11 and then 13 to 18?

MR BENNETT: Yes. Your Honour, the constitutional facts will of course need to be agreed in the stated case or - - -

HAYNE J: But this is a removal. This is a removal. It is not a stated case.

MR BENNETT: No, your Honour. I am sorry, yes, I accept that correction. Your Honour, we would hope to have an agreed statement of facts that would include the constitutional facts.

HAYNE J: You may hope it, Mr Bennett, but we are asked to remove proceedings on a factual foundation which at least to my mind is not yet ascertained or agreed. Do you say that the matters to which Justice Crennan referred are relevant or irrelevant?

MR BENNETT: Relevant, your Honour.

HAYNE J: Are they agreed or not agreed?

MR BENNETT: We have every reason to believe that they will be agreed, your Honour, is the most I can say, but they are unlikely to be controversial. They will be simple statistical facts. We know from the second reading speech that the Minister said there has only been one occasion when an order was not made in one of these cases concerning the reports. The constitutional facts are really, in a sense, more relevant to the 2009 Act than to the 2005 Act, in any event.

HAYNE J: How does the validity of the 2009 Act arise in the proceedings now pending in the Magistrates Court of Victoria?

MR BENNETT: No, your Honour, but in this Court we would submit by analogy with, for example, what happened in Street’s Case where impugned legislation is amended between the events giving rise to the challenge and the challenge in the Court we submit it is appropriate for the Court to determine the validity of the amendment. In fact, there is not going to be any issue in this case, one would have thought, for this reason. I will show your Honours the sections in a moment. The 2009 Act is clearly a fortiori from the 2005 Act. If the 2005 Act is invalid the 2009 Act is even clearer.

As I said, one possibility is that - if this were thought an appropriate procedure – one possibility is for us to commence proceedings of the Croom type in this Court and have that heard with these proceedings. That is probably unnecessary. The issues arise squarely in the proceedings and there is no other issue that is going to arise. As I said, the constitutional facts need to be established but that can be done. This Court has ample procedures for that and that is, of course, found regularly in constitutional challenges. There is certainly not going to be any dispute about the primary facts, as I have indicated.

The concerns one might have about fragmentation of the criminal process in my submission have no application where really the only issue is constitutionality. To say that in such a case one should not fragment is really to say that the most appropriate forum for the first determination of whether the relevant implications exist in the Constitution is the Magistrates Court and that, we submit, is clearly not the case.

The matters we seek to raise in this case involve high constitutional principle. There are three aspects to it. There is the Kable aspect, the implied freedom of political communication and the implication we seek to draw from Chapter III about the requirements of open justice. Such an implication was strongly suggested in Russell v Russell, of course, and in Hogan more recently.

CRENNAN J: What do you seek to draw from that? Are you suggesting that there are some sort of rights which the public and the media by extension have?

MR BENNETT: Your Honour, like the implication concerning freedom of political communication it is an immunity more than a right. In Hohfeldian terms the State, whether State or federal, cannot, we would submit, legislatively limit the requirement that courts deliver open justice except in the rare type of case where it is necessary for the administration of justice. There are obvious cases of that type and they are referred to in Scott v Scott. Clearly, for example, a law saying that one could not identify the victim of a sexual assault would be valid because it is necessary for the administration of justice otherwise victims might not come forward. The same might be said of the provisions of the Migration Act dealing with protection visas.

CRENNAN J: How would the need to use initials to refer to someone burden free discussion of government or political matters?

MR BENNETT: In a number of ways, your Honour. First, it would prevent the press being able to investigate the antecedents of a person convicted of a serious sexual offence for a number of purposes. First, the press might want to criticise the prosecutor for not referring to antecedents. It might want to criticise the prosecutor for not referring to some aggravated or mitigating factor in one of the antecedents. It might want to direct arguments about the failure of rehabilitation. It might want to criticise the sentence in the light of antecedents. There are all sorts of ways in which the press are inhibited if they cannot find out details of the person’s criminal antecedents.

Secondly, of course, if one, as here, is part of a campaign to have legislation repealed in order to present one’s arguments dramatically and effectively one may need to name people. We have given an example in our submissions in reply. One might want to say “Look, this is what the notorious sexual criminal John Smith did.” I hope that is not a real person I have identified, “Nevertheless, he succeeded in obtaining a suppression order. That, ladies and gentlemen, is the reason why suppression orders of this type should not be allowed.”

HAYNE J: The legislation which you challenge provides that the court may make an order of the kind in question if satisfied that it is in the public interest to do so.

MR BENNETT: Yes.

