Beljajev v Director of Public Prosecutions (Commonwealth)

[1991] HCATrans 115

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MlB of 1991

B e t w e e n -

BORIS BELJAJEV

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

(COMMONWEALTH)

DIRECTOR OF PUBLIC PROSECUTIONS

(VICTORIA)

Respondents

Application for stay and/or

bail pending special leave

application

BRENNAN J

Beljajev 1 6/5/91

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 6 MAY- 1991, AT 10.33 AM

Copyright in the High Court of Australia

MR R. MERKEL, OC: If Your Honour pleases, I appear with ~v

learned friend, MRS.A. SHIRREFS, on behalf of th~

applicant. (instructed by H.S. Wise Gershov & Co)

MR S.P. CHARLES, OC: If Your Honour pleases, I appear with

MS L. LIEDER, on behalf of both Directors.

(instructed by the Australian Government

Solicitor). Your Honour, before my friend begins,

can I say that we have had handed to us, some 10

minutes ago, a new affirmation made by

Mr Alan Schnider, who is the solicitor for the

applicant. I do not know if Your Honour had a copy

of it. It is a short, two page - - -

HIS HONOUR:  Yes, I think I have seen that. Was that filed

this morning? Is that the one?

MR CHARLES:  Yes. Notwithstanding that it appears to have

been affirmed last Friday, and that there has been
fairly frequent contact with the representatives of

the applicant during the weekend, we have only just

received this, which is not very helpful. The

difficulty that it raises, Your Honour, is that it

makes a number of factual assertions which we would

wish to contest strongly and I simply say,

Your Honour, that while I am not suggesting that
anything should happen other than that the matter
should proceed, we may be forced to make a number

of simple assertions from the bar table in relation

to contested matters of fact.

HIS HONOUR: Well, we will see how it goes.

MR CHARLES:	Your Honour, can I also say that I should simply inform the Court that we would contend that
the applicant has a clear right of appeal to the
Full Court of Victoria under section 10 of the
Supreme Court Act. That has not been exercised,
nor was any application made either to
Mr Justice Marks or to the Full Court for a stay. If the Court pleases.

HIS HONOUR:	Yes, Mr Merkel.
MR MERKEL:	If the Court pleases, just in relation to

matters my learned friend had raised, we likewise

received his affidavit which was somewhat lengthy,

I think very late on Friday, and I was not in a

position to get instructions on it until last night

and I think my instructor saw it for the first

time, so we may likewise have to raise certain

matters by way of assertion in respect of his

material, but hopefully neither of the two

affidavits will go to the heart of the issue.

I am pleased to see the he thinks there is a

clear right of appeal. As we understand the

Beljajev 2 6/5/91

Supreme Court Act, there is no right of appeal and

indeed I will be addressing Your Honour on that

matter as part of our overall submissions.

Your Honour, the application arises in respect of

an order by Mr Justice Marks on 24 April, revoking

the order granting bail made by the judge dealing

with the pretrial direction, His Honour

Judge Kelly. The jurisdiction was exercise under

section 18A of the Bail Act - - -

HIS HONOUR:  Perhaps I should take your material from you

first, Mr Merkel.	What material do you read on
this application?

MR MERKEL:  Your Honour, the material we read is the

affidavit of Alan Harvey Shnider, which was

affirmed on 2 May 1991. The further affidavit of

Mr Shnider, affirmed on 3 May 1991 and,

Your Honour, two exhibits to Mr Kearns' affidavit,

sworn on behalf of the - as I understand it, the

two directors, but certainly the Commonwealth

Director of Public Prosecutions. They relate to the list of tapes which will be the subject of the matters before His Honour Judge Kelly. That will

be the material we rely upon, Your Honour.

HIS HONOUR: That is exhibit Band C to Mr Kearns'

affidavit.	I shall see what material Mr Charles
has.

MR CHARLES:  Your Honour, we will rely on the affidavit of

Mr Kearns which was sworn on 3 May 1991, last

Friday. That is our material, Your Honour.

MR MERKEL:  Your Honour, the essential issue that arises on

the present application relates to the entitlement

of a trial judge to order the processes in his

court to achieve three objects: one is to avoid

unreasonable or unacceptable delay in relation to

the commencement of the trial; the second is to

ensure the pretrial procedures are utilized to

ensure a fair trial, and the third, Your Honour, is

to ensure that any accused who is held in custody

pending his or her trial is not unreasonably or
unacceptably deprived of their liberty pending the

hearing of the trial.

It is fairly important in the present case,

Your Honour, to appreciate that the trial judge's

jurisdiction was being exercised under the rules of

the county court in relation to criminal trials

which are not before Your Honour and if I can just

hand up a copy of rule 11, this also is relevant to

the question of the absence of jurisdiction in the

Full Court to deal with this matter and the basis

upon which these orders which were appealed to

Beljajev 3 6/5/91

His Honour Mr Justice Marks were made.	Under
rule 11 - - -

HIS HONOUR:  Mr Merkel, why am I concerned with the matters

to which you are now directing your submissions?

