Chief Commissioner of Police, Applications by

[2004] HCATrans 127

[2004] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  Nos M34, M35, M49 and M50 of 2004

In the matter of –

Applications by the CHIEF COMMISSIONER OF POLICE (VICTORIA)

GLEESON CJ
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 30 APRIL 2004, AT 9.31 AM

Copyright in the High Court of Australia

MR F.X. COSTIGAN, QC:   If the Court pleases, I appear with my learned friend, MR G.J.C. SILBERT, for the Chief Commissioner.  (instructed by Victorian Government Solicitor)

MR D.F.R. BEACH, SC:   If the Court pleases, I appear with my learned friend, MR A.T. STRAHAN, for The Age Company Limited.  (instructed by Minter Ellison)

GLEESON CJ:   Yes, Mr Costigan.

MR COSTIGAN:   If the Court pleases, we are intrigued, in a sense, by the kind of application this is because we say that the matter we fully argued before the Court of Appeal was a matter upon which the court chose not to give judgment and the matter which we were not able to argue was the matter on which the court did give judgment.

GLEESON CJ:   There is not a transcript of the proceedings before the Court of Appeal.

MR COSTIGAN:   No, there was not a transcript.

GLEESON CJ:   If you were to get leave to appeal and we were then to deal with your argument about procedural fairness, what would be the factual basis as to what went on before the Court of Appeal on which we would deal with that argument?

MR COSTIGAN:   At the moment the only strict evidence before this Court is the affidavit of my instructing solicitor, Jenny Pavlou, sworn in respect of the application for a stay before his Honour Justice Hayne.

GLEESON CJ:   Is that in dispute?

MR COSTIGAN:   When one looks at the statement of additional facts, which we put in our joint application book, and we look at the additional facts that The Age newspaper put in, there does not seem to be a dispute with the matters that we put.  I dare say they must speak for themselves about that.  I am not able to identify a dispute, but the picture as presented by Ms Pavlou – and if the Court gave us leave to appeal, of course, we would have to consider the way in which we put the evidence before the Court on the final appeal and that may involve a fuller affidavit enclosing notes of a fuller kind of what happened before the Court of Appeal, but there is no transcript.

We have set out in our summary of argument what we say are the three significant issues and we rely on that, of course, if the Court pleases. They are different issues. The one which deals with whether or not we had a right of appeal as opposed to leave to appeal is based on the interpretation of section 10 Supreme Court Act (Vic). To that extent it is limited to the State of Victoria, but, nonetheless, it is a matter that is of interest to this Court because, if it is finally held that there is no right of appeal, one is then faced with the possibility that future attempts to appeal from single judges will come straight to this Court by way of an application. So in that sense it is of interest beyond the Victorian situation.

GLEESON CJ:   I suppose that if you obtained leave to appeal in relation to the two matters that were before the Court of Appeal, a course we could take in relation to the other two matters is just to refer into a Full Court those applications for leave to appeal.

MR COSTIGAN:   That is so, your Honour.  I mentioned that matter first because it is in a slightly less general context than the other two matters, but it is of great importance so far as Victoria is concerned because, if we are not given leave to appeal, then the judgment of the Court of Appeal on the substantive matter will, I think, be regarded as bible by puisne judges in Victoria, so there will be a result that, on the question of open justice, what the Court of Appeal has said in this case will be regarded as the law and cannot be changed unless this Court ‑ ‑ ‑

GUMMOW J:   Now, if you were correct that you did have an appeal as of right, and we agreed with you, what would be the consequence in this litigation?  What would we do then?

MR COSTIGAN:   You would properly send it back to the Court of Appeal to be dealt with according to law, perhaps with guidance from this Court as to the principles of law that should be applied.

GUMMOW J:   But the question of what was said or not said in the Court of Appeal and what the record was would be beside the point, would it not?  It would just be a knockout point.

MR COSTIGAN:   Yes, if it went back to the Court of Appeal, we would probably avoid those difficulties.

GUMMOW J:   Yes.

