Roberts v Commonwealth Director of Public Prosecutions; Durston v Commonwealth Director of Public Prosections [2014] HCATrans 145 (25 June 2014)

Last Updated: 26 June 2014

[2014] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H1 of 2014

B e t w e e n -

ANDREW SCOTT ROBERTS

Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
Hobart No H2 of 2014

B e t w e e n -

JAMES WILLIAM DURSTON

Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO LINK TO HOBART

ON WEDNESDAY, 25 JUNE 2014, AT 10.32 AM

Copyright in the High Court of Australia

____________________

MR A.S. ROBERTS appeared in person.

MR J.W. DURSTON appeared in person.

MR I.M. ARENDT: I appear for the respondent, your Honour. (instructed by Director of Public Prosecutions (Cth))

HIS HONOUR: Yes. Now, Mr Roberts or Mr Durston.

MR ROBERTS: Yes, your Honour, Mr Roberts.

HIS HONOUR: Yes, you appear on your own behalf, do you, Mr Roberts?

MR ROBERTS: I do, your Honour.

HIS HONOUR: Is Mr Durston in Court as well?

MR ROBERTS: Yes, he is, your Honour.

HIS HONOUR: Yes. And have you agreed about which of you will speak, or are both of you to speak?

MR ROBERTS: Your Honour, we would both like to speak.

HIS HONOUR: Yes. Thank you, perhaps if you have a seat for a moment, Mr Roberts.

MR ROBERTS: Thank you, your Honour.

HIS HONOUR: Is there any reason, Mr Arendt, why the two applications should not be called on together?

MR ARENDT: No, there is not, your Honour.

HIS HONOUR: Yes. Just before you sit down, Mr Arendt, the file stops the chronology of events at, I think, the fixing of a hearing in the Launceston Court some days ago. What is the present state of play with the proceedings?

MR ARENDT: The proceedings, your Honour, have been finalised. The matter was relisted on an application by the Commonwealth DPP for the purpose of tendering no evidence on both complaints. As a consequence of that occurring, the presiding magistrate made an order, dismissing both of those complaints, and that occurred on 13 June.

HIS HONOUR: What is the consequence of the dismissal? Does that have any consequence for the possibility of reinstituting proceedings of that kind in respect of the matters the subject of those charges?

MR ARENDT: It does not prevent it, but I certainly could give an undertaking, your Honour, that no further proceedings will be filed by the Commonwealth DPP to initiate the matters of complaint - - -

HIS HONOUR: Well, it may not be necessary to proffer an undertaking, Mr Arendt, but is it the position that the Director, as at present advised, does not propose to reinstitute proceedings for the matters the subject of the charges that were pending and have now been finalised in the court in Launceston?

MR ARENDT: That is correct, your Honour.

HIS HONOUR: Yes, thank you.

MR ARENDT: That is the position.

HIS HONOUR: Yes. Now, Mr Roberts, the application which you have in this Court is an application under section 40 of the Judiciary Act. Section 40 permits this Court to remove into the Court any cause that is pending in another court if certain conditions are met. Given that the

proceedings against you and against Mr Durston have, as I understand it, been finalised, what have I got that I can remove into this Court?

MR ROBERTS: Your Honour, it is my understanding that the Magistrates Court at Tasmania is a creature of State legislation and not sitting under Chapter III of the Constitution, that the magistrate did not necessarily have the constitutional authority to dismiss the case if it was filed before the High Court and that we have the concern that the constitutional issue that we raised originally in the proceedings has not been addressed, hence we would still like to consider that the constitutional issue can be considered.

HIS HONOUR: That proposition, I think, Mr Roberts, depends upon a couple of premises that I would have thought are at least open to serious doubt. They are premises which, it may be, are wrong. Until this Court makes an order for removal the court in which the proceedings are pending can – it need not – but it can, I think, go ahead with the matter, and the fact is that the proceedings against you and Mr Durston have now been dismissed. As I say, what then is the subject matter that we could – or I could – remove into this Court?

MR ROBERTS: Well, your Honour, we believe that there is a case for the integrity of the whole proceedings, and in fairness to Mr Durston and myself, we believe that the whole matter of the proceeding taken against us by the Commonwealth DPP has been unprofessional and has not been showing true diligence to justice. In fact, when they received the portfolio of the charges from Tasmania Police, we would have expected that they would have had true diligence to examine the case and see that there was no evidence to tender and to dismiss it then. But the way it has unfolded has given us, as it were, a bad taste in our mouth that we have not received adequate justice by a Commonwealth Department and I think that this is a matter of serious concern and, hence, we would like the High Court to be able to redress the situation if that is something that is appropriate and can be done.