MR MERKEL:  Your Honour, because it is important in the

present case for two fundamental reasons: to appreciate that what was being carried out by

His Honour Judge Kelly was the ordering of the

pretrial procedures in his court for the purpose of

ensuring an early and fair trial.

HIS HONOUR: But am I right in thinking that this is an

application for bail pending the hearing of the

application for special leave?

MR MERKEL:  Your Honour, its effect would be that, although

it is our submission that what we are seeking is a

stay on His Honour's order which would have the

effect of leaving Judge Kelly's order granting bail

on the conditions His Honour granted it stand. So

it is really a stay of His Honour Mr Justice Marks'

order which revoked the bail granted by His Honour

Judge Kelly, rather than an application to this

Court to grant bail. So it is really under the

heading of the stay, rather than a positive order

for granting of bail that we make this application.

HIS HONOUR:  But it is pending only the application for

special leave to appeal.

MR MERKEL: That is so, Your Honour, but it is our

submission that what has occurred in the present

case warrants a stay of the order sought to be

appealed from pending that application because we

will be submitting, Your Honour, that having regard

to the facts of this case, the status quo that

ought to be preserved, for reasons we will seek to

enunciate, is the status quo that prevailed before

His Honour Judge Kelly rather than that which was

changed by His Honour Mr Justice Marks.

In other words, His Honour's judgment and His Honour's disregard of the matters that really

activated the trial judge to make the orders he

did, in our submission, so vitiated His Honour's

judgment that the correct or appropriate status quo

in this matter is that before His Honour

Judge Kelly.

HIS HONOUR:  I can understand that, but do you not have a

preliminary difficulty to overcome, and that is

invoking the jurisdiction of this Court to preserve

the status quo pending an application for special

leave?

Beljajev 4 6/5/91

MR MERKEL:  Yes, Your Honour, and this Court's jurisdiction

having been invoked, it is incumbent upon us to

satisfy the Court that a stay is appropriate in all

the circumstances and, as I understand it, this

Court has - a single Judge of this Court has the

jurisdiction to grant a stay in an appropriate case

pending an application for special leave being

dealt with.

HIS HONOUR:	But on very clearly defined bases.
MR MERKEL:	Yes, Your Honour, and we would submit that those

bases have been - and we will seek to enunciate

them - clearly defined by us. In other words, what

has occurred here, Your Honour, is that the effect

of His Honour Mr Justice Marks's orders is to

interfere with what we submit is the correct status

quo pending appeal and that if we are successful on

the appeal, we will be forever deprived of the loss

of liberty in the meantime. We are conscious of

the onus, Your Honour, that is required in a case

such as the present pending an application for

special leave, and we accept we must meet an onus

to clearly define the circumstances which should

justify a stay, and we would submit that this case

is one which does warrant that relief, pending what

we would ask for as an expedited hearing of the

special leave application.

Your Honour, were it not for the manner in

which His Honour Mr Justice Marks interfered with

the trial judge's discretion, and had His Honour in effect applied correct principles and had regard to the entirety of His Honour the trial judge's

reasons, we would maybe stand in a very different

position to that which we are in before

Your Honour. But on no fair reading of

His Honour's judgment, in our submission, can it be

said that His Honour has not fallen into very

fundamental error which has vitiated his reasoning

very basic principle of the criminal justice	and in doing so has, in our submission, violated a	system, one that was commented upon by members of
the Court in Jago, of the importance of the trial
judge utilizing and being free to utilize his
pretrial procedures to ensure a fair and expedited
hearing.

And when a violation of those processes leads

a trial judge to conclude that a person presumed

innocent, of course, should no longer be deprived

of his liberty and deprived of his liberty in
circumstances that have been found to have grossly

interfered with his preparation for a fair trial,

it is appropriate that that trial judge's ruling

not be interfered with unless there are very strong

and cogent grounds to demonstrate error, to

Beljajev 6/5/91

demonstrate injustice, and to demonstrate that it

was not reasonably open, on any view of the facts,

for the trial judge to do what he did.

Mr Justice Marks' decision raises what we

would submit is one of the fundamentals of this

pretrial process, namely whether a trial judge who

finds that assurances given to him have been abused

and dishonoured, assurances given for the purposes

not only of having an expedited hearing, but for
the very purpose of avoiding the grant of bail on
the first application should, in effect, be allowed
to be described by the trial judge as inexcusable,

but be walked away from by the Crown.

His Honour found that those circumstances

cannot and are not capable of constituting

exceptional circumstances and we would say that
that is the issue confronted by His Honour, and we

say that that is an issue which, on no view of

His Honour Judge Kelly's reasons, and it is both

sets of reasons, was open to a judge on appeal to

find, and on the facts of the present case was not

open to His Honour to find.

