Aboud v Attorney-General for New South Wales

[1988] HCATrans 28

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl08 of 1987

Bet w-e en -

IAN SAfIUEL ABOUD

Applicant

and

ATTORNEY-GENERAL IN AND FOR TEE

STATE OF NEW SOUTH WALES

First Respondent

and

DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

and

DISTRICT COURT OF ~EW SOUTH WALES

Third Respondent

Aboud

Application for special leave to

appeal

:tv'iASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 FEBRUARY 1988, AT 12.26 PM

Copyright in the High Court of Australia

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MR F.J. GORMLY, QC: If the Court pleases, I appear with my

learned friend, MR D. CUTLER, for the applicant.

(instructed by Watts & McKinnon.

MR K. MASON, QC, Solicitor-General for New South Wales: If the

Court pleases, I appear with my learned friend,

MISS R. DONNELLY, for the first and third respondents.

The second, I am sure, is a submitting respondent.

(instructed by the Crown Solicitor for New South Wales)

MASON CJ: Yes. I do not think we have a notice of that fact

but I am sure that can be taken for granted. Yes,

Mr Gormly?

MR GORMLY: If Your Honours please. This case raises some

important fundamental questions involving the
administration of the criminal law, in particular,
criminal procedure which are applicable not only to

New South Wales but to the country generally.

Firstly, in New South Wales, these kind of

applications, which are known locally as O'CONNELL

applications, are becoming increasingly important and

increasingly frequent.

MASON CJ: Yes. Perhaps we can take it that there are

important questions lurking around in the case but the

real difficulty for you is to establish that you have

prospects of success in an appeal, is it not?

MR GORMLY:  Yes. Your Honour, the core question is,"Is there

a right to a speedy trial?" The answer to that we say

is, "There is not." Now, what has happened is this,

Your Honours, we say: that the courts, following the

concept of the speedy trial which they have imported

into the law of New South Wales from overseas'

jurisdiction where there are bills of rights of various

kinds and charters which establish this right, have gone

astray in examining the precise situation that exists

in New South Wales under our jurisprudence.

Now, it is not proper, we say, to argue that the

Magna Carta, which seems to be the well-spring

of this concept in the particular words in Chapter XXIX

gave a right to a speedy trial. What those words did
was to impose upon the King or the executive or the

government, a duty and that was not a duty to bring

people to speedy trial but a duty, first, to ensure

that people were brought to trial - "we shall not deny

justice" - and at the same time, implicit in that, was

to set up a system of justice whereby persons could be

brought to trial. So what Magna Carta did was impose

a constitutional duty upon the executive. That

constitutional duty probably had as a correlative right

not a right in the individual citizen but a right in the

community to ensure that an appropriate system of justice

was set up to ensure that people were brought to trial.

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That being a constitutional duty, the performance of

that duty cannot be waived by the individual. It can

be waived only by Parliament. That brings us directly to the point of to whether an accused person can waive

his right to the so-called right of a speedy trial.

He cannot Because he cannot waive his right, he has

no right to waive. It is a constitutional duty that

the Attorney-General or whoever is charged with these

matters has to perform and that constitutional duty

cannot be released or waived by a citizen. Therefore,

it follows from that - and this is our basic argument -

there being no such righ4 what happens is that the

accused person still has certain rights, and they are

fundamental, and they are three - two-and-a-half, in a

sense. The first is a right to remain silent once

charged and remain silent throughout. That is his first

right. His second right is a right to a fair trial.

That is well fixed.	He can waive either of those
rights.	He can waive the first right by making a statement;

he can waive the second right, the right to a fair trial

by pleading guilty. The correlative half-right that

is still in the accused is at that fair trial he must

be proved guilty beyond reasonable doubt. That is a

right in him. He can waive that right by pleading guilty.

But what is involved in the whole approach here

is not a question of those rights at all but, on this

approach, which we submit is a correct analysis of the

situation as exists here, is a duty situation which

the accused person must submit to and which the community

at large is entitled to have carried out. If the

community at large does not have that duty carried out

then, as Mr Justice McHugh said in part of his judgment,

you either do not charge people or the system of

administration breaks down. It is a question of executive

priorities, I suppose, ultimately, as to whether the

executive is going to perform that duty. But if it does

not perform the duty then what is prejudiced in the

accused is not his right to a speedy trial but his

right to a fair trial. And that is a different

approach altogether to the one the Court of Appeal

adopted.

We say the approach of the Court of Appeal

attracted, as it seems on the surface, relying on
overseas approaches, can lead to a gross distortion

of the real rights of the accused. It is all very well

to waive a constitutional right granted by the American

Constitution or the Constitution of the Republic of

Germany or the Canadian Constitution. That is a totally

different question to the situation which arises here.

There is no less justice that arises in the situation

that we pose. The accused person still must be brought

to a fair trial as, indeed, he always should have been

brought to a fair trial. Therefore, we say, that what

is involved here are some very fundamental questions

involved in the whole administration of criminal law.

