UD v The Queen [2020] HCATrans 61 (28 May 2020)

Last Updated: 28 May 2020

[2020] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C7 of 2020

B e t w e e n -

UD

Applicant

and

THE QUEEN

Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 28 MAY 2020, AT 9.29 AM

Copyright in the High Court of Australia

MR J.S. STELLIOS: May it please the Court, I appear for the applicant. (instructed by Legal Aid ACT)

MR N.S. DRUMGOLD, SC: May it please the Court, I appear with MS K.L. McCANN for the respondent. (instructed by ACT Director of Public Prosecutions)

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory: May it please the Court, I appear with MS H. YOUNAN for the Attorney‑General for the Australian Capital Territory intervening. (instructed by Australian Government Solicitor)

HER HONOUR: Thank you very much. The Court has listed this matter for directions because, on receipt of the submissions filed by the Attorney‑General for the Australian Capital Territory intervening, it became apparent that some of the factual bases upon which the Court had removed the cause into the Court and, in effect and in addition, when one looks at the submissions filed by you, Mr Stellios, a lot of the factual basis had on its face changed.

I thought I might run through those matters because the Court’s concern is that we are not certain that the applicant’s trial would not be a jury trial. I will explain why that is the case. As you know, the Court does not take on matters which are hypothetical.

The factors that are of concern to us, and I will put them out and then you might respond to them if you would – the order is a proposed order as is made apparent by the email sent by your instructors to Justice Elkaim’s associate. That order is subject to recall and at present it would appear that there is a possibility that it might be recalled. The press release by the Chief Justice talks about the fact that jury trials are going to recommence on 15 June. It does not identify which ones are in and which ones are out. For present purposes that can be put aside.

In response to the inquiry about whether or not that change in the practice of the Supreme Court would affect the applicant’s trial, his Honour’s associate says not at this stage, but the parties are free to relist the matter before his Honour and one wonders if that is not the appropriate course in order to ascertain whether or not there will be a jury trial. I say that for this reason because, as the affidavit that your instructors filed yesterday showed, this plus some other trials which are apparently jury trials, are listed for four weeks to commence on 31 August for a period of four weeks from that date.

Now, I know the situation is fluid and a lot happens in three months. A lot has happened in the last three months and in those circumstances it cannot be seen, at least on the face of it, to be said that your client will not have a jury trial.

MR STELLIOS: Your Honour, I will endeavour to address all of those points. I might start, your Honour, with a short statement of what our core position is on whether or not the constitutional issue before the Court is moot. I will start with a short statement of my argument and then I will develop it.

The short statement is this, your Honour. As things currently stand the question of validity remains on foot and has foreseeable legal consequences. The only way for the applicant to avoid a judge‑only trial is to go back to the trial judge, as your Honour has pointed out, go back to the trial judge to have the proposed order reconsidered.

Your Honour, it is my submission that that is a sufficient legal consequence, the burden that is placed on the applicant to have to go back before the court before the trial judge - that is a sufficient legal consequence to make the constitutional issue before this Court a live one and continuing to be a live one.

HER HONOUR: The problem is that your proposed order is subject to recall. Put it the other way. Given the announcement there is nothing stopping a court itself calling the order in and saying we have changed our mind. In a sense that is what the email suggests. You are free to relist it. You are free to go back and ask for it to be reconsidered. I do not know what the circumstances are in terms of which ones are in and out.

MR STELLIOS: Your Honour, the only way that the proposed order will be reconsidered is if either the trial judge unilaterally determines to revisit the proposed order and the email correspondence which your Honour referred to between Ms Morrisroe and the judge’s associate indicates that as things currently stand the media release by the Chief Justice is not sufficient, as things currently stand, is not sufficient for the proposed order to be reconsidered. So the only other way in which the order can be reconsidered is for the applicant or one of the other parties to be placed under the burden – the legal burden of returning to the court to have the ‑ ‑ ‑

HER HONOUR: Why would you not do that?

MR STELLIOS: Your Honour, if ‑ ‑ ‑

HER HONOUR: Because that then would give the court a certainty about whether or not your client.....jury trial ‑ ‑ ‑

MR STELLIOS: Yes, your Honour.

HER HONOUR: The issue – the management of the trial is something that the Court ordinarily does not interfere with. This is unusual circumstances.

