Obeid v The Queen [2016] HCATrans 4 (19 January 2016)

Last Updated: 5 April 2016

[2016] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S265 of 2015

B e t w e e n -

EDWARD MOSES OBEID

Applicant

and

THE QUEEN

Respondent

Application for stay

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 JANUARY 2016, AT 9.30 AM

Copyright in the High Court of Australia

MR G. O’L. REYNOLDS, SC: May it please the Court, I appear for the applicant with my learned friend, MR D.P. HUME. (instructed by Breene and Breene Solicitors)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MS S.F. BECKETT, for the respondent. (instructed by Solicitor for Public Prosecutions)

HIS HONOUR: Well, I have at least one notice of motion before me this morning. That is yours, Mr Reynolds.

MR REYNOLDS: Yes, I understand my learned friend also has an application which is probably anterior to mine, as I understand it.

HIS HONOUR: Yes. Ms Abrahams.

MS ABRAHAM: Does your Honour have the materials filed this morning?

HIS HONOUR: I have some material filed this morning which I have not obviously had an opportunity to digest.

MS ABRAHAM: Yes, certainly. Can I explain what they are in a nutshell?

HIS HONOUR: Yes.

MS ABRAHAM: As your Honour will have appreciated from the judgments of the Court of Criminal Appeal and the judgment of Justice Beech-Jones, the proceedings to date have been suppressed – well, are the subject of a non-publication order.

HIS HONOUR: Yes. The basis on which those orders were made was not apparent to me from the judgments I read.

MS ABRAHAM: Yes, which is why the affidavit material has been put on before your Honour. Can I say in a nutshell it is this? An application – or rather two applications for trial by judge alone were made by the applicant in relation to this matter based on the extent of publicity, the first being the judgment of Justice Johnson who discusses the media – I will pause there – both applications were refused.

Justice Johnson in the first judgment discusses the media and talks about the publicity having abated. He was also quite conscious of the fact that, as he said, he could control the media by putting non-publication orders on the interlocutory proceedings. That appears in his judgment at – the publicity that is referred to is at 35 to 38. This is the judgment that is NSWSC 897; it is annexure 2 to the affidavit.

HIS HONOUR: I have numbers at the top of the page. Exhibit A to the affidavit is numbered page 35 of that exhibit.

MS ABRAHAM: The first of the annexures, A-1, which begins at page 12, actually details the basis of Justice Johnson’s original order. It is a three-page judgment - - -

HIS HONOUR: Yes, I have that.

MS ABRAHAM: - - - which, in effect, concludes that it is necessary “to prevent prejudice to the proper administration of justice” in light of the applications that were being made. Your Honour, he heard the application for trial by judge alone. That is annexure 2, that begins at page 15. At paragraphs - - -

HIS HONOUR: Well, you took me first to his interim - - -

MS ABRAHAM: Yes.

HIS HONOUR: Is that right?

MS ABRAHAM: Yes.

HIS HONOUR: All right, this is going to take a very long time to get - - -

MS ABRAHAM: Can I do it in a nutshell because, with respect - - -

HIS HONOUR: Yes, just tell me the gist of the reasoning which led the judge at first instance and the Court of Criminal Appeal to make suppression orders in relation to the decision which is the subject of the special leave application.

MS ABRAHAM: Not meaning to be pedantic, but a non-publication order as opposed to a suppression order; they do have different effects.

HIS HONOUR: Sorry. Yes.

MS ABRAHAM: Your Honour, the orders were made based on the original order made by Justice Johnson and the reasoning thereto; that is, that it is necessary in the interests of the administration of justice. That is on the basis that the argument in relation to the trial by judge alone was placed on both occasions, both before Justice Johnson and Justice Beech-Jones – the second application – on the basis of the extent of the publicity and that the applicant could not get a fair trial because of the extent of that publicity.

Justice Johnson found that the publicity had faded over time, but that in addition to that he had an ability to control the extent of publicity and he could do so by imposing a non-publication order on these proceedings, that is, any of the interlocutory arguments, and he did so on that basis. When the second hearing occurred, that is the second one before Justice Beech-Jones for the trial by judge alone, the same orders were made and, indeed, thereafter on that basis the orders have been made. In fact, as I understand it, in the Court of Criminal Appeal there was really no argument, just that it would be made - - -

HIS HONOUR: Well, what I saw at the end of the judgment of the Court of Criminal Appeal was that the matter in this respect was to be sent back to Justice Beech-Jones for further consideration.

MS ABRAHAM: He made the order – he made the order on the stay application as well.

HIS HONOUR: Yes, all right.

MS ABRAHAM: As he says in the stay application, that is the judgment number 5 which your Honour will have seen from my friend’s material, that is the judgment in relation to the stay, that in relation to that he says it is for the same reason, in effect.

HIS HONOUR: What you are seeking now is extraordinary in terms of timing. The application for special leave to appeal was filed in December.