MR COSTIGAN:   I do not want to say any more about the Supreme Court right of appeal questions.  The other two matters, we say, are clearly matters of importance.  The question of procedural fairness we have set out in our submissions and we do not resile from that.  The question of open justice is – we would say the Court of Appeal was disadvantaged by not having the benefit of submissions from us and there are flaws, we would say, because

of that in the way in which they have dealt with the question and there has been too much concentration on the necessity to provide a fair trial to an accused rather than taking into account other matters of public policy.  The court was not given the benefit of an analysis of the Canadian and American authorities on this question, nor the benefit of general submissions from the Chief Commissioner as to the way in which a failure to give a stay would impact on the administration of justice.

HAYNE J:   Has it always been treated in the courts below as all or nothing, that is, an order for suppression unlimited in time, or an order for suppression limited to the duration of the trial?

MR COSTIGAN:   I think it has, your Honour, although we would not want to make it as stark as that.

HAYNE J:   I understand that.

MR COSTIGAN:   But certainly our application to the Court of Appeal and to the trial judges was on the basis that there be no limitation on the time of the order, but subject to further order, so there was that qualification.

HAYNE J:   Well, once there is that qualification, it seems to me that there may – there may not – be some question about whether the order should be for a defined time, subject to further order.

MR COSTIGAN:   Yes.

HAYNE J:   But that is, perhaps, by the by at the moment.

MR COSTIGAN:   Yes, it is, and it may be that we could live with an order, consistent with our submissions, of an extended time subject to further order because facts change and information changes and techniques change.  Quite simply, our submission is that the matters we have raised are matters of high importance.  They are serious matters.  The Court of Appeal has it wrong, or at least has left open the serious matters, and, in respect of the procedural fairness, has not given us the opportunity which we were entitled to.  Subject to anything the Court wants to put to me, they are our submissions.

GLEESON CJ:   Thank you, Mr Costigan.  Yes, Mr Beach.

MR BEACH:   Your Honours, our learned friends identify three special leave questions across the four applications they make.  If I could deal with the first one, being the right to appeal to the Court of Appeal, or the section 17(2) point, as I think it has been called.  Firstly, it does not arise in proceedings M49 and M50 which are, of course, the special leave applications from the trial judges.  Secondly, we say it does not arise in the context of M34 and M35 because the parties were in agreement before the Court of Appeal that our learned friend’s clients had a right of appeal.  It was never contested by us, and the court assumed it in our learned friend’s favour.  So there is nothing, we would say, with respect, to appeal from in relation to that first point.

HAYNE J:   Where do you say the Court of Appeal assumed it?  Where do I find that?

MR BEACH:   Your Honour finds that in the judgment shortly before they commenced to deal with whether a suppression order should be made in paragraph 22 at line 25 on page 208 of the confidential book:

Although, in the light of the authorities to which we have referred, it seems to us to be doubtful that we can now conclude that s.17A(3) is not, within the meaning of s.17(2) of the Act, an “express” enactment otherwise, we are prepared to assume (without deciding) that Mr Costigan is correct in his submissions for the purpose of enabling us to determine the substantive issue debated before us – namely whether the trial judges were in error in making the limited suppression orders which they did.  We are prepared to do this because we have reached a firm and united view upon that issue.

HAYNE J:   Well, that tips you over into this procedural fairness question, does it not?

MR BEACH:   It does, your Honour.

HAYNE J:   What do you say about the factual substratum of that contention, that there was no adequate opportunity given to the parties to make submissions about the merits as distinct from the procedural question?

GUMMOW J:   Just before you come to that, what about page 224?  The order they made was to dismiss the applications.

MR BEACH:   Yes, it is to dismiss the application for leave and we would say, consistent with what the court was there doing, was looking at whether or not the orders below were attended with sufficient doubt or whether they were plainly right.  What the Court of Appeal have said is, “That was an issue for us to determine in the course of the application for leave.  You haven’t persuaded us that they were attended with sufficient doubt.  Indeed, they are plainly right and, therefore, we dismiss the applications for leave”, which was all that was before the court, of course, on 9 October.

