NH v The Director of Public Prosecutions; Jakaj v The Director of Public Prosecutions; Zefi v The Director of Public Prosecutions; Stakaj v The Director of Public Prosecutions [2016] HCATrans 93 (27 April 2016)

Last Updated: 28 April 2016

[2016] HCATrans 093

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A14 of 2016

B e t w e e n -

NH

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
Adelaide No A15 of 2016

B e t w e e n -

RROK JAKAJ

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
Adelaide No A16 of 2016

B e t w e e n -

DAVID ZEFI

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
Adelaide No A19 of 2016

B e t w e e n -

DARIO STAKAJ

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for suppression/non-publication orders

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 27 APRIL 2016, AT 9.29 AM

Copyright in the High Court of Australia

____________________

MR A.P. KIMBER, SC: If the Court pleases, I appear for the respondent in the appeals, but I am the applicant with respect to this morning’s summons. (instructed by Director of Public Prosecutions (SA))

MR M.J. LUTT: If the Court pleases, I appear for the appellant, NH. (instructed by Legal Services Commission of South Australia)

MR B.J. SALE: Your Honour, I appear for the appellant, Jakaj. (instructed by Ben Sale Solicitor)

MR S.A. McDONALD: Your Honour, I appear for the appellant, Zefi. (instructed by Patsouris & Associates)

HER HONOUR: Mr Kimber, I have seen and been provided with a draft of your order. Can I ask a practical question and that is this? I understand paragraphs 1 and 2. In relation to the confidential volume I looked at the materials that were filed in the courts below. Is there any reason why those affidavits cannot have their names redacted and instead have their jury number inserted to avoid this issue? I understand the books have not been prepared yet.

MR KIMBER: There is no reason, your Honour, that I can think of why there cannot be redaction of the names, but that will not then deal with the issue which is the subject of the second draft order which is the issue of actual - - -

HER HONOUR: No, I understand – I am dealing with paragraphs 1 and 2 and I understand why they are needed because the Court file has on it materials from the courts below. So I accept that and I accept that that prevents disclosure for the purposes of the hearings except to the extent necessary to enable the appeals to be determined. But in order to avoid this ongoing issue, it seems to me it would be very straightforward for the names of the jurors just to be redacted and in their place their jury number to be inserted.

MR KIMBER: I am happy to help facilitate that, your Honour, and I agree. That could be done.

HER HONOUR: The only point I noticed when I looked at the application book – and I am sure your instructors will deal with this – was that not only did their names appear on the covering page of the affidavit and in the initial sentence, that is the initial “I swear on oath”, but also their names appeared in the exhibit note in two places. So someone will have to be very careful about it.

MR KIMBER: Yes, your Honour.

HER HONOUR: The only other thing I would ask is this. On reflection I think it should be – there are two questions I want to ask. Paragraph 3 would then need to go because it is unnecessary on the assumption that your instructors get it right. In the third line and the fourth line of paragraphs 1 and 2 respectively, I propose to add the words “or further order” on the basis that the Court, when the appeal is heard, may itself make orders dealing with this question. Mr Kimber, can you hear us now?

MR KIMBER: Yes, your Honour, I heard you before the link went down speak of adding some words to paragraphs 1 and 2, and your Honour probably - - -

HER HONOUR: Yes, I was about to explain that after the words “decision in these proceedings” I propose that we add three words “or further order” which would permit the Full Court of this Court on the appeal to deal with any question or further question about the identification of the jurors.

MR KIMBER: Yes, your Honour, thank you. I agree.

HER HONOUR: I have one other question for you – sorry about this. Why is paragraph 4 necessary, given there is a right under the Act to apply?

MR KIMBER: I suggested that be included purely as a matter of completeness because I did not anticipate that any of the parties mentioned in section 77RG(2) would be present today but I agree, your Honour. There is always the opportunity for a further application to be made, though it probably is unnecessary.

HER HONOUR: Thank you. So I will delete paragraphs 3 and 4 of proposed order and then I will add, as I have indicated, the words “or further order” in paragraphs 1 and 2 after the word “proceedings”.

MR KIMBER: Thank you, your Honour.

HER HONOUR: Otherwise I will make orders in those terms. Thank you for your attendance, you are excused.

MR KIMBER: Your Honour, can I just raise one procedural issue that Mr McDonald quite properly raised with me this morning.

HER HONOUR: Sure, yes.

MR KIMBER: Mr Zefi, at least, in his summary of argument has referred in part, in particular in paragraphs 74 and 75, to aspects which are now suppressed. It seems to me that it will be now be necessary for the parties potentially to file redacted copies of summaries of argument which could then be put onto the website which would then be in accordance with these orders. That appears to be a matter that, at the moment at least, can be sorted out procedurally and we need not trouble your Honour with, but I thought it best to raise that because in my submission there will need to be careful attention to the way summaries of argument are drafted or redacted.

HER HONOUR: All right. My present view, unless someone tells me otherwise, is that they should be redacted, but if you adopt the juror number then that problem should go away.

MR KIMBER: Yes, although there is the issue of content. Mr Zefi, in his summary of argument, refers to some of the content and, of course, there will be a debate in the appeal about whether all aspects are confidential in terms of what will come within jury deliberations or whether only part and that - - -

HER HONOUR: I accept that, but these orders that I am dealing with this morning deal with identity of any of the 12 jurors, so to that extent – and then paragraph 12 deals with the content.

MR KIMBER: Yes, and for that reason - for example, Mr Zefi has referred to part of the content. It will be necessary, in my submission, for him to file a redacted copy that is in accordance with these orders but that can be done procedurally in discussion with the Registry, I would think, without troubling your Honour to make any order today because it would be consistent with your Honour’s orders, particularly paragraphs 1 and 2, redacted copies be filed.

HER HONOUR: All right. Mr McDonald, does that address your concern or is there another issue you want to address?

MR McDONALD: No, I think that addresses the concern and I expect that with discussions with the Director we can sort out exactly what needs to be redacted and how we will do that. Thank you, your Honour.

HER HONOUR: If there is a problem you can let the Court know. Thank you, you are excused.

AT 9.37 AM THE MATTERS WERE ADJOURNED