MS ABRAHAM: Your Honour, I agree, and one would have thought that ordinarily the application for the non-publication of the applicant’s name in light of the arguments being made by my friend being that of prejudice should in reality be made by the applicant, in my submission. What we do not want is the orders to date in effect being undermined in any way by no application having been made in this Court and potentially publication of these proceedings being made in such a way that it could later be used to found any further applications that in some way affects the conduct of the trial.

HIS HONOUR: All right. What do you say about this, Mr Reynolds?

MR REYNOLDS: Your Honour, we are content to leave the matter to your Honour. I do not have any submissions to make.

MS ABRAHAM: Your Honour will see that we have asked in relation to the notice that it be in relation to his name or identity, and anything tending to identify him. That, in our submission, would be sufficient in light of the other orders made, in relation to the other judgments in the other courts, and only, obviously, until the resolution of the proceedings, that is, the trial proceedings.

HIS HONOUR: Yes, and the basis on which – the jurisdictional basis on which those orders are sought?

MS ABRAHAM: Section 77RE and RF are the – RF(1)(a):

necessary to prevent prejudice to the proper administration of justice –

in our submission.

HIS HONOUR: There is a requirement, is there not, for notice to be given before an order is made under section 77RE?

MR REYNOLDS: It is RG(2).

HIS HONOUR: Where is that, Mr Reynolds?

MR REYNOLDS: Subsection RG(2), your Honour.

HIS HONOUR: Ordinarily the practice of this Court is to be extremely cautious in making non-publication orders - - -

MS ABRAHAM: Absolutely, we understand entirely.

HIS HONOUR: - - - and to ensure that notice is given in accordance with section 77RG(2) by publication of the court list at least a day before the matter comes on for hearing, indicating that a suppression order or non-publication order is being sought. That has not occurred in the present case.

MS ABRAHAM: No, it has not.

HIS HONOUR: Particularly in light of the delay in making this application, I am not prepared today to proceed otherwise than perhaps by making an interim order and allowing you, if you see fit, to ensure that the appropriate notice is given and to argue the matter on a final basis at a later date.

MS ABRAHAM: Certainly, your Honour. Would your Honour just bear with me a moment while I - - -

HIS HONOUR: Yes.

MS ABRAHAM: I know this might sound pedantic in the circumstances - - -

HIS HONOUR: No, not at all.

MS ABRAHAM: - - - but RG(2) does not actually refer to notice, it refers to an entitlement to be heard.

HIS HONOUR: Well, of course, but it is very difficult to be heard without being told.

MS ABRAHAM: I appreciate that, but the section does not actually require notice - - -

HIS HONOUR: I appreciate that.

MS ABRAHAM: - - - and as I understand the proceedings to date, whilst there has been media in court in other of the hearings, no submissions at all were made by the parties – by media representatives.

HIS HONOUR: Well, what I am prepared to do is to make an interim order under section 77RH today which will cover the proceeding today and I will, if you wish, list your application for determination by me tomorrow or the following day. I would prefer it to be tomorrow.

MS ABRAHAM: Yes, I am happy with that. Is it possible for it to be other than 9.30 tomorrow?

HIS HONOUR: What time?

MS ABRAHAM: Eleven?

HIS HONOUR: Yes.

MS ABRAHAM: Thank you.

HIS HONOUR: Well, the order that I am prepared to make, and which I do make, is that until noon tomorrow there be no publication of information tending to reveal the identity of the applicant in relation to the application to stay the trial proceedings, the application for special leave and the application for non-publication orders, and I list the respondent’s summons

dated 19 January 2016 for hearing before me at 11.00 am tomorrow. Mr Reynolds.

MR REYNOLDS: Your Honour, the primary summons before your Honour today is the summons filed on 17 December of last year which seeks a stay pending the hearing and determination of my client’s application for special leave to appeal to this Court.

HIS HONOUR: Yes.

MR REYNOLDS: There have been filed the originals of two affidavits. First is an affidavit – they are both affidavits of John Tipple, but the first is dated 17 December 2015, that is, it was filed and affirmed on that date, and the second is one affirmed and filed on 21 December 2015, and I read both affidavits and tender the exhibits thereto.

HIS HONOUR: Yes, I take there is no objection, Ms Abraham?

MS ABRAHAM: There is no objection.

HIS HONOUR: The affidavits are read and the exhibits are admitted.

MR REYNOLDS: Your Honour, there is only one other evidential matter, and it is this, that the submissions which we filed in support of our application for a stay, your Honour may have seen that there were - in paragraph 5 of that document there was a reference to some events. There is an error in paragraph (ii) and I can indicate that there are two dates that are the subject of agreement between the parties on my instructions. The first is that the ICAC report referred to in that subparagraph was published on 5 June 2014 and the second is that the public hearings which gave rise to that report commenced on 28 June 2013 - I am sorry, 28 October 2013. I am sorry, your Honour.

HIS HONOUR: Mr Reynolds, we are looking at paragraph 5(ii)?

MR REYNOLDS: Yes.

HIS HONOUR: Do you want me to amend that in some way?