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And for that reason special leave should be granted to allow this Court to consider the matter because, as I

earlier said, these applications are becoming increasingly

common. I do not know whether they are being made in

other States; they are certainly being made in great

numbers in New South Wales, and in due course, no

doubt, similar applications will be made in other

States.

Therefore, it is important that the principles

underlying these applications and underlying the

relief that should be given in response to the

applications be based upon proper principle and proper

thinking, and at this stage we say, with respect to the

Court of Appeal, despite a valiant effort to introduce

into our law principles that come from other systems of

law, their approach is an unjustified one and not in

accord with principle. And so, this case, usefully

throws up the point which should be considered by

this Court in the interests of the criminal system as

a whole.

MASON CJ:  Mr Gormly, could you refresh my recollection about

WATSON? We had a number of cases that came to the

Court on special leave to appeal and my mind is not

very clear as to which of them WATSON was.

MR GORMLY:  WATSON, Your Honour, was mainly concerned with

jurisdiction. This Court refused leave to appeal

and the question in WATSON was precisely what was the

power of the Court should the Court intervene - what

was the correct procedure and what were the ideas - - -

MASON CJ: Is this the one in which we said, in refusing

special leave to appeal, that we were satisfied

that the Court had a power to impose an unconditional

stay?

MR GORMLY: Yes, Your Honour, as I understand it, yes.

That raises, incidentally, a subsidiary question as

to whether, in the kind of situation that arises here,

if our analysis is accepted, the order of the Court

should be a conditional stay or whether the charge

should not be dismissed as was done in the English case

which is referred to in the judgment in the 1840s and

I think it is referred to in the judgment of

Mr Justice McHugh and in the judgment of Mr Justice Kirby

as well. There, where there was a delay of 22 months

in bringing a man to trial on a charge of bestiality,

the trial judge in England dismissed the matter. It

could be said that he dismissed it, I suppose, if you

approach it from the wrong point of view, because

there was a delay, it was not a speedy trial that he

was being subjected to. The real principle, we say,

that underlies that case was that the trial judge

recognized that the executive had not carried out its

duty to bring people to trial in accordance with properly

set up procedures and dismissed the application. and

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that might be a subsidiary question which would engage
the attention of this Court upon the hearing of this

application.

TOOHEY J:  Mr Gormly, I am not entirely clear as to the way

in which you are putting the case. You appear to be

saying that there is a constitutional duty imposed on

the executive to bring a person charged with an offence

to trial.

MR GORMLY:  Yes, Your Honour.

TOOHEY J: Assuming that to be so, do you then go on to say

that it does not really matter what the person charged

does by way of acquiescing in remands or mentions or

the like if you can demonstrate a failure to perform

that duty, then some consequences must follow automatically?

MR GORMLY:  I do, Your Honour, yes. I must go that far, yes.

Now, that seems a stumbling block. What it all boils

down to ultimately is whether, in all the circumstances,

the accused is being given a fair trial. It may then

be perhaps taken into account, in deciding that,whether

the accused himself has demonstrated that he is

assenting to a situation which will not be prejudicial,

in his view, to his fair trial - not really part of the

evidentiary situation which would come up ultimately

on consideration of whether the accused had a fair

trial or not.

TOOHEY J:	If the delay is brought about by actions of the person charged in seeking adjournments and the like, how do you
fit that within your notion of a constitutional duty?

MR GORMLY: There are two ways of looking at that. The first

would be to say that the Crown should not assent to such
adjournments but should press on. The second way then

is, having considered whether the Crown has pressed on

in the face of the opposition of the accused, whether

there has been ultimately the prospects of a fair trial

or not and, ultimately, that becomes, I suppose, in each

individual case, a question of fact: "has the accused

been denied the right of a fair trial in all the

circumstances?" His conduct may then on that issue

be taken into account in an appropriate case. That

would be our answer to tha4 if it please Your Honour.

TOOHEY J: Yes, thank you.

MR GORMLY:  But these are matters which we say are matters

which should be given the full consideration of this

Court. If the Court pleases.

MASON CJ: Thank you, Mr Gormly. The Court need not

trouble you, Mr Solicitor.

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Aboud

The Court does not doubt that there are involved

in this case principles of law of great importance.
However, when attention is given to the history of the

matter and to the applicant's participation in the delay that has occurred, the Court considers that the decision of the Court of Appeal is not attended with sufficient

doubt to justify the grant of special leave to appeal.

The application is therefore refused.

MR GORMLY: If the Court pleases.

MR MASON:  We ask for costs.

MASON CJ: Yes. Do you oppose costs?

MR GORMLY: Well, I can hardly do that, Your Honour. No, I

cannot.

MASON CJ:  Yes, the application is refused with costs.

AT 12.41 PM THE MATTER WAS ADJOURNED SINE DIE

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Aboud