BELL J: Perhaps, Ms Shaw, before you commence, may I indicate that if at any time either you or Mr Nathan have any difficulty in terms of hearing or seeing the Bench would you please indicate that at the first opportunity.

MS SHAW: I am grateful, your Honour, for that information.

According to the official transcript of proceedings, the High Court of Australia this week heard a criminal appeal ‘FROM CANBERRA BY VIDEO CONNECTION TO SYDNEY, MELBOURNE, ADELAIDE AND DARWIN’. That’s a contrast with its appeals this March, which the transcript described as ‘AT CANBERRA’ (and I can attest placed all seven justices and counsel in Courtroom No. 1.) The High Court has in the past heard chambers or special leave applications by video (e.g. ‘FROM CANBERRA BY VIDEO LINK TO ADELAIDE‘) – a link between two of the Court’s registries – but Cumberland v The Queen [2020] HCATrans 49 appears to go further in several ways. For starters, it’s an appeal (not a mere application), it’s a video ‘connection’ and, most dramatically, that connection is across three states and two territories. A later exchange reveals two still more startling things:

BELL J: Thank you, Mr Nathan. Anything in reply, Ms Shaw? Ms Shaw, can I interrupt you for a moment? We do not – or certainly in this Court I am not hearing any audio. I do not know whether Justices Gageler and Nettle can hear you, but I cannot.

GAGELER J: I cannot.

NETTLE J: I cannot.

MS SHAW: Can your Honours hear me now?

NETTLE J: Yes, thank you.

BELL J: Yes, thank you, Ms Shaw.

MS SHAW: Thank you. That was our fault at this end, your Honours. I apologise.

BELL J: Not at all.

The first part of this excerpt suggests that the three justices were not only not in the same room as Cumberland’s counsel, but themselves in three different cities for the hearing. And the second part hints that Marie Shaw is not in a courtroom at all. Alas, the transcript doesn’t reveal who is where during this historic event in the national court.

Justice Edelman foreshadowed these events in a chambers matter in late March Continue reading →