MR REYNOLDS: Yes, so that it reads, first of all, “5 June 2014”, and then “28 October 2013” in the second line.

HIS HONOUR: Thank you.

MR REYNOLDS: Subject to that, your Honour, there is no other evidence on the application.

HIS HONOUR: Yes, all right. Naturally, I have read your submissions, Mr Reynolds.

MR REYNOLDS: Thank you, your Honour. There has also been a summary of argument filed which – that is, on the special leave application which we have referred to in our submissions which I assume your Honour has also had access to and at least - - -

HIS HONOUR: Yes, that is a good way of putting it. Yes, I perused it.

MR REYNOLDS: Perused it.

HIS HONOUR: Yes, I am aware of the issues, I have read the judgment of the court below, and I am aware of the way in which you put your special leave application.

MR REYNOLDS: Thank you, your Honour.

HIS HONOUR: I am familiar with the authorities.

MR REYNOLDS: Thank you, I expect your Honour would be, although perhaps not Chaytor which is the UK Supreme Court.

HIS HONOUR: Not Chaytor, but certainly Boston and those early Australian cases.

MR REYNOLDS: Yes. Your Honour will remember that there are a number of matters that are usually pointed to on an application of this kind and it is convenient, if I may, to look at those various factors under those various rubrics.

HIS HONOUR: Yes, go ahead.

MR REYNOLDS: The first is the question of prospects of special leave. Your Honour will recall there are a couple of formulae floating around in the cases. One is that the applicant for a stay must show that his prospects are not insubstantial, and there is another formula saying the prospects must be substantial. The cases also say that your Honour is not to embark, as your Honour will recall, on a full hearing of the matter - - -

HIS HONOUR: Yes.

MR REYNOLDS: - - - but at least to form some view as to the applicant’s prospects of success on the special leave application.

HIS HONOUR: There were elements of your written submissions that couched your application as if it were an interlocutory injunction – serious question to be tried and then balance of convenience with exceptional circumstances being tacked on as an additional consideration at the end. I am wondering, Mr Reynolds, if that really captures the nature of the jurisdiction you seek to invoke.

MR REYNOLDS: Well, your Honour will recall that the question of balance of convenience, the question of – or whether there is going to be any prejudice to my client, the question of whether there is any prejudice to the Crown, are all matters which are picked up and referred to in the cases.

HIS HONOUR: They are certainly there, yes.

MR REYNOLDS: In putting the arguments in the order in which we have put them was really only leaving exceptional circumstances to the end because I pick up and refer to a lot of the things that I have referred to - - -

HIS HONOUR: Very well. All right, I will not cut you off.

MR REYNOLDS: But on prospects of special leave, your Honour will have seen that our special leave submissions assert that there are some rather important issues in this case, if leave were to be granted, of both a jurisprudential and constitutional kind.

HIS HONOUR: Well, constitutional, what do you mean by that? I mean, part of the reasoning in the judgments below referred to your apparent choice not to raise a large “C” constitutional issue.

MR REYNOLDS: Well, your Honour, we have submitted all the way through that we do not rely on a specific provision of the Commonwealth Constitution. The submissions which were put in our special leave submissions do not rely on the Commonwealth Constitution, nor do we have to to put the arguments that we wish to put.

HIS HONOUR: Yes.

MR REYNOLDS: It was only for more abundant caution that that course was no doubt taken, for example, in Egan v Willis. But these are large issues. Your Honour will have seen that in the Chaytor Case, which your Honour may not have had an opportunity of reading - - -

HIS HONOUR: No.

MR REYNOLDS: - - - these matters were dealt with by a Bench I think of nine or so – before the trial, I might add. There are important issues involved and, as your Honour appreciates, the High Court has not resolved any of the issues which we have referred to in the special leave submissions. So we are off, I would respectfully submit, to a good start in terms of raising issues which are sufficiently important and significant to warrant this Court’s attention and, in terms of it being an appropriate vehicle, or these points and there are a number of them, are front and centre of our argument, so there is no issue of that kind.

As your Honour will have seen, the only point that seems to have been taken against us is that somehow the reasoning in the court below is so powerful, it is asserted, that the reasons or the result is not attended by sufficient doubt and that that would be the submission that would be made in due course on the special leave application.

Your Honour will have seen that virtually the whole of our special leave submissions are directed at showing that there is, as we have put it in that document, grave doubt, we submit, about all of the key aspects of the Court of Criminal Appeal’s reasoning, and we have taken the approach of listing all of the arguments that we are going to be putting in that regard and it is significant, we submit, that the Crown has not taken up the cudgels in the written material before your Honour and said, well, notwithstanding all of those matters that are raised in that document there still is not any doubt at all about what the Court of Criminal Appeal said.

I mean, just to take two points, one on each of the two main ones, the only authority on official misconduct so far as MPs are concerned is the judgment of Justices Starke and Gavan Duffy in the Boston Case, and that is in our favour. Now, we submit that that is - - -

HIS HONOUR: Well, it is a dissenting judgment.

