Yesterday’s new decision on civil procedure and insurers is not the only significant ruling of the High Court this week. Wednesday’s day-long hearing of a pre-trial application by accused promoter of foreign incursions, Hamdi Alqudsi, ended with the following statement by French CJ:
At least a majority of the Court is of the opinion that the following order should be made:
1. The question “Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant’s trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution”, should be answered “Yes”.
2. The motion is dismissed.
The reasons of the Court will be published at a later date.
The effect of these orders is that Alqudsi’s trial will be by a jury of his peers, rather than by judge alone as he preferred. The orders also strongly suggest a rejection by a majority of the High Court of an effort by Alqudsi, broadly supported by the Commonwealth and four states, to overturn or limit a thirty-year old 3-2 ruling by the High Court that effectively gave prosecutors, but not courts or defendants, the power to opt for a judge-alone trial of serious federal crimes.The Court’s majority holding in 1986’s Brown, although certainly a plausible reading of the bare text of s80 of the Constitution, is reviled by many as a perversion of one of the Constitution’s few apparent protections of human rights. However, we won’t know quite what the Court has said about s80 until the Court’s reasons emerge in next month or so.
Of more immediate interest is why the High Court opted to make its orders immediately at the end of the hearing, rather than its more common course of reserving its judgment and revealing its orders at the same time it publishes its reasons. One possibility is that the Court was keen to resolve an issue that otherwise might perhaps affect a fair number of federal trials. Indeed, the Court made similar same-day rulings in two earlier s80 cases in 2000 (where the Court again refused leave to reopen Brown) and in 2003 (involving procedures about reserve jurors). Another is that the Court was eager to prevent a further delay to Alqudsi’s pending trial. (Alqudsi’s trial was originally due to start last Monday and is apparently listed for a call-over next Wednesday; however that is subject to his application this morning for special leave to appeal the NSW Supreme Court’s dismissal of his other constitutional challenge, which French CJ refused to move directly to the High Court last July.) Most other instances of High Court orders published in advance of reasons involve refusals of pre-trial applications (e.g. here, here and here) or orders of new trials, acquittals or releases of detainees (e.g. here, here, here, here, here and here.)
The Court’s practice, while salutary in many ways, has some downsides. As Gageler J has argued, group decisions reached in advance of individual reasoned judgments are more likely to be wrong. In one instance where the Court allowed a convicted rapist’s appeal in advance of publishing written reasons, Heydon J later described the Court’s reasons as ‘one of the most criticised decisions of the High Court of all time’ (and, unfortunately, the defendant went on to rape again months after the High Court made its order.) In Alqudsi and nearly all of the cases referred to in this post, the order was supported by ‘at least a majority of this Court’ and some of the later reasons included stern dissents (e.g.by Kirby J, Callinan & Heydon JJ and Heydon J alone, here and here) by judges who seemingly lost the opportunity to convince their colleagues with their reasoned analyses. (On the fascinating question of whether a court can completely change its mind between making an order and publishing its reasons, see R v Allen  1 Qd R 526.) Finally, where, as in Alqudsi, the Court makes its orders immediately after the conclusion of an oral hearing, the practice gives the unfortunate impression that at least some of the oral arguments (for example, the Commonwealth Solicitor-General’s closing submissions in favour of judge-alone trials minutes before the Court ruled) were made to deaf ears.
The news today of Scalia J’s shock death in the United States points to a further danger of making orders ahead of reasons: the possibility that a judge who participated in the order is no longer on the bench when the reasons for judgments are produced. At best, this will mean that the order will lack that judge’s reasons. At worst, it might deprive the Court of the ‘at least a majority of judges’ referred to in the order. When Aickin J died in 1982, such orders were made in at least two of the matters where he had sat where reasons were not yet published. In one, the famous case of R v Perry, involving a woman charged with poisoning based on evidence of several acquaintances deaths or illness by apparent poisoning, the remaining four judges all agreed that some of the evidence against Perry was inadmissible, but were evenly split on the evidence of her brother’s death, leading Brennan J (who thought the evidence was admissible) to say “In the light of this division, it would not be right for the Crown on a retrial to press for the admission of the evidence “