HAYNE J: Is there presented by that, first, a question of construction of that Act in light of what you say are applicable constitutional principles; second, whether or not there is a question of construction, is that an issue which can be agitated in the form of collateral challenge in the Magistrates Court proceedings?

MR BENNETT: Your Honour, our argument is that the whole provision is invalid because public interest is not good enough. The only basis we say in which it is permissible to prevent publication is where it is necessary for the court to do justice in the case, not where it is merely in the public interest. That is the whole of the argument in a sense.

HAYNE J: That argument presupposes a content given to the expression “public interest” and I am not sure that it is fruitful for us to debate that, but is it so that the argument presupposes a particular content for public interest?

MR BENNETT: Only, your Honour, that the words are not “the interests of justice” or “the necessity of doing justice”.

CRENNAN J: You are suggesting that in a statute the legislature is confined to using the rubric of the common law principle?

MR BENNETT: Yes, your Honour. The way we get that is this. We have prepared a document your Honours may find interesting – we have given it to our learned friends - setting out a selection of judicial and extrajudicial statements about the importance of open justice. What these say in general terms is that it is a primary and essential characteristic of justice that it be open and that - - -

HAYNE J: I am surprised it is only two pages you give us, Mr Bennett, but there we are.

MR BENNETT: Your Honours, at the hearing it will be much longer than two pages – the corresponding document. This is just – we have used the phrase “a short selection”. We were particularly impressed by the statement by Mirabeau before the National Assembly at the beginning of the French Revolution. This is the second one on the page. I will not read the French - it might discomfort the transcript takers. Your Honour the translation is that “Give me whatever judge you like, partial, corrupt, my personal enemy, these things will trouble me little so long as what he does he can only do in the face of the public”. It is a very powerful statement made, as I say, in the 18th century. We have many judicial statements and we will have many more where this is said to be an essential attribute of justice well before the Constitution. We say it is picked up by Chapter III. It is interesting to note - - -

HAYNE J: Be it so. Assume that is either arguable or unarguably right. Be it so. Is it open to the applicant to make any collateral challenge to the orders made in the County Court in the course of the Magistrates Court proceeding?

MR BENNETT: Your Honour, we challenge the section under which he is convicted which is a section which says you cannot say the names where a suppression order has been made. That section, of course, stands or falls with the section about making the suppression order. It is not so much a collateral challenge to the particular case. It is a challenge to legislation which authorises the courts to make this sort of order.

HAYNE J: In particular, is it open to the applicant - and this is a question, not an interrogative statement – is it open to the applicant to assert in the course of the Magistrates Court proceedings that in the facts of the particular case it was not open to the County Court judge to be satisfied that it is in the public interests that an order be made?

MR BENNETT: Your Honour, we submit it would be open because the Marbury v Madison principle which is implicit in Chapter III and in the structure of our federal judicial system enables one to challenge whatever is necessary to be challenged under the Constitution, notwithstanding rules about collaterality or estoppel or anything else, but, having said that, it is not necessary for us to do that in this case. We say simply that the provisions are invalid and that is the end of it, rather like what Mr Pape said. He was not challenging merely the payment of $250 to himself. He was entitled to challenge the validity of the provision. Of course, there are other examples of that.

What one gets from the short selection, and one will get from the long selection, is that this is such an essential attribute of a judicial system that Chapter III contains the implication. That, your Honour, we submit is a

very important question. There is no advantage in that question being first determined in the Magistrates Court of Victoria. It is a question of high constitutional.....ultimately for this Court and bearing in mind that one has a case where there is no conflict of fact and there constitutional facts may need to be determined, as is always the case in constitutional challenges, but they are unlikely to be controversial for the reason I have given. Putting those matters together, we submit this is clearly an appropriate case for removal.

HAYNE J: Of the whole case or part of the case?

MR BENNETT: Your Honour, we would submit the whole of the case. The Court could easily deal with it. We remind your Honours of what occurred after the removal in Pirrie v McFarlane where the High Court said at the end “the offence was trivial”, it is “a test case”. We fine you a “shilling”. The Court will, of course, if it reached that conclusion, could remit the matter for the question of penalty to be determined. We would submit that is really unnecessary and undesirable where the whole case has been set up as a constitutional test case.

If one looks at the facts that becomes very clear. This is a protest rally against legislation where in the course of the protest it is done in a dramatic way which involves a breach of the legislation. It is a bit like the flag burning case in the United States. There is no reason why the Court could not deal with questions of penalty, if it ever got to that stage. It is not likely to be a substantial issue. The important issue is constitutionality or not.