MR REYNOLDS: Well, your Honour, it is a dissent as to the result. They are the only ones who deal with this point of principle, so it is very difficult - - -

HIS HONOUR: Is the result in Boston consistent with your position?

MR REYNOLDS: Yes, your Honour. Certainly not inconsistent, no. Each of the Judges dealt with it, as we have put in our submissions, in different ways. Four of the Judges upheld the indictment on the basis that it asserted facts which could amount to other crimes but the only Judges to deal with official misconduct were the two I mentioned and they are in our favour, so it is a bit difficult for my learned friend to assert on that point that there is not some doubt or that this Court should not be looking at it.

So far as the point of exclusive cognisance is concerned, your Honour will have seen in our special leave submissions a number of formulae which have been referred to in the various other jurisdictions which have considered this issue and, of course, this Court has not, and we say those formulae are, as it were, up for grabs and we have - - -

HIS HONOUR: What is it factually that you say brings the circumstance of this alleged crime within the exclusive cognisance of the Parliament? What is it in the facts?

MR REYNOLDS: We dealt with that in some detail, your Honour, in paragraph 13 of our submissions, but we there focus on the precise issue which we assert is within exclusive cognisance which we have put in that document at the second line of paragraph 13, namely:

an adjudgment in terms that an MLC has misconducted himself in his capacity as an MLC –

Your Honour will see in this paragraph, and I will not read it to your Honour - - -

HIS HONOUR: Yes, I see the point, but it is put at that level of generality.

MR REYNOLDS: Well, we say that is not generality. These are matters - - -

HIS HONOUR: But I am just trying to gauge the level at which you put it and if it is the fact of him being an MLC and being alleged to have misconducted himself in that capacity.

MR REYNOLDS: In terms, and it is a finding in those terms, is exclusively a matter for Parliament because of the various matters we have referred to there. That is a matter appropriate for Parliament; only Parliament, for example - - -

HIS HONOUR: I understand that, I just wanted an answer to the factual question.

MR REYNOLDS: Now, the point for present purposes is that is an argument, and it is an argument, I might add, that has not been dealt with by the Court of Criminal Appeal who adopt a process of flicking off points and pillorying them but do not actually deal, we submit, with a key aspect of the submission that we have put to the court.

HIS HONOUR: I did ask you the question because I did not see in the judgment of the Court of Criminal Appeal a precise identification, the way in which you put it.

MR REYNOLDS: No, and that is part of the difficulty, we submit, is that those italicised words, at a rough guess I put to the Court of Criminal Appeal a dozen times, making clear what it is, and yet we do not see in the judgment any focus on that, nor any discussion of those matters that I have referred to in paragraph 13 and that lies at the heart of our complaint with respect about the treatment by the Court of Criminal Appeal.

Now, my learned friend’s responses to that – really, there are not any to these submissions on the special leave application – but in her written submissions she somehow suggests that on official misconduct the authorities are against us. I just do not know how that submission is made, with respect. Second of all, it is suggested that the – and we made that point with some force, in our special leave submissions we have put the submission high, that is, that there are not any authorities that are against us, nil, and I have put it that high and I do not resile from that position.

There are also a whole string of other learned jurists who have taken the same view and they are listed, they are about half a dozen of them in the submissions, and I put to the Court of Appeal and I will be putting again if leave is granted to this Court that so far as there is any authority, and it is limited, it is all one-way traffic so far as that issue is concerned in my client’s favour. So there has not really been any attempt by the Crown to demonstrate that these matters we have raised in our special leave submissions do not amount to serious doubt.

The one matter that I do need to address which my learned friend on behalf of the Crown raises is the proposition that my client could take the two points after the trial on an appeal from conviction. Can I deal with that because there are a number of things that we say about that? One is that that would mean that my client was at risk if he was convicted, as we have put it, on the merits by a jury, that if he were later to be able to establish that the crime or that the charge is invalid or that the court did not have jurisdiction, then he would still be left high and dry with a conviction on the merits against his name which he could never remove.

Closely related to that, in one sense, is this, that if this Court were to find that the Supreme Court did not have jurisdiction or that the charge was invalid, it would mean that my client was in jeopardy of being dealt with by the Legislative Council, as we have asserted he is, but the problem is that by that stage he will already have disclosed his defence and will already have put his arguments and called his evidence before the Supreme Court, and that is a substantial amount of prejudice to him that would arise if this matter were not dealt with – this question of jurisdiction, this question of the validity of the charge as a threshold matter.

The other matters that we have raised – and I am not going to go on and on about this, your Honour, there are a number of cases that talk – including Sir Harry Gibbs and Justice Gaudron about the right of an accused not to be tried or exposed to a trial on an invalid charge - that is one thing. Next, the arguments, as we have said, are jurisdictional or quasi-jurisdictional, and your Honour does not need me to say that normally issues going to jurisdiction are dealt with at the threshold.

