Monis v The Queen; Droudis v The Queen [2014] HCATrans 280 (12 December 2014)

Last Updated: 16 December 2014

[2014] HCATrans 280

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S214 of 2014

B e t w e e n -

MAN HARON MONIS

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Sydney No S215 of 2014

B e t w e e n -

AMIRAH DROUDIS

Applicant

and

THE QUEEN

Respondent

Applications for removal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2014, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR G.O’L. REYNOLDS, SC: If the Court pleases, I appear for both applicants with my learned friend, MR D.P. HUME. (instructed by CBD Criminal Defence Lawyers)

MR J.V. AGIUS, SC: May it please the Court, I appear for the Crown with my learned friend, MR R.J. RANKEN. (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ: Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, I submit that an order for removal is appropriate in this case for a number of reasons. The first and probably most important is that it raises a number of important constitutional issues which, as my learned friends have pointed out, is a factor supporting removal in the cases. The most important issue is what I will call the issue of preclusion in constitutional cases. By that I mean something approximating to res judicata or issue estoppel and here it is a form of abuse of process. I submit that preclusion in constitutional cases is an important issue for a number of reasons. One is that the Court has never resolved this particular issue or looked at it in any detail at all.

GAGELER J: What issue are you speaking of?

MR REYNOLDS: The issue of whether preclusion can apply in constitutional litigation at all. There are two main issues. One is, as I say, do those principles of res judicata, et cetera, apply at all in constitutional litigation? The second is, picking up what Justice Gummow said in Wakim at paragraph 156, if they do operate then do they operate differently or less stringently?

Now, as Justice Gummow has also pointed out, these are issues on which the Court is yet to express conclusions. Your Honours will perhaps recall that this was an issue raised in Williams (No 2). That is in our booklet - I will not take you to it - but in paragraphs [54] and [55] the Court adverted to this issue, that is, to its existence, but of course did not decide it because it was not necessary to do so because the case would be determined on other bases.

FRENCH CJ: Well, now, if you lost on the appeal originating out of the unsuccessful motions to quash the indictments at first instance, if you lost other than by operation of the Judiciary Act in the High Court you would not be suggesting that there is any controversy about the notion that you are precluded from raising the same issue again on an appeal against conviction?

MR REYNOLDS: Well, that is obviously a harder case which is why your Honour the Chief Justice is putting it to me. I would actually submit - - -

FRENCH CJ: Well, I am wondering whether it is a different case. That is really the question in the end.

MR REYNOLDS: I submit that in that instance an argument would be open to me to say because there is no res judicata in constitutional cases at all that the decision is binding only as a precedent, and I would then be in the position of being able to argue that if I wanted – I would obviously need leave – I would be able to argue that the decision should be overruled, but that would be the form in which the matter would proceed. It would not proceed with my clients being cut off at the knees on the threshold point about whether or not they were entitled even to be heard because it was an abuse of process or res judicata.

Now, here of course there are special circumstances because of the three/three split. Your Honours will have seen that we have quoted Wakim at paragraph 100, a statement that had the endorsement of four Judges where Justices Gummow and Hayne said that a three/three split establishes “no principle or precedent”. So on one view I have probably conceded too much in my last answer in that – well, no, I have not because the four/three decision would be a precedent, but in this case we are not even in the situation of having a precedent against this because of that statement in Wakim.

FRENCH CJ: When one talks of precedent in this context, one might be talking about precedent for the purposes of later proceedings in the same court, but this is a determination effectively in these proceedings that you are seeking really to reagitate.

MR REYNOLDS: It is, but again reagitate where it does not constitute a principle or precedent that is binding against us. Also my client is an accused person and the principles operate differently there, principles about issue estoppel, for example, as my friends have noted in Rogers v The Queen. Also this was an interlocutory decision and normally the principle is that after final conviction all interlocutory decisions are up for grabs.

GAGELER J: If it had gone the other way?

MR REYNOLDS: If it was four/three, well, I would be in the position of having a precedent against me but it would not be an abuse of process I would argue because there is no abuse of process in constitutional cases. But your Honours keep putting that to me, it is a pretty important distinction between the present case and four/three because it does not constitute a precedent in this Court and there is an argument well available to me, or to my clients, that there is no form of preclusion in constitutional cases.