HIS HONOUR: There, I think, may be the difficulty. I do not want to embark on any inquiry today into whether the Director acted promptly, or sufficiently promptly, in disposing of the proceedings, and any citizen who has any encounter with the criminal law, whatever its outcome, is I suspect, left with a taste in the mouth that is not the best. Encounters with the criminal law are never enjoyable, Mr Roberts. But the fact is you have now got an outcome of the litigation which is the best possible outcome you could achieve. The proceedings against you stand dismissed. The Director says, I am not thinking of starting the proceedings again. That is an end of the matter, as far as I can see. Now, is there anything else you would want to say in support of the application?

MR ROBERTS: Yes, your Honour. I agree with what you have said on a personal basis. For Mr Durston and myself, that is a fantastic outcome, but there still remains the higher principle at play and that is the lawfulness of the legislation and its application to our charges, and that is the issue that I would really like to see brought before the High Court so it could be established that - not just for Mr Durston and myself, but for many others within the community who might be facing a similar situation of ideological contention, that they know that they would not necessarily be charged and brought before a court in response to that charge, your Honour.

HIS HONOUR: Yes, is there anything else you - - -

MR ROBERTS: That is it. Your Honour, I think Mr Durston would like to have something to say.

HIS HONOUR: Yes, thank you, Mr Roberts. Yes, Mr Durston.

MR DURSTON: Yes, thank you, your Honour, for giving me this opportunity to speak, and I am interested in your reply. I have to say, your Honour, for the record of the Court, that it is our belief that the public prosecution here in Hobart have acted underhandedly and maliciously against us and - - -

HIS HONOUR: Well, those are very large allegations to make, Mr Durston, and I am not going to allow these proceedings to go down that path. The fact is you were brought before a court in public, those proceedings have now been terminated in public, and you have obtained the best possible disposition of those proceedings because the proceedings against you stand dismissed. Is there anything else you wish to say in support of the application for removal, Mr Durston?

MR DURSTON: Yes, your Honour, there is, if you could just give me advice on one other thing. For the last year and a half my life and my three young children have been adversely affected by what we have been through and I have not yet had the opportunity or privilege to express these issues in a court.

HIS HONOUR: Well, as I said, Mr Durston, no citizen’s encounter with the criminal law is ever an enjoyable experience. The fact is the proceedings against you are at an end and they have been dismissed. The question I have to decide, and the only question I have to decide, is whether the application which you and Mr Roberts have separately made for removal into this Court should be granted. On the face of it, it seems to me that the proceedings that it is sought to remove are at an end, there is nothing to remove and that it would follow that the application for removal

should in each case be dismissed. This is your chance to say what you want to say about that issue.

MR DURSTON: Well, I can only support what my colleague has said. I do think there are a number of issues that should come out for the sake of the public. It is my understanding, your Honour, that there are vested interests within the public prosecution of Hobart, the individual that brought the case and the ABC, sir, and I have information to support this. And it is my understanding, sir, that there is a lot of things that do need to come out and we are looking for advice and direction so that justice is not just done for ourselves but for the people of Tasmania, that this can never ever happen again.

HIS HONOUR: Yes. Anything else you wish to add, Mr Durston?

MR DURSTON: No, your Honour; thank you for listening to me.

HIS HONOUR: Yes, thank you very much, Mr Durston. Mr Arendt, is there any reason why I should not dismiss both applications for removal?

MR ARENDT: No, there is not, your Honour. If you were not going to do that, that was in effect what my application would have been, for an order to dismiss.

HIS HONOUR: In each of these applications the applicant seeks an order removing into this Court the whole of a cause which, at the time of filing of the application, was pending in the Magistrates Court, Launceston. The cause that it was sought to remove was in each case a prosecution instituted by the Commonwealth Director of Public Prosecutions against the applicant.

Each of the proceedings instituted in the Magistrates Court at Launceston now stands dismissed, the Director of Public Prosecutions having chosen to lead no evidence in support of the charges which had been laid. Counsel for the Director informs me that the Director does not presently have any intention of re-agitating in any way the matters which were the subject of the charges which have been dismissed.

The cause which was pending in the Magistrates Court at Launceston, having in each case been dismissed, there is now no cause pending which can be removed into this Court. In each application, the order will be application dismissed. Adjourn the Court.

AT 10.48 AM THE MATTERS WERE CONCLUDED