Next, there is also the issue that if the Supreme Court does assume jurisdiction then that would, on our argument, amount to a contempt of the Parliament and an infringement of their privileges. Over the top of all of that, there is the prospect that my client is put to the cost, to the stress, to the inconvenience and the damage to his reputation which would flow from a trial on what may later be found to be an invalid charge, and those items of prejudice can never be remedied.

So, in a nutshell, those are the factors to which we point as to why, notwithstanding that this would be an interlocutory appeal, it would be appropriate for your Honour to grant a stay.

HIS HONOUR: Yes.

MR REYNOLDS: Your Honour knows that the cases on fragmentation are not without qualification. We have put in our submissions in paragraphs 33 to 34 and my learned junior, Mr Hume, has gathered together quite a few cases there, but the gist of what is there said is that talk about fragmentation is really only a reference to what is ordinarily the position or to a general proposition which is subject to exceptions and one of the principal exceptions is where there is a challenge to the validity of the charge. Your Honour will remember a lot of those cases that are there.

HIS HONOUR: Yes.

MR REYNOLDS: Many of the cases that constitute, as it were, exceptions to this notion of fragmentation are matters that go – or have been cases that deal with validity. We have also said in paragraph 34, referring to the case of Gedeon that there are also situations where there is sufficient public interest in the issues that are raised where that may be a reason that, notwithstanding that there is some fragmentation, the court is nonetheless prepared both to grant a stay and also to grant special leave, as happened in that case.

We submit that there are some important matters of public interest that are raised by the arguments that we wish to put on the appeal if leave is granted, including the importance of the legal issues involved. But also more generally, it is important that the elements of this offence be clarified.

It will not have escaped your Honour’s notice that a fair few politicians, particularly in this State, have been brought before the Independent Commission Against Corruption and this is one of the main potential weapons in the State’s armoury to deal with politicians who have misbehaved or have otherwise misconducted themselves. The question of whether or not they are covered by this offence and the question of whether or not that is a matter for Parliament is, we submit, an important issue and it is in the public interest that that issue ought be determined.

There is already another case, there is no issue between the Crown and us on this, that potentially involves the same issues, but I submit that it is not mere surmise on my part to suggest that there are likely to be in the future other cases that raise the same issues, particularly if they are not finally resolved by this Court. Put another way, it is, I submit, likely that this Court will have to look at this issue at some time and resolve those two issues. Sorry about my voice, your Honour, I am struggling - - -

HIS HONOUR: No, that is all right, Mr Reynolds. I do note, Mr Reynolds, that you have had roughly double the time you would have on a special leave application, so I assume you are getting close to the end of your submissions.

MR REYNOLDS: I am, and I can wrap things up very briefly. Your Honour has heard about half a dozen points on why there is prejudice to Mr Obeid if a stay is not granted and I will not repeat those.

HIS HONOUR: Yes.

MR REYNOLDS: The next point is there is no prejudice to the Crown, we assert, if a stay is granted. When one looks next at the balance of convenience, that is the damage that would flow – prejudice would flow to my client if a stay was not granted as against the prejudice that would flow to – if a stay – I withdraw that – a prejudice which the Crown would suffer if a stay was granted that the balance is all one way. Your Honour, I think that the points that I have made collectively establish exceptional circumstances. I will not read them out point by point again, but there are seven or eight of them. I think your Honour is apprised of them.

HIS HONOUR: If they are the ones in your written submissions, I have looked at them. Your point about being put in jeopardy of further

proceedings in the Legislative Council is not something that I saw in your submissions.

MR REYNOLDS: No, it is not, I accept that. There is also the fact that it goes to the validity of the charge, it goes to jurisdiction, there is contempt of Parliament, the public interest in the resolution of these issues, a prejudice to my client, no prejudice to the Crown, the balance of convenience. There is just one matter, your Honour, that I would like to deal with before I finish, and can I hand to your Honour a copy of a couple of excerpts which my learned friend has had access to from these two cases?

HIS HONOUR: Yes.

MR REYNOLDS: The reason we have handed these two authorities to your Honour is that my learned friend in her submissions keeps stressing the point that a stay is not necessary to preserve the subject matter of the litigation. Your Honour will see that in both of these quotations there is reference in the alternative, that is, by the use of the word “or”, that if the stay is necessary to maintain the status quo, we say the status quo here would be very much affected if my client had to pursue his rights on an appeal from conviction, again relying on the various matters to which I have taken your Honour and which I will not repeat yet again. If the Court pleases, those are my submissions.

HIS HONOUR: Thank you. Ms Abraham.

MS ABRAHAM: Your Honour, in our submission, there is no basis warranting the grant of a stay in this case and, indeed, in our submission, my friend has not established exceptional circumstances. We have dealt with the law in our written submissions, I do not propose to traverse that, but I do want to make some observations about my friend’s written submissions and his oral submissions today.

HIS HONOUR: Yes, thank you.