That is, in effect, where I am heading,

Your Honour. There are three stages in which I

wish to advance the argument. The first is to

indicate, Your Honour, why there is no right of

appeal, in our submissions, to the Full Court. The

second, Your Honour, is to indicate that matters of

some importance are raised on the role of an

appellate court when reviewing the trial judge's

discretion to order his interlocutory processes,

and I am not talking now about minor processes, but

those fundamental to the administration of justice,

to secure the objects of those processes which I

have outlined to Your Honour already, and the

third, Your Honour, is to indicate that on any fair

reading of His Honour Mr Justice Marks' approach to

these matters, His Honour's judgment is so vitiated

by error and very basic and demonstrable error,

that the appropriate status quo to be acted upon is

that of the trial judge rather than His Honour

Mr Justice Marks - trial judge who had full control

of the processes, full control and cognisance of

the facts and matters he was dealing with, as

against a judge who took a view that we would

submit was just not reasonably open to him.

We would seek to demonstrate those matters and

conclude, Your Honour, that in this case, for the
reasons we have, in effect, outlined at the
conclusion of Mr Shnider's affidavit, the

deprivation of liberty and the interference with

the processes of the Court will irreparably harm

and deprive the accused of many of the fruits of·

Beljajev 6 6/5/91

the victory that he could achieve if the appeal is

the subject of special leave and is successful.

If I can proceed in that order to Your Honour,

the first matter is the fact that under section 18A of the Bail Act, there is a right of appeal granted in very general terms.

HIS HONOUR:  Before you go to that, Mr Merkel, it seems to

me that the point that you must make at the end of
the day is that if there should be a grant of
special leave and if the appeal should be

successful that by the allowing of

Mr Justice Marks' order to have effect until the

application for special leave is heard, your client

will have suffered such a loss as to make the

exercise of the right to seek special leave futile.

MR MERKEL:  Your Honour, we would submit, with respect, that

the discretion is a slightly wider one. We would

say that Your Honour stated what I would, with

respect, call the most obvious case for the grant
of a stay, where there would be total futility for

the matter to proceed in the absence of the stay.

We would say the discretion Your Honour has in this

Court is a somewhat wider one and that Your Honour

can have regard, and indeed, in our submission,

ought to have regard, to the circumstances of the

particular case and ask if a substantial injustice

would occur if a stay is not granted.

HIS HONOUR:	What is the jurisdiction of this Court?
MR MERKEL:	We say, Your Honour, there is an inherent

jurisdiction in this Court to grant a stay pending an application for special leave. The application

having been filed, the jurisdiction of the Court is

called into effect and operation and this Court has

the inherent jurisdiction to order its processes

and, indeed, grant stays pending appeal in an

appropriate case and pending special leave.

HIS HONOUR: Well, as I have understood it the view has been

taken that that inherent jurisdiction inheres

precisely because it is necessary to preserve the jurisdiction to grant special leave from futility.

MR MERKEL:  Your Honour, futility is but one example,

Your Honour, but we would say it is not the only example. Total futility. We would say that there

is - I do not want Your Honour to misunderstand me

we do say that the fruits of success on appeal

will be in significant respects rendered futile but

not entirely futile. I think Tait's case was the

prime example of what Your Honour has said is

futility, but we say, Your Honour, that that is not

meant to be an exhaustive statement and indeed,

Beljajev 7 6/5/91

could not be an exhaustive statement of the Court's

jurisdiction.

If this Court is of the view that there is a

substantial injustice, not capable of being

remedied on appeal, which will occur pending the

application for special leave and appeal, this

Court has jurisdiction to grant a stay. It is not

a matter of jurisdiction, Your Honour. It is, in

our submission, a matter of whether the Court ought

to exercise that jurisdiction. When it comes to

the deprivation of the liberty of a subject, that,

we would say, is one of the prime examples of where

this Court will exercise that jurisdiction.

It is a matter of how to best protect the

status quo pending appeal, in the interests of

justice.	We accept we must demonstrate a
substantial injustice.	We accept that we must

demonstrate a deprivation in significant respects of many of the fruits of a successful appeal, and

we certainly say that that occurs in the present

case.

HIS HONOUR:  Mr Merkel, I do not wish to interrupt the

presentation of the case and the order in which you

wish to put it because I am conscious of the

importance of the application, for the reasons that

you have ever so briefly outlined, but I must say

that the way in which you are putting it, in terms

of the jurisdiction and the exercise of the

jurisdiction, is alien to my understanding of what

the jurisdiction and the manner of the exercise is

and, at the end of the day I think you are going to

have to convince me that my view of it is wrong in

the light of the authorities.