MR STELLIOS: Yes, your Honour.

HER HONOUR: Why do we not....I do not think, presently advised – as I said I am happy to hear the submission that there is a sufficient factual certainty that your client will not have a jury trial.

MR STELLIOS: Your Honour, my first submission is that if the applicant is correct that the constitutional validity – sorry, your Honour, if the applicant is correct that section 68BA is invalid, then the applicant should not be placed under the burden of returning to the court to have the matter reconsidered under an invalid provision. But, your Honour, if that submission is not accepted, if the submission is not accepted that there is a sufficient legal consequence ‑ ‑ ‑

HER HONOUR: The difficulty about that is that you are not asking for it to be reconsidered under 68BA. You are asking for it to be reconsidered as a jury trial in accordance with usual practice giving rise to having regard to the media release.

MR STELLIOS: With respect, your Honour, the proposed order is one made under section 68BA.

HER HONOUR: It is a proposed order. It has not been perfected.

MR STELLIOS: No, it has not, your Honour. Your Honour, the alternative position would be that if it were necessary for – in order to maintain this proceeding that the applicant go back before the trial judge to have the proposed order reconsidered then I would seek an order that this proceeding be stood over for seven days for that to occur or, indeed, seven days to identify an additional plaintiff that might secure the currency of the issue before the Court.

HER HONOUR: Have you raised this alternative with the other party – with either the Attorney‑General for the Australian Capital Territory intervening or with the Director of Public Prosecutions?

MR STELLIOS: No, I have not, your Honour.

HER HONOUR: At the moment, as you know, Mr Stellios, one of the other things that concerned me was what was set out in the affidavit which seemed to be the maintenance of this proceeding for the benefit of people who are not parties. Unless there is very good reason, it would seem to me that the preferable course would be to revoke the order and you to get your house in order and, in effect, then reapply, having got a proper factual basis for it, that is, going back before Justice Elkaim or before the Chief Justice to ascertain what the position is. Were these issues raised when the matter went before the Chief Justice on 10 May?

MR STELLIOS: Your Honour, I was not involved then in those proceedings.

HER HONOUR: I see. All right, I will hear from the Solicitor.

MR STELLIOS: Yes, your Honour.

MR GARRISSON: Thank you, your Honour.

HER HONOUR: I would assume you have heard with my exchange with Mr Stellios that I am gravely concerned that there is no factual certainty for this matter that has transpired over the last couple of weeks and what is apparent to be transpired or may transpire over the next month or so, maybe even two or three months ‑ ‑ ‑

MR GARRISSON: Your Honour, I think pragmatically the course that has been suggested, that is take the matter back before his Honour Justice Elkaim who can then either make the order in which case, respectfully, I think this matter could proceed or not. If his Honour does not make an order for there to be a trial without a jury then this matter may be otiose. But I think that to withdraw this Court’s leave for the removal at this juncture may be a little premature, having ‑ ‑ ‑

HER HONOUR: I do not know about that. I am not going to leave it in the list on a factual basis which is clearly not made out. One only has to compare the applicant’s written submissions with yours to realise that the factual basis is live and not certain. It would require preparation by new submissions it would seem at least from the applicant. It seems to me it is much better, especially if there is to be a different addition of parties for order for the removal to be revoked and for it to come back if at all on a proper basis.

MR GARRISSON: Certainly, your Honour, if there were to be, for want of a better term, substituted parties, that would have to be the appropriate course. If his Honour Justice Elkaim confirms or perfects his order, that is a changed circumstance but only, for want of a better term, small changed circumstance which I would respectfully submit could be readily accommodated within the existing proceeding. The period of time that my learned friend, Mr Stellios, has indicated is seven days. Whether any ‑ ‑ ‑

HER HONOUR: I think the difficulty about the seven days is that it – and I do not know because the media release does not make it clear and it is apparent from – I do not actually understand how it sits with the order that was made by the Chief Justice listing these four trials for a four‑week period from 31 August when some of those are jury trials.

So it seems to me that it is more than a seven‑day issue. It is a question about whether or not this applicant will have a jury trial and that is a matter that may be able to be ascertained now. I know, for example, in Victoria both the Supreme Court and the County Court have started jury trials. Other States have done the same. As I said, if one looks at the applicant’s submissions they are predicated on a basis that there will be no jury trials when clearly there will be. That affects the way in which the submissions are considered.