MS ABRAHAM: First, your Honour, my friend has made submission in writing that any delay will be short. That is at, I think, paragraph 23 of his submission. In my submission, that is not so. The trial judge who ruled against a stay quite properly found that the adjournment would be substantial, although for an unspecified time, and, with respect, he is in the best position to know the listing system of the New South Wales court, but it is also in a context where this trial has already been adjourned once. It was listed in October, as is clear from the chronology that is at the beginning of Justice Beech-Jones’ judgment.

The application that is ultimately the subject of this argument, pending argument on special leave, was brought shortly before the hearing of the trial. The trial was adjourned pending the Court of Criminal Appeal judgment in the matter, so it has already been adjourned on one occasion. To suggest, in my submission, as my friend has in his written submissions, that it would be short is clearly rejected. Indeed, to suggest that it would be short except if leave were granted, in which case he would be vindicated, misconceives the granting of leave.

Of course, that does not mean that he has been vindicated. One would have to succeed on the argument. In my submission, his Honour Justice Beech-Jones quite correctly concluded that to do so you would need to persuade this Court that a parliamentarian who acted outside the parliamentary chamber and used his position to secure pecuniary advantages to themselves or their associates from the Executive would be immune from the criminal law and, unlike other public officers, would be immune from this offence. In my submission, in those circumstances the success ultimately of my friend’s argument would, in our submission, be very low indeed.

Just on that question of fragmentation which, in our submission, is extremely important according to the authorities in relation to a criminal trial, I note that there is a complaint in the written submissions about the delay by the Crown. I simply observe that there has been no finding, quite clearly, that there has been any dilatory conduct by the prosecution and there could not be. I note also that there is no application of expedition been filed in relation to the special leave application, a point that Justice Beech-Jones observed.

The fragmentation concern in relation to criminal matters, in my submission, applies – and your Honour will have seen our authorities on that – even where there is a good point to be argued in this Court, and we say that the arguments to be had by my friend are, with respect, without merit.

The second point of observation is that my friend suggests in his written submissions and, indeed, to some degree on his feet today, that to proceed or not to grant a stay would be to proceed without the jurisdictional issues having been determined. Well, with respect, they have been determined, they have been determined by the New South Wales Court of Criminal Appeal, and unlike a number of the cases my friend refers to in paragraph 33 of his submissions, this is a case which has gone through two levels of the court system already.

A number of the judgments referred to in paragraph 43 are matters that were removed from this Court that did not have intermediate judgments and a number of them relate to Commonwealth matters. There is nothing apparent in the judgment in relation to the fragmentation issue at all because they are final judgments, in effect, but some, for example, some of the more recent ones, ones dealing with quite particular situations, in my submission, unlike this, they do not create, in our submission, a special category that exceptional circumstances is satisfied if there is a constitutional point or a jurisdictional point and his Honour the Chief Justice in Alqudsi, in my submission, clearly reflects that.

Can I make an observation about Polyukhovich which is referred to? I do not know if your Honour is familiar with the stay aspect of Polyukhovich. Your Honour will be well familiar with the other aspect.

HIS HONOUR: No.

MS ABRAHAM: Your Honour, my friend refers to that in paragraph 33. That is a rather particular case because the issue of fragmentation – the trial was not to commence for some time. Her Honour Justice Gaudron referred to a humane consideration. The man was a very elderly man. There were issues of fitness to plead. The only thing that was stayed was the fitness aspect, not other aspects of the trial, and it was concluded that it would not fragment the trial because the trial was not going to commence for some time, in any event, because of witness issues.

So there is no general proposition that can be drawn from that. Again, that was a removal case. That was not a case that had gone to the Court of Criminal Appeal and could not have gone to the Court of Criminal Appeal - there is no interlocutory process in South Australia. So, in our submission - - -

HIS HONOUR: That was a stay application heard and determined by Justice Gaudron?

MS ABRAHAM: That is right.

HIS HONOUR: Yes.

MS ABRAHAM: So, in some senses, that challenge, unlike this one, had not been determined because it was a removal, as I said, in a number of those matters that my friend refers to. Indeed, a number actually relate to stays of proceedings; of course, a stay of - in abuse of process stay of proceedings. If those points are not taken, interestingly enough, and the trial occurs, the point is actually lost, as your Honour would be aware, so they are different.

In my submission, here we have two levels of judgment and judges, including the Court of Criminal Appeal, and we say that the judgment of the Court of Criminal Appeal is clear and more reasoned and, in our submission, is clearly correct.

The third observation relates to my friend’s submissions about prejudice. He has repeated in writing and today orally that there is no prejudice to the Crown. That was quite clearly rejected by his Honour Justice Beech-Jones, and for proper reason. That fails to appreciate the fragmentation process and the public interest in having trials heard and determined in an expeditious manner without interference.

In relation to the matters raised as prejudice to the accused, the accused, or the applicant, in my submission, is in no different a position than any other applicant in these circumstances; that is, that has sought rulings, wanting the matter to go to the High Court prior to his trial being heard because of stress, expense and all the rest of it. So, in my submission, there is nothing peculiar about this particular matter that takes it outside the realms of the norm.

