When a client asks me, 'What are our chances?', I sometimes reply, even if we have a good case, with words to the following effect,
'When High Court judges, the most learned lawyers in the land, disagree, who am I to say? Legal proceedings can be unpredictable.' I might tell such client this parable.
There was a certain man who was caught sending poison pen letters; not that many, and not very often. But he felt, deeply, that he simply had no choice; he was fighting oppression; it was like God acting through him. Admittedly, some of what he wrote was pretty off.
He is eventually charged, locked up for a bit, and finally appears before a Magistrate facing full-time gaol. His lawyer describes him as a proud man, says he cried like a baby in gaol. Who wouldn't find such an experience emotionally disturbing? Anyway, he was persuaded to plead guilty and sentenced to probation and 300 hours community service and banned from using the Australian Postal Service.
For most of us that would be the end of it, but this convicted felon didn't feel right about the plea. He knew he wasn't guilty. He didn't feel remorse. It wasn't Justice. He hadn't had his day in court. Then someone had a smart idea; a constitutional argument.
Back in court a few months later, this time the District Court, his lawyers file a Notice of Motion to have the indictment quashed, arguing that the section of the Commonwealth Criminal Code under which it had been brought is invalid, infringing the implied freedom of political communication.
Implied freedoms are those made up by judges in the High Court. They imply them from what's already there, in the Law. They're found in the judgments rather than the Constitution Act.
When the profession heard, excitement grew. As did hope in the defendant's heart. Does the section fit with what judges have decided in the past? This is the question on which our hero's future now depends. A fine balance; how offensive can political free speech be?
In the District Court, however, the judge decides the section is valid. Our letter-writer is guilty as charged. But the District Court is low in the hierarchy of courts and on a point of law you can seek leave to appeal.
Ten months later the Court of Criminal Appeal took over. Two Chief Justices and the President, ably assisted by 8 barristers and 4 solicitors, threw it out again. An expensive operation, but the question was clearly significant to the nation.
So, a bit over 3 years since it all began, our friend reaches the High Court, that from which there is no appeal, where the final determination is genuinely final. Here, after much argument, the Chief Justice, assisted by 16 barristers and 9 solicitors, flowers of their profession, decides that the section is invalid. Justices Hayne and Heydon, agree with His Honour's reasoning, and declare that the convictions should be quashed! Our writer of offensive letters begins to breathe a deep sigh of relief.
But then…. Justices Crennan, Kiefel and Bell together say, 'The appeals should be dismissed.'
The other Justice is due to retire and isn't sitting. There's supposed to be 7 so this doesn't happen.
So, what do the lawyers come up with now? It takes them a couple of years more but eventually, back they go to the High Court to argue the unfairness of it all, seeking leave to file a fresh constitutional challenge. Two judges, the Chief Justice and the new one, Justice Gageler, hear submissions and refuse the application. And that really is the end of it. For the courts.
Who am I then, to tell you what the law is?
The end of it for our hero is yet to come. Giving up on the search for Truth and Justice through his pen and the Law, three days after the High Court doors slam shut, having chosen a different, though more dramatic weapon, he goes for coffee at the Lindt Cafe.