Crump v State of New South Wales & Anor [2011] HCATrans 262 (20 September 2011)

Last Updated: 22 September 2011

[2011] HCATrans 262

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S165 of 2011

B e t w e e n -

KEVIN GARRY CRUMP

Plaintiff

and

STATE OF NEW SOUTH WALES

First Defendant

NEW SOUTH WALES STATE PAROLE AUTHORITY

Second Defendant

Directions hearing

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 SEPTEMBER 2011, AT 9.30 AM

Copyright in the High Court of Australia

MR D.P. BARROW: May it please the Court, I appear for the plaintiff. (instructed by Legal Aid (NSW))

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the first defendant. (instructed by Crown Solicitor (NSW))

MR BARROW: Some material should have been filed in the Registry.

HER HONOUR: Yes, Mr Barrow. The draft special case has been filed. There are some matters that I would like to take up with you arising out of that, some them, I must say, Mr Barrow, tending to traverse the ground that was discussed on the last occasion. Can I just perhaps firstly go to the statement of claim and to the relief that is sought. The plaintiff claims the immediate right to have his application for parole determined by the New South Wales State Parole Authority. It is clear from the statement of claim that in substance the assertion is that the plaintiff has a right to have an application for parole determined as if section 154A of the Sentencing Administration Act did not apply to him, it being contended that the legislation leading or associated with the introduction of that provision into what is correctly called the Crimes (Administration of Sentences) Act 1999 is incompatible with the exercise of federal jurisdiction by the Supreme Court on the Kable principle.

MR BARROW: Yes.

HER HONOUR: It is asserted in paragraph 3 of the statement of claim that the various items of legislation referred to in that paragraph have that effect, that is, of impairing the institutional integrity of the Supreme Court in three ways. The second and third of those ways assert that the legislation renders nugatory any application to the Court of Criminal Appeal to ameliorate the length of the minimum term. I take that to be a reference to the length of the term set by Justice McInerney in April 1997.

MR BARROW: Yes, it must be.

HER HONOUR: That not having been the subject of any appeal. In paragraph 3(iii) of the statement of claim, it is further asserted that the legislation renders nugatory any appeal to this Court from the decision of the Court of Criminal Appeal and again, there has been no appeal and for that reason, as I understand it, the first defendant says those two aspects of the plaintiff’s claim simply do not arise. Now, when I turn to the special case, the formulation of the proposed question seems to raise for consideration both of those aspects of the matter and for my own part, I confess to some difficulty seeing how those matters arise.

MR BARROW: I think it is the case, your Honour, that there has been no appeal to the Court of Criminal Appeal. It still could be the subject of an appeal, although it would be highly unlikely an appeal could be lodged and leave sought to prosecute it out of time in the circumstances of the case, but I do knot know that there is much more that can be said in that regard.

HER HONOUR: The other matter that continues to trouble me is the plaintiff’s challenge depends on the application of the Kable principle but, unlike Kable, it is not clear that any power has been conferred on the Supreme Court. The challenge must involve, must it not, a contention that the legislative power of the Parliament of New South Wales is constrained with respect to the enactment of legislation having the effect of curtailing the New South Wales State Parole Authority’s power to make a determination releasing the plaintiff on parole conformably with the orders made by Justice McInerney in April 1997.

MR BARROW: Yes.

HER HONOUR: What constitutional principle is engaged?

MR BARROW: Harking back to the last time this matter was before your Honour, as I understand it, the plaintiff’s main argument is that the legislation focuses on the decision of Justice McInerney to impose a sentence, a discrete non-parol period and it renders that determination illusory or nugatory, that it is focused upon that, as I understand it.

HER HONOUR: Is it suggested that the Parliament of New South Wales does not have the power to enact legislation which has as its effect altering the circumstances in which the Parole Authority might make a grant of parole pursuant to an order made by the Supreme Court?

MR BARROW: It is a very difficult question for me to answer, your Honour, today.

HER HONOUR: All right. Is it suggested that the legislation is ad hominem?

MR BARROW: That is part of the argument, but I think it is only a part of it.

HER HONOUR: What I have in mind, the first defendant has proposed a timetable for the progress of the matter.

MR BARROW: Yes.

HER HONOUR: Do I take it broadly that is one with which the plaintiff agrees?

MR BARROW: Yes, your Honour, with one change that we are hoping to make.

HER HONOUR: All right. What I would be assisted with on the next occasion – I intend to bring the matter back for further directions – is some outline of the basis upon which it is said that the plaintiff is entitled to the relief that is claimed. The issues that I have raised with you today leave that still a little unclear in my mind, Mr Barrow.

MR BARROW: Yes.