But for the reasons already given, that disposes of the first so‑called special leave question, the right to appeal to the court and, as your Honour Justice Hayne then directs me to, the next point is obviously the denial of natural justice point.  We would say that there was no denial of natural justice in this case because our learned friends put before the court five affidavits, which are in the confidential book.  They are, respectively, affidavits of Ms Pavlou commencing at confidential book 1, 93 and 111; affidavits of the witness commencing at confidential book 4; and an affidavit of the witness at confidential book 114.  Then the court heard the Chief Commissioner of Police’s argument on the leave application and sets out ‑ ‑ ‑

GUMMOW J:   Well, the application is at 197.  I am going to be stubborn about this.  It all seems very confusing.  At the top of 197 what was sought was “leave to appeal, if leave be necessary”.

MR BEACH:   Yes.

GUMMOW J:   That question had to be decided, otherwise the putting of what has been done and making the orders is not settled.

MR BEACH:   No.  With respect, what has been done is the court has said there is a right – there is jurisdiction in the Court of Appeal to hear an appeal if you can obtain leave.  You were not a party to the criminal proceedings and perhaps it could also be said that the orders that were made were interlocutory.  They did not finally determine anyone’s rights.  You come along and you say yourselves you need leave.  You apply for leave.  One of the things the Court of Appeal has to look at is whether or not, amongst others, the orders below are attended with sufficient doubt to justify the granting of leave, assuming that the person is a person aggrieved and the court otherwise has jurisdiction.  The court rules in our learned friend’s favour that he is a person aggrieved.  The court would have jurisdiction to entertain the appeal, subject to satisfying the leave requirement.  You have not satisfied us that it is attended with sufficient doubt.  In fact, it is plainly correct.  Therefore, we dismiss the application for leave to appeal. 

That then brings me to the natural justice point, and we say there was no denial of natural justice.  Our learned friend put all of the affidavit material that could possibly be put before the Court of Appeal, namely, the material that had been put before the trial division, the five affidavits that I have referred to a moment ago.  Those affidavits disclosed what the scenarios were, what the technique was, the fact of the use of the methodology outside Victoria; the fact that publication of the technique would adversely affect the safety and security of undercover officers, or may, in current and future operations; the fact that the reporting of the technique in the wider community would render the technique ineffective; the fact that if publicity occurred a likely outcome would be the termination of the technique.  All of these matters were put.  The termination of the use of the technique would seriously negatively impact upon the police ability to investigate the crime of murder, both in Victoria and outside Victoria. 

They then heard our learned friend’s argument and they reserved.  They received the further material, the further affidavits of the witness and Ms Pavlou sworn in December, which are not in the confidential book, but they are in the application book itself at pages 8 and 25.  They received the supplementary submissions filed on behalf of the Chief Commissioner, which were directed to the leave question and were coupled with them those two affidavits that were sworn in December.

Our learned friend, all he wished to say in those further submissions was directed at the leave application, again the issue being whether the decisions below were attended with such doubt or plainly correct or not and we would say all of that has been heard and considered by the Court of Appeal and there is nothing more that they could have done on the application for leave.  The application for leave was dismissed, we would say, on the perfectly proper, with respect, ground that the trial judges were plainly right.

Even if we are wrong about all of that, assume that there was some denial of procedural fairness.  Our learned friends have identified nothing in the way of evidence, argument or authorities, either to this Court or, indeed, in the stay application which would suggest that the Court of Appeal could possibly have come to any different conclusion.  The Court of Appeal, unanimously, came to the same conclusion the two trial judges came to, came to the same conclusion that 10 Canadian judges have already come to – 15 judges have looked at this point and all come to the one conclusion. 