MR MERKEL:  Yes. Well, Your Honour, I will seek to do that,

but I should indicate that as I indicated at the

outset, a stay was, in effect, the same as seeking

bail, pending the application for special leave and

we do put the application in the alternative; that	this is an application where Your Honour ought, in
the circumstances, grant bail, pending the
application for special leave. We say that may
have a wider discretion which the Court may
exercise and we certainly do wish to put the
application on both bases. We say that the issues
we seek to raise are issues of substance and it may
be that what Your Honour indicates that maybe this is appropriately a case of bail pending the
application for special leave is maybe the more appropriate way to deal with it.

HIS HONOUR:  We will need to examine the basis of the

jurisdiction to grant bail, pending the

consideration of a special leave application.

Beljajev	6/5/91
MR MERKEL:	Yes, Your Honour, we do put both in the

alternative, and I think Chamberlain's case was an

example where Your Honour was called upon to

consider that very matter.

HIS HONOUR: That was bail after conviction.

MR MERKEL:  Yes, Your Honour. We would say that bail after

conviction, for reasons enunciated by Your honour,

is still within the Court's discretion, but for

very powerful discretionary reasons Your Honour

concluded it was inappropriate for this Court to

grant bail in those circumstances. We would say

that in the present case we would hope to persuade

Your Honour that in these circumstances this is an

appropriate case for bail to preserve the integrity

of the system, Your Honour, and we put it as high

as that in the present case.

Now, I accept at the outset, that that imposes

a high onus upon us and for those reasons we do

need to give Your Honour a fair overview of the

context in which Judge Kelly came to grant bail and

exercise the jurisdiction which Your Honour in

Jago's case, I think, traced the history of back to

origins which Your Honour commented upon, seemed to

be as old as the gaols themselves. It is a

jurisdiction this Court has commented upon on a

number of occasions, including Jago, but prior to

Jago, is one that is a very important tool or

vehicle for a trial judge to ensure the processes

in his court are not abused and are ordered to

secure the object of the criminal justice system

and we would submit that if an appellate court can

interfere in the way-His Honour has in the present

case then that effectively undermines that whole

process.

Section 18A, Your Honour, needs to be

understood, and this is also an important question

in itself. Section 18A is a section of the

broadest of thought and gives a very wide ability

to appeal in the Director of Public Prosecutions,

that when one goes to the parliamentary speeches

underlying the width of that section, it was

designed to cover situations where there may be a

grant of bail by a Justice of the Peace or a

magistrate in a late night sitting, as a matter of

some urgency, where there is little time to

consider the situation, and that, Your Honour,

gives a right of appeal, as does the right from a

trial judge who has taken charge after the filing

of the presentment of the criminal trial under the

rules of court, to order his processes to avoid

abuse.

Beljajev 9 6/5/91

Now we would submit that we are not concerned

with the former case, we are concerned with the
latter and we would submit that notwithstanding

what may be said to be some breadth of jurisdiction

under section 18A, where there is an interference

in the latter case that raises very special

questions of a kind which this Court has indicated

can be appropriately the subject of criteria, which

we say are very fundamental in the present case.

Your Honour, could I first briefly - I will

seek to do it very briefly - found the reason why

we are here before Your Honour, rather than before

the Full Court - I can just state the relevant

sections, Your Honour, and maybe possibly deal with

my learned friend's argument that we are in the
wrong place in response to what he has said.

Your Honour, under section 10(1) of the Supreme

Court Act it says:

The Court constituted by a Judge may hear and

determine all matters, whether civil or

criminal, not required by or under this or any

other Act or the Rules to be heard and

determined by the Full Court.

and subsection (2) says:

Unless otherwise expressly provided by this or

any other Act, an appeal lies to the Full

Court from any determination of the Court

constituted by a Judge.

Then, Your Honour, section 14(3) preserves what has

long been the situati"on, namely appeals in a

criminal matter do not lie except in accordance
with Part VI of the Crimes Act, and that section

provides, Your Honour:

Except as provided in Part VI ..... an appeal

does not lie from a determination of the Court

constituted by a Judge made -

and can I read the relevant words, Your Honour -

in relation to the trial or proposed trial of

a person on indictment or presentment.

The presentment in the present case, Your Honour,

was filed on 13 July 1990. The pretrial

procedures, which I was going to hand up to have handed it up to Your Honour - order 11,
particular subrule 10 and 11 indicate the

jurisdiction is conferred for pretrial conferences

and pretrial hearings and directions, which was the

jurisdiction exercised by His Honour after the

Beljajev 10 6/5/91

presentment was filed on 13 July 1990. The orders

in the present case were made in the exercise of

that jurisdiction and were orders in relation to

the trial, and I will take Your Honours to the
material, but there is nothing clearer than that

the whole basis upon which the bail application

proceeded related to procedures for the trial, at

that time a proposed trial, and when

Mr Justice - - -

HIS HONOUR:	Which rule should I be looking at?
MR MERKEL:	Rule 11.11, and particularly, Your Honour, 11.11

subrule 6.

HIS HONOUR:  That is the jurisdiction which was exercised by

Judge Kelly, is that right?

MR MERKEL: 

Yes, Your Honour.