Fourth, in my submission, his Honour Justice Beech-Jones quite rightly concluded that the rights of the accused to have not been prejudiced in any way he can agitate these grounds in due course if he is convicted. In my submission, those matters, in light of the authorities applicable to stays in criminal matters, lead to a conclusion that this case is not exceptional. In my submission, the authorities make it clear that even if there are powerful arguments that that is not sufficient, in my submission, to get over.

HIS HONOUR: Yes.

MS ABRAHAM: Might I add, in our submission, there are not powerful arguments. My friend has been critical that the Crown has not taken up the cudgel to say that, having looked at his submissions, that the case nonetheless is still – that the judgment of the CCA is still correct. In my submission, having considered his arguments, the case – the judgment of the CCA, in our submission, is indeed correct, and a proper reading of the judgment in light of my friend’s arguments, in particular in light of his criticisms, are not borne out, they do not withstand scrutiny.

Can I take an example that my friend took, and that is the complaint that there was no test provided in relation to exclusive cognisance? The court took that point at my friend’s highest in paragraph 50 and said the facts did not come within it, so it has been dealt with and my friend’s submission on that is a misconstruction or a misreading of the judgment.

Taking the other argument he raised about Boston, in my submission, the Court did properly analyse the relevant authorities, and on those authorities modern trend clearly does support its conclusion. Just pausing there, your Honour asked my friend is Boston against or inconsistent with his arguments. In my submission, it is, indeed, inconsistent with his arguments. It is inconsistent with his argument on both the first and second aspects, so both grounds 1 and 2, and the CCA clearly point that out.

Chaytor, a case referred to by my friend, is also inconsistent with this argument. Significantly, that aspect of it is not addressed in his written submissions. In our submission, his written submissions raise questions of a level of generality that are not applicable to this case and are not necessary to determine. The submissions make assertions without authority and in some instances where there is authority cited, that authority does not support the assertion contained therein.

The submissions do include instances of misreading of the judgment. They ignore that the court approached the issue on a number of assumptions very favourable to the applicant, without deciding various issues, the example that I mentioned in paragraph 50 being but one of the examples.

Notably, the submissions do not deal with cases like Boston on the exclusive jurisdiction or Chaytor, which are clearly contrary to his arguments. Rather, in my submission, my friend has made a very bold, broad assertion in paragraph 13, unsupported, in my submission, by authority. This is an indictment against an applicant that does not make any allegations in relation to any conduct within the walls of Parliament. The indictment does not concern matters incidental to parliamentary speech or proceedings in the Parliament.

To go back to something that I said a little earlier, which is the conclusion of Justice Beech-Jones, to succeed the applicant must persuade the Court that parliamentarians, who act outside parliamentary chamber and use their position to secure pecuniary advantages to themselves or others from the Executive are immune. In my submission, that is correct and his Honour quite rightly concluded that that was – the prospect of convincing a court of that is low. Can I just raise one matter on public interest that my friend has raised?

HIS HONOUR: Yes.

MS ABRAHAM: Your Honour, his submission makes reference to there being one other matter, at least that the issues relate to. Can I indicate, on my friend’s argument – sorry, there is another trial in March. We accept that. But, on my friend’s argument, only one of the aspects could apply to

that trial as at trial the person is a minister at the time and therefore on my friend’s argument would be a public officer.

Secondly, my friend has made the submission that it is necessary to determine the elements of the offence. The elements of the offence have been determined and that is not the subject of any of the special leave questions. The CCA dealt with that issue, so it is not the subject of special leave. So, in our submission, when one applies the correct principles in relation to a stay for criminal proceedings no exceptional circumstances are warranted – have been established in this case.

HIS HONOUR: Thank you.

MR REYNOLDS: Your Honour, I have to take issue with quite a lot of what my learned friend had to say. My learned friend, perhaps starting with the end of her submissions, said the elements had been determined. What, I ask rhetorically, is the test of the status of the person who is caught by this offence? That is the key issue that the Court of Criminal Appeal had to look at and we do not have a test. I am happy for my learned friend, if there is a paragraph in the judgment she wants to point out while I am on my feet that deals with that, but the point is there is no test.

There are also issues about the nature of a duty that has to be breached, and this is in our submissions on the special leave about whether it is confined to legislative duties, which is what Justices Starke and Gavan Duffy said, or, on the other hand, some broader connection is sufficient. So there are at least three aspects of the elements of the offence that are not certain and that would need to be looked at by this Court in order to determine the issues that we have raised.

Next, my learned friend talks about Boston and says that somehow, properly analysed, it is against my client but does not say why other than to say “the modern trend supports its conclusion”. Those words are at the heart of our complaint about what the Court of Criminal Appeal has done and about my learned friend’s submission on the point, and that is that that is so vague a proposition as to be almost meaningless. The problem is that only two of those four Judges have considered that crime and we know what they said.

Next, my learned friend says well the approach taken by the Court of Criminal Appeal has been to posit the test of exclusive cognisance put by Mr Obeid, take it at its highest, then assess it in accordance with the facts that are put by Mr Obeid and that it fails on the test most favourable to him and taking into account all of the matters that he referred to.