Now, Justice McHugh, for example, in Wakim said there is no doctrine of res judicata or issue estoppel that can prevail against the Constitution at all. Justice Callinan in the same case at paragraph 295 talked about a particular exception applying where there had been, as here, a three/three split before, and we have also handed up to your Honours beforehand a copy of paragraph 17.31 of Mr Handley’s latest of edition of Spencer Bower where your Honours will notice – this is paragraph 17.31 – he says in the second sentence that the Supreme Court of Canada treats constitutional cases as precedents only, not as grounding of res judicata.

He has perhaps gone too far in saying that this Court also does that, but he does refer to some statements in support of that. He also says that there is a special public policy exception. So all of those matters – and he also refers, I should say, in footnote 2 to a special circumstances exception, which is what Justice Callinan was talking about in Wakim. So we say there cannot be much doubt this is a very important issue - - -

GAGELER J: So you are making what your opponents says is a hurdle to the exercise of the discretion into something that is attractive?

MR REYNOLDS: Well, I would not put it that way. I am taking one of his arguments and I am saying that that makes it even more important and he is right, it does arise. It is not inarguable. We say we will be well on the front foot on this point for some of the reasons that I have indicated, including earlier statements, the analogy of the position in Canada, it is interlocutory, it is an accused person and three/three split before. Your Honours have heard all of those points.

But yes, I am turning that proposition back on him. I am in effect saying thank you very much for raising that matter. We say that is the most important issue in the case, an issue which is ripe for determination and which makes this a strong case for removal, particularly when your Honours have not ever determined that issue. I put it this high, it is about as good as one gets in the removal/special leave context. It is a very important question.

There are also other questions which I will move through fairly briefly. Your Honours of course granted special leave previously because there were important questions that were raised and it cannot be said that all of those issues have been resolved by the earlier decision. We submit that there is a public interest in their resolution, particularly with a provision of this kind which affects so many people in the community, perhaps all of them, namely, anyone that uses the mail or similar services which would include things like email.

A number of outstanding issues remain. One is whether the reasoning of what I will call the statutory majority conflicts with the earlier case law. That is one of the main points that was put against the statutory majority by Justices Hayne and Heydon. Secondly, the statutory majority refer to a series of more particular inquiries that are relevant to second limb analysis. We say they still have to be worked out and were only partially worked out in the earlier case and in subsequent cases.

Thirdly, the relevance of proportionality and what that means and in particular what the statutory majority calls strict proportionality, they raised the issue but did not resolve what role it had under the second limb. Next, whether preventing offence is a legitimate end - that was very prominent in Justice Hayne’s judgment. It is important in a number of contexts, from the defamation context to section 18C of the Racial Discrimination Act to public order offences. It is not an issue which arises rarely. It has arisen constantly in this Court in this particular context of the implied freedom.

Next, this issue of whether other less drastic means can be pointed to of achieving the legislative object - there was an issue about whether there is a test of obvious and compelling. That has not been resolved.

FRENCH CJ: All of these are arguments which might support, for example, the grant of special leave in proceedings against some other accused. The real problem is the determination that has been made in these proceedings, albeit by force of section 23 of the Judiciary Act.

MR REYNOLDS: That is true. I have really - - -

FRENCH CJ: What you say is – I understand all the points you make there and they would be entirely legitimate points to make on a special leave application in other proceeding.

MR REYNOLDS: Certainly, but the cases say, particularly Bienstein, that if there are important issues that is a favour in support of removal - - -

FRENCH CJ: Well, again, in another proceeding that would perhaps support a removal application.

MR REYNOLDS: Yes, but if we come back to this – and I am happy if your Honours are pushing me towards the turf of res judicata or issue estoppel and abuse of process, I am delighted that - - -

GAGELER J: Well, just try discretion.

MR REYNOLDS: As a matter of discretion, your Honours have a discretion about whether to remove. I submit that there is a strong argument available to my client either that notions of res judicata, et cetera, do not apply at all in constitutional litigation and if that is correct then that would mean my client ought to get removal in order to have that issue agitated.