HIS HONOUR: 

Yes.

MR MERKEL: 

And His Honour is the trial judge, so that this

is His Honour ordering the processes for trial of
the matter in His Honour's court after the

presentment was filed.  Your Honour, there are a

number of cases - - -

HIS HONOUR: 

How do you reconcile, if you do reconcile,

section 14(3) of the Supreme Court Act with
section 18A of the Bail Act?

MR MERKEL: 

Your Honour, 14(3) -

HIS HONOUR: 

Is the court in 14(3) the supreme court?

MR MERKEL: It must be, Your Honour.

HIS HONOUR:	Then the question arises, I suppose, whether or not a decision under 18A of the Bail Act falls
within 14(3) of the Supreme Court Act?

MR MERKEL:  Yes, Your Honour. We would say that - I think

that is correct, Your Honour. "Court" in the

definition means the supreme court, Your Honour,

and - - -

HIS HONOUR:  Does it refer then to an indictment or

presentment which is presented in another court?

MR MERKEL: It just says, Your Honour, "on indictment or

presentment", and we would submit that it is not

restricted in any way, on its face, to trials in

the supreme court and indeed, Your Honour, if one

looks at the history of these provisions - and I am

just going to cite some authority to Your Honour

where the predecessors have been cons'idered by

Beljajev 11 6/5/91

other courts, Victoria, South Australia, and New

South Wales - Your Honour, there has been a long
history of not allowing any right of appeal at all

in respect of criminal matters which have been

defined to include the interlocutory steps of the

very kind we are dealing with in the present case.

Can I just give Your Honour the references and

indicate to Your Honour why, if one looks at the

matter historically, there would be a view taken by
the courts that section 14(3) is not to be read
down narrowly but, as a matter of policy, is to be

read down in its widest context, Your Honour. The

decisions - and I can hand them up to Your Honour

but I do not want to read from them at this stage -

of the Full Court in McEwan v Waldron,

(1976) VR 495. That, Your Honour, was authority
for the proposition that an order by a supreme

court judge that a county court judge state a case is excluded from the right of appeal because it is

an order in a criminal matter, not a mixed civil or

criminal matter.

There is a very helpful discussion, Your

Honour, of the South Australian Full Court in

Reg v Garrett - - -

HIS HONOUR:  Can I just ask you about McEwan v Waldron.

That was an appeal to the Full Court, was it?

MR MERKEL:  It was an appeal to the Full Court from a single

judge of the supreme court who refused to order a

county court judge to state a case for the

determination of the supreme court, and it was held

that there was no right of appeal and that the
point that was made by Their Honours, particularly

at the top of page 498, Your Honour, and the bottom of 497, after Their Honours referred - this was the

judgment of Mr Justice Menhennitt - His Honour

referred at the bottom to the principles that were

long established in Victoria and His Honour said

that they: 

lead to the conclusion that no appeal lay from
the decision of Jenkinson, J., because it was

a decision given in a criminal matter.

However, counsel for the defendant, in an

argument powerfully presented, submitted that

the provisions of s. 152 of the Justices Act
giving a County Court judge a discretion as to
stating a case and giving the Supreme Court
power to order the stating of a case are sui

generis and are civil proceedings.  He

submitted that it is immaterial that the question of stating a case arises out of criminal proceedings and it is only if the

actual decision by the Supreme Court directly

Beljajev 12 6/5/91

affects the outcome of criminal proceedings

that the matter is a criminal matter.

And, Your Honour, that argument was then

rejected by His Honour in a judgment which other

members of the court agreed. So, Your Honour,

there has been a long history of that. I should

say, Your Honour, a very strong and very helpful analysis is that of the South Australia Court of Criminal Appeal in Reg v Garrett, which is the

second case I handed up to Your Honour,

(1988) 49 SASR 435. That bears many similarities

to the present case save, Your Honour, that there

was a right of appeal stated in similar terms to

section 10 of the Supreme Court Act and Their

Honours had to consider whether it was intended

that such a broad right of appeal could possibly

apply to criminal proceedings.	So there was no
equivalent to section 14(3).

Again it was an interlocutory matter that was

the subject of appeal.	The Crown had sought to
amend the presentment.	The defence had sought to

have the proceedings dismissed as an abuse of

process. The trial judge's orders were then

intended, or sought to be, the subject of appeal

and Their Honours, particularly in the judgment of His Honour Mr Justice Cox, examined in some detail

the whole history of the right or the absence of a
right of appeals in criminal matters unless
expressly provided for and indicated that the

general words of the statute were to be read down

as excluding, based on that common law analysis, a

right of appeal in a criminal matter.