It is not a case of the type which often occurs in cases where fragmentation arguments are brought where someone is seeking to raise some constitutional matter as a technical means of avoiding or delaying a trial. This is a case where the whole exercise is about constitutionality and everything else is short and fairly trivial. If your Honours were against me on that, on the basis that one can provide part of what is asked, we would be content for the constitutional questions to be removed.

CRENNAN J: Isolated.

MR BENNETT: We would submit it is more appropriate in this sort of case for the whole case to be removed. Those are our submissions.

HAYNE J: Thank you, Mr Bennett. Yes, Mr Silbert.

MR SILBERT: If your Honour pleases. I rely on the written outline. In my submission, there are still likely to be some facts in dispute that are likely to cause concern. Given that the facts constituted in the charge are

admitted there are likely, in my submission, to be other facts that are relevant to the question – to the constitutional issue that really need to have a foundation laid for them before they are adjudicated on by this Court.

HAYNE J: Are you able to give any indication of what those facts are or might be - all issues are or might be?

MR SILBERT: I cannot because I am not aware of what my friends are asserting are the relevant facts as far as the constitutional points are concerned and there may be some grey area as to what is relevant and what is not relevant to that adjudication.

CRENNAN J: But in relation to Mr Bennett opening his submissions by referring to an agreement, does that agreement, or does it not, dispose of the points you make in your summary of argument, appeal book 92, 1(a) and 1(d)?

MR SILBERT: Yes, it does, your Honour. Those facts were only settled at the Bar table before your Honours came on to the Bench and the answer to your Honour’s questions is, yes, it does.

CRENNAN J: Is that right in relation to (d)?

MR SILBERT: Well, (d) is the one I draw to your attention. The assertion:

there is no firm foundation of factual findings necessary for resolution of all of the issues –

It depends what other facts are asserted. It certainly disposes of – it disposes of the fragmentation problem.

CRENNAN J: The fragmentation problem.

MR SILBERT: Yes, it does. I certainly concede that. I query whether it disposes of (d) and I think we would probably take issue with the question as to whether the 2009 Act is a fortiori the 2005 Act but the fragmentation problem is largely resolved by the concession. I do not know if there is anything further I can do to assist your Honours in relation to that. Those are my submissions.

HAYNE J: Yes, thank you, Mr Silbert. Mr Bennett, we are left with this position, are we not? The facts which are said to constitute an offence either have been or are – we are confident can be agreed, is that right?

MR BENNETT: Yes, your Honour.

HAYNE J: But you assert a series of other facts?

MR BENNETT: Of constitutional facts, yes, your Honour.

HAYNE J: Maybe so, but you assert a series of other facts.

MR BENNETT: Yes, your Honour.

HAYNE J: What are we to do in the face of the fact that so far as the argument presently reveals, one, they are not identified; two, they are not agreed and we are left going forward with - - -

MR BENNETT: Yes. Your Honour, we submit the appropriate way of dealing with that matter, if your Honours are against me for that reason, would be to adjourn this application and provide what is called “a note” under rule 24.02.1 permitting the issue of a subpoena to the Registrar of the County Court.

HAYNE J: Yes. I should say to you, Mr Bennett, I was asked to give such a note and I declined to do so.

MR BENNETT: Yes. Your Honour, I renew that application. The basis is this. All we want to do is get a statistic which would be the constitutional fact and that – the other matters are less important.

HAYNE J: Mr Bennett, it is time, I think, to nail the colours to a mast. Either there are further facts upon which you depend or there are not. If there are then both parties have to understand what they are and speaking only for myself I see difficulty in removing into this Court a proceeding pending in the Magistrates Court in the hope that the parties might agree about a set of facts not yet identified. It is not, I think, a satisfactory basis for proceeding.

MR BENNETT: Your Honour, in that case I ask your Honours to adjourn this application and we will endeavour to agree on such facts with our learned friends and if not perhaps renew the application for a note so that the Registrar produces the statistics and they become the fact. They are not going to be controversial. It is simply to be able to say the way this Act is administered, which certainly in the section 92 cases is regarded as relevant to validity, is that the order is just made in virtually every case without inquiry.

HAYNE J: But this Act was either valid when passed or not. It did not become invalid on account of its administration.

MR BENNETT: Your Honour, in the section 92 cases the Court has said one looks for the practical effect of the legislation.

HAYNE J: Just so. It, in my respectful submission, might well be relevant to say this is an Act which purports to give a discretion, but the way it is administered it is just done all the time and that is what is inhibiting open justice in these cases in Victoria.