MR GARRISSON: With respect, that is perfectly correct, your Honour, and one of the points that the Attorney‑General has made in his submissions is that in fact the law does not prevent jury trials. But aside from seeking some reconsideration by his Honour Justice Elkaim in relation to the order, which I think is an appropriate course, if your Honour is minded to deal with this proceeding on the basis that there will be a substantial change, perhaps simply stand this matter over for a few days to enable that course to be determined.

HER HONOUR: As I said, I am not minded to do that. This Court does not act on uncertainties. It is of grave concern to me. I think it is better that the order is revoked. As I said the submissions will have to be redone on any view, given the change in circumstance. That does not of course remove at all the ability to apply on a proper basis with a proper foundation of facts that give rise to some certainty upon which this Court would act. It affects the way in which you look at the very arguments the applicant makes and which you seek to respond to.

MR GARRISSON: Yes, your Honour.

HER HONOUR: Let alone the ability to determine them.

MR GARRISSON: I really cannot take the matter any further, your Honour.

HER HONOUR: Yes. I will have a discussion with Mr Drumgold.

MR GARRISSON: As your Honour please.

HER HONOUR: Thank you. Mr Drumgold, I understand that you, in effect, filed a submitting appearance in this matter but the Court has asked for your attendance because of the role that you played in the prosecution of this matter in the Supreme Court of the Australian Capital Territory.

MR DRUMGOLD: Yes, that is so, your Honour. The only addition that I could make is my reading of the exchange between his Honour Justice Elkaim and my friend, the applicant, was the question posed was whether or not the mere production of a media release will impact his considerations on whether to make the proposed order final. His Honour’s response seemed to be not purely on the strength of the production of a media release absent any oral submissions, so I am in agreement with your Honour that it would seem appropriate that those oral submissions be made with the changed circumstance of the media release before his Honour Justice Elkaim and the order will remain either a proposed order or will be made a final order or the proposed order will be vacated.

HER HONOUR: Thank you. Mr Stellios, do you wish to say anything in reply?

MR STELLIOS: Your Honour, the only thing I will add is that the legal question of validity will remain the same. That the circumstances are fluid was always the case and so, your Honour, in my submission, I would say that it would be sufficient to remove the uncertainty before this Court to stand the proceeding down for seven days for us to bring the matter before the trial judge for reconsideration of the 68BA notice. If it goes in our favour then of course the constitutional issue disappears. If it does not, then the constitutional issue – the questions of validity before this Court remain the same.

HER HONOUR: Well, what I am going to do, Mr Stellios, is – I do not accept that to this point that if, for example, it did not go in your favour then as I have said, on my present reading of both your submissions and those of the Attorney‑General intervening, putting aside the interveners, they would require amendment on any view because they are predicated on a factual basis which no longer, as I understand it, pertains.

So it seems to me in the circumstances in order to get your house in order –and I agree – everyone seems to agree that you should go back before Justice Elkaim or back before the Supreme Court taking into account also the order made by the Chief Justice on 10 May listing these matters for trial in the four‑week period commencing on 31 August, which is a long way away, to make good and make certain what is the factual basis upon which the application is made. I am not yet clear that your client will not
have a jury trial. He may not. At the moment I do not understand that to be a position which is unlikely or not certain – at least not certain.

My present view is that the order should be revoked. That will mean that the listing will go but that does not mean that the application cannot be made for it to be – have that part of the cause removed again, if there is a cause to be removed.

MR STELLIOS: Your Honour, I do not think I can take it any further.

HER HONOUR: Thank you.

MR STELLIOS: Thank you, your Honour.

HER HONOUR: Thank you.

In the circumstances, which have been the subject of discussion between both the parties and also the Attorney‑General for the Australian Capital Territory intervening, it is appropriate in my view that the order made on 30 April 2020 should be revoked. As I have said, that will have the consequence that the listing dates of 30 June and 1 July will be vacated and will also relieve compliance with the other orders made in respect of interveners and the like. I wish to make clear that the revocation of that order and the release from those directions does not prevent, if it becomes necessary, the application to be made again for part of the cause to be removed or for there to be question about the validity of the legislation if and when the circumstances change and the case is in some order.

Thank you for your attendance. Adjourn the Court.

AT 9.50 AM THE MATTER WAS ADJOURNED