His Honour Mr Justice Cox, in the middle of

page 446, Your Honour, at about a third of the way

down the page, said:

The orders of a judge that are excluded from	the general provisions of s. 50 are those that	are made in the original criminal jurisdiction
of the Court, and that extends to
interlocutory or ancillary orders that are
made by the Court prior to a proposed trial as
well as those made during the trial itself. To put it in another way, at least from the time an information was filed against the
appellant - and as to any prior jurisdiction,
see Priestly JA's judgment in Watson v
Attorney-General - there were proceedings invoking the Court's criminal jurisdiction
with respect to which an appropriate
procedu~al application could be made, and it
necessarily follows that any order made or
refused on such an application was made or

Beljajev 13 6/5/91

refused in the exercise of that criminal

jurisdiction.

We say that is very much the jurisdiction that

Judge Kelly was exercising in the present case.

The last case, Your Honour, is a case we have

not handed up to Your Honour but can I just refer

to it. It is the case of Jure Marie, (1981)

4 Aust Cr R. It is a decision of the Court of

Criminal Appeal in New South Wales and

Appeal Justice Reynolds in that case indicated that

Part VI of the New South Wales Bail Act provided an exhaustive code as to the extent to which a grant

or refusal of bail may be called in question. His

Honour held that because it was superimposed on the

common law which previously accepted there was no

appeal in such a case, it was to be treated as a

code.

So, by separate process, Your Honour, it would be somewhat unusual if the general wording of

section 10 were somehow to in effect overrule a

long and very established exclusion of rights of

appeal to a Full Court in matters such as this, so

that both on the Bail Act constituting a code and

not providing for any right of appeal from a single

judge, alternatively the exclusion under

section 14(3), we would submit there is no right of

appeal or, put another way, Your Honour, the right of appeal would be so uncertain, and its existence

so uncertain, that in our submission it was

appropriate to seek to come to this Court in the

manner that we have. It would be a very

substantial inroad on a very long established

practice to exclude ·appeals in such matters, if

that were the case.

Your Honour, if I could move on to the second

point, as the issues of principle that we say this

case raises, and we have sought to outline those in

Mr Shnider's first affidavit, but in essence the

matters we have sought to identify, Your Honour, is

the matters raised in the present case are really

set out in paragraph 44(c) at page 17 of

Mr Shnider's affidavit. We say that on any fair

reading of the material before His Honour, and what

His Honour had indicated that what His Honour was

doing was exercising his jurisdiction to regulate

not only the pretrial, but the trial procedures

because the pretrial procedures in this case were

clearly designed to ensure the orderly and fair

conduct of the trial itself, because they directly

related to the trial - the three objects set down,

Your Honour, to avoid delay; to ensure a fair trial

and to ensure there was no unjust and unreasonable

deprivation of liberty.

Beljajev 14 6/5/91

Your Honour, I will return later, if I might,

to the basis of the jurisdiction in the present

case, but it may be sufficient to say for present

purposes that in Jago's case, (1989) 168 CLR 23 -

we had a photocopy of that, Your Honour, because it

is fairly important in the present context -

Your Honour at page 39, at the bottom of the page,

discussed the history of the Cou~t's power ''to

protect an accused from unacceptable delay" and, in

effect, at page 40 outlined the basis of that

history and its relationship to bail itself. At

page 45 Your Honour, in the top paragraph, after

commenting on the limits of the Court's resources

and His Honour Judge Kelly made a comment on that

very point, Your Honour indicated the courts can: so mould their procedures as to avoid

unnecessary delays in the disposition of cases

both criminal and civil.

And then the last sentence, Your Honour:

The furthest which a court can go is regulate

its procedures to avoid unnecessary delay, to

do what can be done to achieve fairness in a

trial and to prevent the abuse of its process.

We say that is precisely the jurisdiction exercise

by Judge Kelly. Mr Justice Deane, at page 56,

similarly recognized that jurisdiction, but in

relation to bail itself, in the middle paragraph at

page 56 His Honour said that:

Once a court is seised of criminal

proceedings, it has control of them. In the

absence of applicable express statutory

provision, that control includes the power -

either inherent or implied - to ensure that

the court's process is not abused by the

proceedings being made an instrument of unfair

oppression.

Can I indicate, Your Honour, I handed up to

Your Honour the County Court Rules, but of course

by doing that I seek to just pinpoint that there is

a statutory basis for the jurisdiction, but I do

not in any way seek to say that there is not

otherwise an inherent basis for it as well - either

inherent or implied, as His Honour said.	And
His Honour then added:

The accused in such proceedings is entitled to

invoke that power if he is being subjected to

unreasonable delay in bringing on the trial.
The appropriate relief in such a case will
vary according to the circumstances. It may

be an order that the matter be adjourned for a

Beljajev 15 6/5/91

period within which the prosecution is

required to supply particulars and become

ready for trial. If the accused is in custody, it may be an order that he be

released on bail.

