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  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 (FROM BRISBANE BY VIDEO LINK TO MELBOURNE):
Thank you both very much. I understand we also have the solicitors by audio link to two further locations, although not by video link. Before we commence, could I just say that I am very grateful to both of the counsel and the solicitors for working with the extraordinary IT staff of this Court to implement this electronic hearing, which I am told is now capable of accommodating of up to 10 remote locations. It is my hope that this hearing will prove to be a successful model for the next electronic hearing which will be a hearing of the Full Court scheduled in April. The Court is a vital public service and your assistance and co‑operation is essential to keeping this service available, particularly in cases of pressing importance.
While presumably the Court did not use Zoom this week, its system unsurprisingly suffered the usual teething problems:
BELL J: Thank you, Ms Shaw. Yes, Mr Nathan.
MR NATHAN: Sorry, your Honour, unfortunately it appears that our video link has dropped out. We can hear the Court ‑ ‑ ‑
BELL J: I see.
MR NATHAN: ‑ ‑ ‑ but unfortunately we cannot see any of the parties. We are attempting to try and resolve that from our end.
BELL J: In that case, Mr Nathan, the Court might take a short adjournment and when we are notified that the link from Darwin has been re‑established the Court will reconvene.
MR NATHAN: Yes, thank you, your Honour.
BELL J: The Court will now adjourn.
AT 10.52 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.08 AM:
BELL J: Mr Nathan, do I understand that you now have the link re‑established and you can see the Judges?
MR NATHAN: Yes, that is correct, your Honour. That is right.
BELL J: Mr Nathan, I am told that you had difficulty at times hearing me – can you now hear me?
MR NATHAN: Yes, your Honour.
BELL J: Yes, very well. Do go on, Mr Nathan.
We don’t know where the DPP’s counsel was exactly, but, even if he was in a private location, such as his Darwin offices, he was (like Cumberland’s counsel) still on ‘court premises’, defined to include ‘premises used to enable a person to appear before a court by means of facilities that enable audio and/or visual communications between persons at different places’. So, for three hours on Wednesday morning, possessing guns, taking snapshots and unreasonably barring members of the public from whichever buildings Bell, Gageler, Gordon, Shaw and Nathan were connecting from was a crime.
The immediate beneficiary of all of these technological machinations is Jesse Cumberland, a young cannabis dealer with no prior criminal history, who was due to be automatically released after two years in prison in mid-2019 just as the Northern Territory Court of Criminal Appeal doubled his sentence, automatically barring his parole until the end of 2022. The High Court granted him special leave in December, to argue that the appeals court acted slowly, harshly and unfairly, and the case was originally listed for a regular hearing this month, when COVID intervened. Cumberland nevertheless sought urgent orders allowing the appeal, with any hearing done ‘remotely or by way of writing.’ During the ensuing video connection, Cumberland raised a further COVID issue:
MS SHAW:… Your Honours, can I be permitted to raise one matter in relation to the current circumstances that would, if the Court was minded to, exercise a residual discretion for itself. This is a matter that is not in dispute and it relates to the impact of the COVID‑19 pandemic. Would the Court permit me to inform the Court as to what that impact has been – that impact report having been obtained from the general manager of the Correctional Precinct in Darwin?
BELL J: Mr Nathan, is there any objection to the Court ‑ ‑ ‑
MR NATHAN: Your Honour, with respect to my learned friend that material is not – it is fully accepted by the respondent – whilst material contained within it – in what was discussed is not in contest the issue unfortunately is that it is really only a very small snapshot of a far broader picture which this Court would need to really take into account in order to come to a decision as to how COVID‑19 might impact upon time spent in custody.
BELL J: Ms Shaw, it is probably not your strong point and in light of Mr Nathan’s attitude it seems to me it might be better to move on to the matters that are the subject of your outline.
Cumberland’s stronger point – that the DPP had already ‘accepted that the appellant has been denied procedural fairness by the Court of Criminal Appeal in the resentencing exercise‘ – yielded the 25-year-old’s summary release:
BELL J: Thank you, Ms Shaw. The Court will adjourn and reconvene at 1 o’clock in order to indicate the course that the Court proposes. Adjourn the Court until 1.00 pm.
AT 12.28 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 1.00 PM:
BELL J: The Court is unanimously of the view that the appeal is to be allowed. The orders of the Court are:
1. Appeal allowed.
2. The orders of the Court of Criminal Appeal of the Supreme Court of the Northern Territory made on 19 June 2019 are set aside and in lieu thereof it is ordered that the appeal to the Court of Criminal Appeal is dismissed.
The record doesn’t show how the three justices reached their unanimous view over lunch while in three different cities. Nor does it explain why only three justices heard this appeal, rather than the usual five or seven for appeals from Australian courts. Given Edelman J’s earlier claim that the High Court’s video connection ‘is now capable of accommodating of up to 10 remote locations’, the explanation for the latter does not appear to be the unusual circumstances the justices – and the rest of us – now find themselves in.
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