There is not authority.  There just is not any authority which would lead one to the conclusion that had they been given a further hearing before the Court of Appeal, they could have advanced some additional argument, or put some additional evidence.  The question must be put, just in relation to the question of additional evidence, on what basis could they have possibly put additional evidence to the Court of Appeal?  What is this evidence?  Why was it not available to the trial judges?  What attempts were made to put it before the trial judges?  We say, with respect, there is absolutely nothing in the second special leave question. 

That brings us to the third special leave question, the so‑called open justice point.  The open justice point, of course, does not arise in proceedings M34 and M35 because there is no ground of appeal that relates to it.  What is sought in M34 and M35 is to say there was a denial of natural justice and, therefore, the proceedings should be remitted to the Court of Appeal.  There is no issue to come before this Court about the issue of the so‑called open justice point.

The open justice point only possibly arises in proceedings M49 and M50.  To get to those proceedings Mr Costigan has to take the schizophrenic approach of saying that all his arguments about the right to appeal to the Court of Appeal are wrong and that this Court should entertain the special leave applications direct from the trial judge because, contrary to every argument that he has so carefully put together about the right of appeal, he is wrong about that and he wishes to recant from it and go back and invite this Court to reconsider the trial judges.  But we would say, with respect, in any event, that the open justice point has no merit for a number of ‑ ‑ ‑

GLEESON CJ:   May I ask you this question, Mr Beach, in terms of the procedure that was followed by your opponent?  In cases where there is a question about the necessity for leave to appeal, a procedure that is commonly followed is to file a notice of appeal and also an application for leave to appeal, if leave be necessary.  Was it only the second step that was taken here, or was a notice of appeal filed?

MR BEACH:   The judgment describes – and we were not privy to any of the documents before the Court of Appeal because they were all regarded as confidential and we should not be allowed to see any of them, but the judgment describes it as an application for leave to appeal by summons with a notice of appeal attached to it which notes ‑ ‑ ‑

GLEESON CJ:   What has been the disposition in respect of the appeal?

MR BEACH:   No appeal has been commenced, because no notice of appeal has been served on anybody as the judgment recites, and I say that ‑ ‑ ‑

GLEESON CJ:   Upon whom would it be served?

MR BEACH:   Well, presumably the parties in the original proceeding would be a good start, and now that we have been made an intervener, we would say us, but at the moment nothing has been done and, as I understand it, there is no current proceeding on foot before the Court of Appeal.

GLEESON CJ:   So no notice of appeal was ever filed in the Court of Appeal?

MR BEACH:   It was attached, as we understand the – my learned friend, Mr Costigan, says it is filed.  I know nothing about that.  All I know is ‑ ‑ ‑

GLEESON CJ:   Well, if it is filed – let us just assume for the moment it was filed, what has happened to it?  What is the disposition of the appeal commenced by that notice?

MR BEACH:   Consistent with what I have already said to your Honour, I cannot tell you.  It has not been served on us.  All we know is from the judgment it has not been served on anyone and we have not heard anything from our learned friend as to attempts to progress it.  Indeed, on my feet it now occurs to me, it must be now deemed to have been abandoned because, if he has done nothing else other than file it, the Rules of the Supreme Court will have deemed it abandoned for not preparing appeal books and notes of contents of appeal books, the time limits of which are relatively brief.

HAYNE J:   I rather think you ought to know something about it.  What about page 40 of the joint application book?

MR BEACH:   Well, your Honour, we took that to be no more than the notice that is described in the judgment as being attached to the summons seeking leave.

GUMMOW J:   There is another one at page 5.

MR BEACH:   Yes, in each proceeding.  That is the course they have adopted.

GLEESON CJ:   Well, the one at page 40 does not have a number on it.  I do not know what the procedure is in the Court of Appeal in Victoria, but the procedure in this Court is that when you file an application for special leave to appeal you have to file with it a draft notice of appeal setting out the grounds of it so that the Court can see the grounds of appeal that you will want to argue if you get special leave.

MR BEACH:   The procedure in the Court of Appeal, your Honours, is that if you wish to apply for leave it must be supported by an affidavit and the affidavit must exhibit to it a number of documents, one of which is a draft notice of appeal.