Your Honour, it is my unfortunate duty to submit that that is baseless. There is no suggestion in this judgment of taking the test that we articulated as the highest test, which we have put in our submissions on the special leave at paragraph 11. There is no suggestion of this test as to what is appropriate or reasonably necessary or clearly adapted to the needs and purposes of the body. That is the test which we put as our best test in our favour and that is never ever ever looked at by the Court of Criminal Appeal, nor are the factors that we point to, which are in paragraph 13 of our submissions, dealt with by the Court of Criminal Appeal.

Next, my learned friend, dealing with our submissions about the Court of Criminal Appeal and doubt, tells your Honour that she has looked at the Court of Criminal Appeal’s judgment and that it does withstand scrutiny and there is not any doubt about it. With great respect to my learned friend one has to do better than that.

Where the submissions that are laid out in great detail as to what the problems are with the Court of Criminal Appeal’s judgment, one cannot just proceed at a massive level of generality and say what you think about the judgment without descending to respond to the detail of the argument that has been put. That has not been done on even one single point, let alone the dozens and dozens and dozens of matters which we have listed by reference to number in our various submissions.

My learned friend talked about prejudice to Mr Obeid and said that he did not suffer any different prejudice from any other applicant who is in his circumstances, but that is our whole point. It is that his particular circumstances do involve prejudice way over and above the sort of prejudice that one would normally be dealing with with a person who is charged with a criminal offence. I have mentioned all of those factors before. They are most unusual. For example - - -

HIS HONOUR: You have mentioned them before.

MR REYNOLDS: I have, but if I can just mention one. The imperilment of his trial in the Legislative Council, for example, puts this case in a very, very different category from anything that not only has gone before in this Court but is likely to happen again.

Next, my learned friend talks about Polyukhovich but did not deal with the most important part of it which is at the end of paragraph 33 of our submissions on the stay, that is where Justice Gaudron said that it would be a most extraordinary case if the prosecution were to proceed to conviction and punishment whilst the question of the validity of the charge remained unresolved.

Next, my learned friend said that the cases that we have referred to, particularly in paragraph 33, in effect, or most of them are removal cases rather than cases where jurisdiction has been determined by the lower courts. Your Honour, that is not so. For example – this is just from my memory, Monis went through from the District Court to the Court of Criminal Appeal to this Court. So did Jago and there are also other cases there. I think Barton and Maxwell but I am uncertain. The point is there are cases where the courts have gone through a number of interlocutory stages and yet this Court has granted special leave.

Next, my learned friend seeks to make some point about there being no application for expedition of the special leave. Your Honour, we moved, as your Honour will have seen from the affidavit material, urgently to try and get a stay of proceedings knowing that as a matter of practice this Court would deal, on such a stay application, as Justice Hayne did in a case I can take your Honour to if necessary, where the Judge will deal with the question of expedition of a special leave application on the stay of the application for a stay, which is what I would be doing now if your Honour were to grant a stay.

HIS HONOUR: Mr Reynolds, we would be in a completely different position if you had sought expedition of the special leave application in December.

MR REYNOLDS: Well, your Honour, we sought an application of the stay and we were told that it would not be possible under any circumstances to get that matter listed and that is when I would have sought the necessary expedition of the special leave application if that matter had been listed. We took that to mean that the Court did not have any time available to it.

The discussions were referred to in the affidavit and it was a matter for this Court to determine how urgently it wanted to list the matter and it did not list it before today. I submit that we have moved as quickly as possible in order to raise the issue of a stay and we would have raised the question of expedition on that very date and I will raise it with your Honour in a moment if your Honour were to grant a stay.

Your Honour, there are only a couple of matters to conclude. One is my learned friend talked about this being a case where my client either sought or obtained pecuniary advantage. Such a case was disclaimed in the Court of Criminal Appeal by the Crown. Finally, your Honour, on the issue of delay, we submit there are two aspects of that. The first is that so far as any delay is concerned in terms of getting the special leave on, that need not involve any delay beyond the middle of the year at the outside. We submit that when Justice Beech-Jones talked about July, that of course is subject to other judges or any judge becoming available – for example, if there are

settlements in the Common Law Division and this is only a two to three week case.

So in the scheme of things we are not talking about any substantial delay until that point. The point we make about any further delay is that that is a matter which this Court could deal with and address on any further application, that is on the application for special leave itself, and it would be within this Court’s capabilities to have the matter listed urgently for special leave and if necessary, or if it regards it as appropriate, to have the hearing of an appeal listed with expedition. If the Court pleases, those are my submissions.

HIS HONOUR: Thank you, Mr Reynolds, just bear with me for a moment. I am in a position to proceed to rule on this application now.

“Judgment was delivered”.

The order which I therefore make is that the applicant’s summons filed on 17 December 2015 be dismissed.

I now adjourn to 11.00 am tomorrow to deal with the respondent’s summons.

AT 10.58 AM THE MATTER WAS ADJOURNED