HT v The Queen [2019] HCA 40

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ

HT APPELLANT

AND

THE QUEEN & ANOR RESPONDENTS

HT v The Queen [2019] HCA 40 Date of Hearing: 10 September 2019 Date of Judgment: 13 November 2019 S123/2019

ORDER

1. Appeal allowed.

2. Set aside the two sets of orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales, when reserving its judgment and when disposing of the appeal, and in lieu thereof order that the Crown appeal be dismissed.

3. The contents of Exhibit C be suppressed until further order of this Court pursuant to section 77RE of the Judiciary Act 1903 (Cth) on the grounds set out in section 77RF(1)(a), being that the order is necessary to prevent prejudice to the proper administration of justice, and section 77RF(1)(c), being that the order is necessary to protect the safety of any person.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with G E L Huxley for the appellant (instructed by Maria Walz Legal)

D T Kell SC with E S Jones for the first respondent (instructed by Solicitor for Public Prosecutions (NSW))

N L Sharp SC with T M Glover for the second respondent (instructed by Crown Solicitor's Office (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

HT v The Queen

Criminal practice – Appeal – Crown appeal against sentence – Procedural fairness – Where appellant provided assistance to law enforcement authorities – Where court required by statute to take assistance into account in sentencing – Where evidence of assistance kept confidential from appellant and appellant's legal representatives in sentencing proceedings – Where evidence contained highly sensitive criminal intelligence – Where appellant sought access to confidential evidence on appeal – Where Court of Criminal Appeal denied appellant access to confidential evidence on basis of public interest immunity – Where Court of Criminal Appeal exercised discretion under s 5D(1) of Criminal Appeal Act 1912 (NSW) to re-sentence – Whether appellant denied procedural fairness – Whether Court of Criminal Appeal had power to deny appellant access to the confidential evidence – Whether Court of Criminal Appeal should have declined to exercise discretion to re‑sentence.