GLEESON CJ:   That document on page 40, I presumed myself was a draft notice of appeal because it has no number.

MR BEACH:   And I would not seek to cavil with your Honour other than to say, equally, from the face of the judgment – and maybe we are in heated agreement about this – it is no more than a document that was somehow stapled to the summons in each application.

GLEESON CJ:   The Court of Appeal certainly seems to have assumed that there was no extant appeal and that all it was dealing with was an application for leave to appeal.

MR BEACH:   Indeed, that is so, your Honour.

GLEESON CJ:   If it is right that Mr Costigan had a right to appeal and if it is also right that no appeal was ever commenced by Mr Costigan’s client, then presumably she still has a right to appeal provided she can get an extension of time.

MR BEACH:   Yes, your Honour.

GLEESON CJ:   What would stand in the way of her getting an extension of time would be the decision on the merits of the Court of Appeal on the application for leave to appeal.

MR BEACH:   Yes, your Honour, that would stand in her way.  Can I come now to the open justice point.  We say the point is without merit for a number of reasons.  The substance of our learned friend’s application seems to be that knowledge of the investigative technique that is being used will make it harder to investigate and/or prosecute other criminals and we would say that is not a basis for suppressing indefinitely the knowledge of this technique, otherwise, prima facie, all investigative techniques would be suppressed, all police techniques where criminals could, by dint of knowing of the technique, behave in a different way or manipulate matters so as to render them less effective.

So far as the evidence was concerned as to the danger to undercover operatives in relation to publication of the technique, we would say the evidence is far from compelling.  If one goes to confidential book 96, an effort was made to elicit this evidence from the witness, I think, at line 27. 

I will not read to your Honours the three pages that follow, but your Honours will see from the answer given by the witness that he is really unable to say anything about the concerns for the safety.  He is more concerned about the efficacy of the technique if it becomes known, talking about one of his targets being someone who is very intelligent and appears to have specialist qualifications of some sort, if one looks at lines 12 and 13 on page 97, and talks about the matrimonial status of that person, but otherwise one can scour the transcript for the next few pages and not find anything which suggests that there is any substance to the allegation that there is a danger.

We would say the second reason why this evidence is not compelling is, of course, for the reasons set out by the Court of Appeal in paragraph 42 of their judgment, that is, we are all well aware of many, many different kinds of undercover “sting” operations.  There is publicity about those and that has never been seen to be a reason – the fact that those operatives might be placed in hazardous positions as a result of that being known in the wider community has never been a reason to suppress the material.

Finally, the scenarios themselves are ones where, if one looks at them, they are all involved in one target being placed in the company of many police.  This was a point that appealed to the Supreme Court of Canada.  It is difficult to believe that one target in the company of many police would do anything silly that might threaten the safety of one of the police.  The other points we make in our outline:

The manner in which that evidence comes into existence and the procedures followed by investigative agencies are themselves matters of considerable public importance.

That is dealt with in paragraph 28 of the Court of Appeal’s judgment and thus we would say cannot be suppressed indefinitely.  It is important that there be full disclosure of the circumstances under which confessional evidence comes into existence in the event of an acquittal.  Again, this was a point made in Mentuck and again made by the Court of Appeal at paragraph 37 about how:

An acquittal can be difficult to live with when the public believes that it was gained only on a ‘technicality’ –

The “factual and legal foundations underlying” convictions and decisions to set aside, or not set aside, murder convictions should not be concealed – paragraph 40 of the Court of Appeal’s judgment.  Suppression of the knowledge, in any event, is not feasible, having regard to the existence of overseas publication that it is obvious, having regard to the decision in Canada.

This then leads me to the suppression orders themselves.  Our learned friends in their submissions say, “We only want to stop the mass media”, however one might define the mass media, but that is not the orders they have.  In Victoria it is prohibited to publish, either in print or electronically, the matters that are – so this has, of course, the capacity to impinge upon the ability of judgments to be delivered in the various areas.  Indeed, some judgments dealing with this issue have already been pulled off the Net.  They were on They were on LexisNexis.  They have been removed.  The Court of Appeal’s judgment cannot be found electronically, in Victoria, at least.  It cannot even be found in the Supreme Court library, no doubt because someone has taken a proper approach to the notion of publishing by print.