Now, Your Honour, that last order, where bail

has been refused, will only be ordered in

exceptional cases. How long accepted bail is as an

answer to the failure of the Crown to comply with

directions or assurances was accepted in another

case, Your Honour - if I can just give Your Honour

the re·ference - in R v Weaver, ( 1931) 45 CLR 321,

at page 333 in the joint judgment of the

Chief Justice Gavan Duffy, Justices Starke and

McTiernan, Their Honours commented that:

If the Crown fails to give proper particulars,

then the Judge can adjourn the trial until it

does so, and if he thinks fit bail the

accused.

So that, Your Honour, is the jurisdiction exercised

in the present case. Your Honour, in substance it

is our submission that the court, on appeal under

section 18A from such orders, ought only to

exercise that jurisdiction if three conditions are

established, and we say this would be the

substantive matter raised on the appeal itself if

special leave is granted and the three matters were

set out in paragraph 44(b) of our affidavit,

Your Honour, at page 17, that we would submit that,

notwithstanding the wide wording of section 18A,

such an appeal should only succeed if the trial

judge's decision contained an error of law and was

therefore clearly wrong, but we add additional

reasons, Your Honour, for the interference. In

such a case, we say, further, Your Honour, that the

trial judge's decision, if left standing, would

result in a substantial injustice, and thirdly,

Your Honour, we set the standard as one which

Mr Justice Marks commented upon, that no reasonable

judge could have concluded that what occurred in

His Honour's court was capable of constituting

exceptional circumstances.

Can I now, Your Honour, make good what really is the central point of our submissions today to

Your Honour, and that is the very substantial injusti~e that has occurred in the present case, an injustice which has resulted in the unjust

deprivation of liberty which is continuing.

Your Honour, what His Honour did not do, with

respect, is to have regard to the totality of the

context in which this matter arose before

His Honour Judge Kelly. This accused person has

Beljajev 16 6/5/91

now been in custody, Your Honour, for some two

years and three months, almost two years and three

months, and the prospect of a trial date seems to

be no closer or more ascertainable at this point

than it was a long time ago.

He was arrested on 17 February 1989. The

committal proceeded in two parts - and this is also

of importance, Your Honour. The first stage was a

committal between 29 May 1989 and 22 June 1989.

The Crown case which led to this accused's arrest

was based on the evidence of a gentleman called

Ristic. That witness, Your Honour, was found by

the magistrate to be totally unreliable and the
magistrate was not prepared to commit on the basis

of any evidence of Ristic at all.

In the course of the committal the Crown case

changed direction and it relied upon another

witness called Hills. As a result of those changes the committal came to a stop on 22 June and did not

resume again until 18 October 1989. Many of the

tapes - and I should say that the substantive basis

of the prosecution is based on videos and

electronic intercepts and telephonic intercepts -

originally relied upon were conversations with this

gentleman Ristic, which have now fallen by the

wayside. The Crown does not intend to call him as

a witness at all.

The second half of the committal, Your Honour,

started on 18 October 1989 and concluded on

15 May 1990. The magistrate declined to commit on

the basis of any of the matters on which Ristic
gave evidence; declined to commit and discharged on
all the matters that Hills had given evidence of on

the basis that his credibility was too unreliable

to commit, save for one category, and that was a

category that where anything Hills had said was

capable of being corroborated by other evidence,

the matter was one appropriately left to the jury;

and it is, in substance, those matters which the
matter is proceeding to trial upon.

On 18 May there was an application for bail to the magistrate who was required to deal with the

matter under section 18A, that is to refuse bail

unless there were exceptional circumstances.	I
hand up to Your Honour the last page of the
magistrate's decision. It is page 9295 of the
transcript.	So that this is a decision by a

magistrate who had had the conduct of the matter

and what the magistrate said, Your Honour, and

there was no quarrel with it, at that time or

since, is that there were not exceptional

circumstances but His Worship said, in the second-

last paragraph:

Beljajev 17 6/5/91

I have no doubt that continued preparation of

Mr Beljajev's defence will be severely

curtailed should he be continued to be held in

custody but considering all the matters put by the matters put by yourself and Ms Lieder, I am of the view that exceptional circumstances

do not exist.

Your Honour, there has been an acceptance from

the outset that the custody of the accused - and
there has been a determination on that matter -

must severely curtail his ability to prepare for

trial. It is not just a matter of listening to the

tapes. Common sense dictates that the matters

raised in Mr Shnider's affidavit about the ability

to prepare, instruct, interview witnesses that he

proposes to call, and assist counsel in preparing a

matter as complex and as lengthy as this are

substantially impeded and denied. But there is a
statutory policy that says that custody is to be

maintained unless there are exceptional

circumstances.

I should indicate, Your Honour, that at that

time the magistrate had believed - and I do not

criticize anyone for it - that the matter he was

dealing with would result in a trial in September

1990. That appears from Judge Kelly's first set of

reasons at page 2. The matter came before

Judge Kelly as a result of the presentment being

filed in his court on 13 July 1990, and it came on

before His Honour on 30 August for its first

mention.

At that time, Your Honour, it was indicated to

His Honour by the defence that it was expected the

trial would take 12 months.