BELL J: There can be no doubt the Act gives the discretion. There may be an issue concerning the exercise of the discretion and the extent to which the court is called upon to exercise that discretion - apply the expression “the public interest” consistently with the contention that you advance informs that concept.

MR BENNETT: Yes. It is in a sense to demonstrate the correctness of the statement made in Parliament. There has only been one case where it was not done.

BELL J: But how can that turn on the question of validity. There is a discretion that is conferred. Your contention is that it is was beyond the power of the Parliament of Victoria to confine the discretion by reference to the public interest and not to the administration of justice.

MR BENNETT: The needs of - yes, your Honour.

BELL J: Yes. Now, either that is good or it is bad but how does your argument improve by learning as a matter of fact in a given number of cases the discretion has been exercised in a particular way?

MR BENNETT: Only by analogy to the section 92 cases. One looks at the practical effect. That is as high as I can put it. It is not an important part of the case, in any event.

HAYNE J: Where have we got to, Mr Bennett? What are you asking us to do?

MR BENNETT: If I could just answer Justice Bell first, your Honour?

HAYNE J: Of course.

MR BENNETT: Your honours, section 42 of the 2005 Act authorises the suppression of:

any evidence given in the proceeding; or

(b) that the content of any report or other document put before the court in the proceeding; or

(c) that any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified –

It is a provision which on the face of it is very clearly inconsistent with the concept of what courts are on open justice. The 2009 Act is even worse. The 2009 Act says:

A person must not publish –

“any evidence”, “the content of any report”, “any information”, et cetera, unless the court authorises that publication. The authorisation provision requires exceptional circumstances. Your Honour, one has, we would submit, a very serious attack by the legislature on the fundamental nature of the court system and that appears in the Act itself. That becomes worse when one learns, as we were told in the second reading speech to the amendments, that there has only been one occasion when an order was not made under the old Act. In that sense, it is not necessary for us to have a - - -

HAYNE J: Mr Bennett, I see your time has expired. The question is do you persist in the application? Do you seek to have it adjourned? What is it that you wish us to do?

MR BENNETT: I ask your Honours to adjourn it to allow the constitutional facts to be agreed.

HAYNE J: Yes. Mr Silbert, what do you say in response to that?

MR SILBERT: I oppose that, your Honour. It is unlikely that anything further is going to be agreed beyond what has been agreed and the factual foundation should be established in the lower court before the matter comes before your Honours.

HAYNE J: Yes. Is there anything you wish to say in answer to that, Mr Bennett, shortly?

MR BENNETT: Only, your Honour, that to the extent that we need a subpoena to the registrar of the County Court a subpoena from this Court is likely to provoke less argument than a subpoena from the Magistrates Court as a matter of practice. The determination of constitutional facts, usually agreed, has been a regular feature of constitutional litigation in this Court. If your Honours were against me for that reason only I would be prepared to

accept that we would not put on evidence of the matters I have referred to and argue it on the face of the legislation.

HAYNE J: The Court will adjourn to consider the course it will take in this matter.

AT 9.58 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.07 AM:

HAYNE J: The parties are agreed that the facts which constitute the offences alleged against the applicant are facts that occurred. The applicant sought to allege that there are further facts which bear upon the validity of the impugned provision of the 2005 Act but, as we understood it, accepted in the course of argument that there being no agreement in those facts the case should be removed into this Court on the footing of the agreement that has been reached between the parties. Accordingly, so much of the cause as is now pending in the Magistrates Court of Victoria as concerns the validity of section 42 of the Serious Sexual Offenders Monitoring Act 2005 (Vic) is removed into this Court.

I should add that the removal is limited to so much of the cause as concerns the validity of the provision specified of the 2005 Act because the validity of the 2009 Act, to which reference was made in the course of argument, is, as we understand it, not in issue in the proceedings pending in the Magistrates Court. What, if anything, should the Court say as to the costs of the application, Mr Bennett?

MR BENNETT: Well, your Honour, it was opposed and they have substantially succeeded, but I am content for the costs to be costs in the proceedings.

HAYNE J: Should there be an order for costs in a proceeding of this kind? Again, it is a question. It is not an interrogative statement, Mr Bennett.

MR BENNETT: No. Well, your Honour, I ask for costs.

HAYNE J: Yes. Mr Silbert, what do you say we should do about - - -

MR SILBERT: In my submission, costs should be in the cause.

HAYNE J: Yes. Costs of the removal application will be costs in the proceeding.

AT 10.10 AM THE MATTER WAS CONCLUDED