HER HONOUR: The matter is being progressed by the parties on the assumption that I will refer the matter into the Full Court and if the matter raises an arguable issue concerning the construction of the Constitution, that plainly, subject to the special case being in order, would be an appropriate course, but at the moment I do have difficulty understanding the way the plaintiff’s case is put. It does seem on the face of things to raise rather different principles to those engaged in Kable in the sense that no function has been conferred on the Court.

If I could just take up, for example, one aspect of the discussion in Baker v The Queen. I note in the submissions file don the plaintiff’s behalf it is noted that in Baker the challenge was to the requirement of special reasons in the case of a determination for a prisoner subject to a non-release recommendation. I appreciate that aspect. There are other statements in Baker that might have some relevance to the way the plaintiff’s case is put. A concession was made by senior counsel in that case that had the New South Wales Parliament named the 10 persons who were the subject of non-release recommendations, excluding them from the operation of section 13A of the Sentencing Act, no Kable point would have arisen. It is matters of that kind – I do not suggest that the plaintiff is in any way bound by the conduct of Mr Baker’s appeal, but there are some lively questions that are raised and I would be assisted in determining whether the matter is an appropriate one to refer into the Full Court by understanding a little more fully the basis of the way the case is put.

MR BARROW: Yes. Thank you, your Honour, for the observations and I will be communicating them to Ms Burgess.

HER HONOUR: Yes, all right.

MR BARROW: Yes, thank you, your Honour.

HER HONOUR: Now, the present draft special case that has been filed has two proposed versions of questions. Do I understand the parties are in the course of discussing those? I am sorry, Mr Solicitor, perhaps it might be convenient to hear from you.

MR SEXTON: Your Honour, in the light of the matters that your Honour has raised this morning, we just wonder if that timetable will now still be perhaps useful. It may be that if my learned friends were to perhaps prepare a new version of the special case which, in the light of some of your Honour’s remarks this morning, we would have some comments to make on it now and put back an alternative version, but it might be more useful to do that when there is something that incorporates some of that material.

HER HONOUR: Yes. Mr Barrow, are you content with the proposal perhaps that we extend the timetable somewhat to make provision for that?

MR BARROW: I think it is a very sensible suggestion, yes.

HER HONOUR: Yes, very well. I am just looking if perhaps the proposed timetable were varied such that the plaintiff serve on the first defendant the draft special case by 14 October. Would that be sufficient time for you, Mr Barrow?

MR BARROW: It would, your Honour, yes.

HER HONOUR: Then I have in mind another two weeks after that for the first defendant to serve any amendments. So that would take us from 14 October to 28 October and then if the special case were filed and served by Friday, 11 November. I can indicate, gentlemen, that week I could not list a directions hearing in any event, so I have given a little extra time to recognise that and I had in mind bringing it back before me in the week beginning 14 November. Does that timetable seem reasonable to both of you gentlemen and is there any date in the week beginning 14 November that is difficult for the parties?

MR BARROW: Not from my part, your Honour.

MR SEXTON: Not from Ms Mitchelmore’s point, your Honour.

HER HONOUR: All right. What if I were to list it then for further directions at 9.30 am on 16 November 2011. If there are no further matters, I will make the following orders:

1. The plaintiff is to serve on the first defendant a draft special case on or before 4.00 pm on 14 October 2011.
   
2. The first defendant is to serve on the plaintiff any amendments to the draft special case on or before 4.00 pm on 28 October 2011.
   
3. The plaintiff is to file and serve a draft of the special case on or before 4.00 pm on 11 November 2011 indicating those parts of the draft, if any, in respect of which the parties have not reached an agreement.
   
4. The matter is to be listed for further directions on Wednesday, 16 November 2011 at 9.30 am.
   

I will make further directions that the plaintiff file and serve an outline of submissions by 4.00 pm on 11 November 2011. Mr Solicitor, is there any difficulty with you doing likewise by 4.00 pm on Tuesday, 15 November?

MR SEXTON: I do not think so, your Honour. I just wonder if the outline – it might be useful to see the outline before we respond to the special case.

HER HONOUR: That is very sensible. I was thinking only of my own interests, Mr Solicitor. That is a very sensible proposal. I will delete the last two directions and substitute – let us just look at what is realistic. Mr Barrow, the sensible course would be for your outline to be served on the first defendant at the same time as the draft special case, that is, by 4.00 pm on 14 October, and I take it that causes no difficulty?

MR BARROW: I do not believe it does.

HER HONOUR: Yes. I will add to the directions just made the further direction that the plaintiff is to serve an outline of submissions on the first defendant, together with the draft special case, on or before 4.00 pm on 14 October 2011. The outline, Mr Barrow, can be filed at the same time as the special case on 11 November 2011. Mr Solicitor, if an outline from the first defendant might be filed and served by 4.00 pm on 15 November 2011. If there are no further matters to raise, gentlemen, I will adjourn.

AT 9.51 AM THE MATTER WAS ADJOURNED