We would say that the Court of Appeal’s decision and the Supreme Court of Canada are plainly correct.  Fifteen judges have come to the one view.  There is no authority to the contrary.  Unless there are any further matters that I can assist the Court with, those are the submissions for the intervener.

GLEESON CJ:   Thank you.  Mr Costigan, is there a filing fee payable on an application for leave to appeal in Victoria?

MR COSTIGAN:   Can I ask my instructing solicitor the ‑ ‑ ‑

GLEESON CJ:   At the same time as you ask her, ask her whether there is a filing fee payable on filing an appeal and ask her how many filing fees she has paid.

MR COSTIGAN:   No, there is no filing fee.

GLEESON CJ:   For either?

MR COSTIGAN:   I think the fee – I am now speaking from my own experience – the fee is for the lodging of the appeal.

GLEESON CJ:   Right.  Has your client paid a fee?  It seems to me a fairly practical test about whether there is an appeal on foot.

MR COSTIGAN:   I am now about to give evidence from the Bar table, your Honour.

GLEESON CJ:   Well, we will probably accept it, depending on your demeanour.

MR COSTIGAN:   I am not quite sure how to compose myself, your Honour.  I am instructed that my instructor attended at the registry of the Court of Appeal and was told that there was a fee to be paid, but she would not be required to pay it.  The mystery behind that I do not quite understand.

GLEESON CJ:   That may be a matter that might need to be cleared up.

MR COSTIGAN:   Yes.

GLEESON CJ:   Because, as I mentioned to Mr Beach, the disposition of the Court of Appeal was evidently on the basis that there was no appeal on foot.

MR COSTIGAN:   Yes.  It would be our submission – according to the Rules of the Supreme Court, a draft notice of appeal has to be filed within 14 days of the application for leave to appeal and what happened in this case, we had a stay until the Friday and somehow or other we had to have a forum in which we could apply for an extension of that stay.  So we had issued a notice of appeal on the basis that we had a right to appeal and then a second application for leave to appeal in the event that we were wrong about our right to appeal.  We appeared before the Court of Appeal on the Thursday on the basis that one way or another we would then be able to go back to the trial judges and ask them for an extension, pending the determination by the Court of Appeal.

GLEESON CJ:   In relation to the question of evidence as to what occurred in the Victorian Court of Appeal, you might want to look at what Justice Gummow said in Eastman v The Queen 203 CLR 1 at 59. Yes, thank you, Mr Costigan.

MR COSTIGAN:   Thank you, your Honour.

GLEESON CJ:   Well, Mr Costigan and Mr Beach, if we were to grant leave to appeal, there may be a possibility of listing the matter for hearing in Adelaide in August.  Would that present the parties with any difficulties?

MR COSTIGAN:   We could meet those timetables.

GLEESON CJ:   It is a matter we would have to look at in the light of what happens during the rest of today when we are dealing with applications for special leave to appeal from Adelaide, but I just mention that as a possibility that you might need to keep in mind.

MR BEACH:   Could I ask when in August?

GLEESON CJ:   I think we are going the second week in August.  Yes, the second week of August.

MR BEACH:   Obviously, if your Honours were minded to grant special leave, my client’s position would be the sooner the appeal was heard the better.

GLEESON CJ:   Yes.  That would be consistent with that, would it not?

MR BEACH:   Yes, it would, your Honour.

GLEESON CJ:   All right, thank you.

In each of matters M34 and M35 of 2003, special leave to appeal is granted.  In each of matters M49 and M50 of 2003, the application for special leave to appeal is referred to a Full Court.  All four matters will be listed for hearing together.

We will adjourn for a short time to reconstitute.

AT 10.06 AM THE MATTERS WERE CONCLUDED