The second issue is, even if such principles do apply, then we would be submitting if removal were granted that they apply less stringently or differently and particularly, if I can put it on a third basis, where you are talking about an accused person against whom issue estoppels do not run, you are talking about an interlocutory decision and you are talking about a previous three/three split, these are all issues which support as a matter of discretion a grant of removal – also I left out the special circumstances exception that Justice Callinan talked about in the previous three/three case and which Justice Handley refers to in that footnote of his, paragraph 17.31.

So when one looks at it turning around, as it were, as a matter of discretion, there are all of these factors which support the importance, I submit, of a removal order in this case. There are other issues. One is the issue your Honour Justice Gageler dealt with in Tajjour about reading down distributively. That is an issue which is going to have to be looked at.

I think it is fair to say your Honour the Chief Justice was perhaps provisionally against that in Monis in a paragraph. Of course Justice McHugh was in favour of it in Coleman v Power. Another issue closely related to that is the definition of “political discussion” and whether that is a clear criterion within the meaning of that particular line of country.

The only other things that I would stress are two things. First of all, there is, we submit, no utility at all in an appeal to the Court of Criminal Appeal because the court, because of paragraph 100 of Wakim, would simply need to be told, and appropriately by me, that they are bound to find that our argument as to validity is wrong and they are bound to follow the earlier High Court decision, so that is futile. That is all they could say. It would be, I submit, rhetorically a one-page judgment simply saying that.

The only other thing that I would stress is that sometimes it is said on these removal applications that the Court is deprived of the reasons of a court looking at the issues below. Well, I make the obvious point that that certainly does not apply here. But really, even without this res judicata point, this preclusion point, there are significant issues of constitutional law that still need to be worked out that are raised by this case. But the clincher, on one view, on discretion under section 40, is that we should not, I submit, in the light of the uncertain case law which is, if anything, in our favour at the moment - - -

GAGELER J: Except for the earlier decision in your case.

MR REYNOLDS: Well, that does not deal with the res judicata or abuse of process argument, is what I was talking about.

FRENCH CJ: You are referring to case law dealing with - - -

MR REYNOLDS: Dealing with that. Justice Handley, for example, probably goes too far on the authorities, but he is prepared to say that the High Court treats earlier decisions as precedents only. Now, I admit it is early days yet because there are only some brief statements in this Court, but if this were the Supreme Court of Canada, particularly given this was an interlocutory decision, as your Honour the Chief Justice pointed out in the Monis judgment, then this would just be dealing with the earlier decision as a precedent, and of course paragraph 100 of Wakim says it is not even a precedent, a three/three split.

So we submit, with respect, that this is a strong case for removal and once it is removed - I should point out that your Honours have a copy of the paragraph from Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 and at paragraph 77 Justice Gummow pointed out, and I paraphrase, that when there is a removal of an appeal from a lower court, then the jurisdiction that is being exercised is the jurisdiction on appeal of the lower court. Here the jurisdiction that would be exercised is the jurisdiction of the Court of Criminal Appeal which means that any argument available to the Crown in that court would also be available to them in this Court. If the Court pleases, those are my submissions.

FRENCH CJ: Yes, thank you, Mr Reynolds. We will not need to trouble you, Mr Agius.

The applicants seek orders under section 40 of the Judiciary Act 1903 (Cth) to remove to this Court appeals pending in the New South Wales Court of Criminal Appeal against their convictions for offences against section 471.12 of the Criminal Code (Cth). The applicants, who had pleaded guilty to the charges, nevertheless sought leave to appeal against their convictions on the basis that section 471.12, in its application to offensive communications, is invalid as infringing the implied freedom of communication on political and governmental matters. That question was resolved against them in the Court of Criminal Appeal on appeals against the dismissal of their motions to quash the original indictments on which they were charged. On appeal to this Court, the Court was evenly divided and the decision of the Court of Criminal Appeal was thereby affirmed by reason of section 23 of the Judiciary Act.

In our opinion it suffices to say that, having regard to the history of the matter, we do not think it appropriate to make an order for removal in this case. We do not think it desirable to make any further comments on any preclusionary principles in relation to this case or generally in relation to constitutional cases. The application for removal will be dismissed.

AT 9.50 AM THE MATTERS WERE CONCLUDED