HIS HONOUR:  When was the indictment presented?

MR MERKEL:	On 13 July 1990, Your Honour.
HIS HONOUR:	And a plea taken at that time?
MR MERKEL:	No plea was taken, no, Your Honour.
HIS HONOUR:	Has a plea been taken?

MR MERKEL:  No, not yet, Your Honour. I think in Garrett's

case there is a discussion of a number of cases

which treat the matter as having, in effect,

commenced - the trial having commenced upon the

filing of the presentment, rather than when the

accused is arraigned. I think ther~ are a number

of cases that go to that matter and I think it has been accepted that the trial for the purposes with

Beljajev 18 6/5/91

which we are concerned would treat it as commencing
when the presentment is filed.

Your Honour, the matter came on before

His Honour on the 30th and it was made clear that

it was expected the trial would take 12 months.

Counsel for the Directors, as I understand it, and

I can no doubt be corrected to my right or my left,

had indicated to His Honour that whilst they

believed the trial would take less, they would not
or could not dispute that estimate. But at all

events the matter has proceeded before His Honour

on the basis that His Honour has assumed and

expected it will take a 12 month trial and at that

time, on 30 August, His Honour indicated that he

would propose that the matter should proceed to

enable a trial in the second week of February

1991.His Honour then set about ordering the

processes of His Honour's court to achieve that

objective.

Now, if I can just indicate, Your Honour, the occasions on which this matter has come back before

His Honour prior to His Honour's dealing with it on

the second bail application. I do not want to go

into the detail of it, but when Mr Justice Marks

approached it in the way he did His Honour failed

to give any cognizance to the fact that His Honour

the trial judge was not only in control of

His Honour's procedures but had dealt with this

matter and its complexity in such detail that he

had full control of all the issues before him and

full cognizance of them.

The matter, Your Honour, came on for the first

bail application on 19 and 20 September. It was a

two day hearing. It then came back for mentions,

at which substantive issues were raised on many

occasions in relation to the conduct of the matter,

on 14 November, 15 November, 23 November,

10 December, 25 February, 1 March, 4 March,

5 March, 18 March, 19 March, 21 March and then

finally, Your Honour, on an extraordinary eight day

bail application, which was the second bail

application, that ran from 27 March to 10 April.

The reason I take Your Honour to those matters

is in the course of those applications His Honour

considered applications for separate trials and

numerous other pretrial applications by the various

accused, including the accused which we appear for.

So that to indicate - - -

HIS HONOUR:  How does the record stand at the moment? Is

there to be a joint trial?

Beljajev 19 6/5/91

MR MERKEL:  Applications have been made and that matter has

not yet been ruled upon by His Honour. So that

both the commencement date and how the trial will

proceed is still not yet the subject of rulings by

His Honour. There has been extensive argument about it so that remains to be seen, Your Honour.

Can I then take Your Honour to what occurred

on the first bail judgment of His Honour

Judge Kelly because Your Honour could be forgiven

for having read Mr Justice Marks' judgment and not

have known that there was a first bail application

where His Honour considered all of the matters

which Mr Justice Marks seemed to regard His Honour

as not taking to account - or many of the matters

His Honour had not taken into account at all.	But
could I just indicate to Your Honour that at the

outset of these matters was one issue which drove

all of the applications concerning bail before

His Honour, and that was this question of access

and the fundamental importance of access to the

tapes upon which the Crown proposed to rely. Can I

take Your Honour briefly to Mr Shnider's affidavit

just to give Your Honour that context, because

these are matters which His Honour

Mr Justice Marks, with the greatest of respect, did

not appear to have regard to, let alone give proper

weight to.

At page 6 of Mr Shnider's affidavit, at the

last line of paragraph 17, His Honour indicated

that he was proposing to seek to have the matter

set down for the second week of February and then

Mr Richter, appearing for the applicant,

Your Honour, then set out, through to the bottom of

page 6 and over to the top of page 7, that the

listening to and observing of the tapes was just

critical, that it had been something that could not

and was not able to be achieved until that point,

and then he indicates at the top of page 7, because

bail was inextricably interwoven with the

requirement to be able to examine the tapes, that,

he says:

we've been waiting upon this mention because
we contemplate applying for bail ..... there was

no point in applying for bail unless we knew what the prospective commencement date might or might not be.

Then, Your Honour, the matter was repeated in

paragraph 19: "On the 19th September" in the course of the application for bail it was the pressing need for access that drove the

application, and that is the way it was put by the

applicant. And then critically, Your Honour, in

Beljajew 20 6/5/91

paragraph 20 - and the issue before His Honour on

the first application was whether there were

exceptional circumstances in the requirement of the

accused properly to prepare because he was denied

access within the prison system to the tapes or the

ability to access them for preparation. What

His Honour said in response to the applicant's

case - this is in paragraph 20, third line:

"I take it if this application were to fail,

just dealing with the last matter first

because it seems to have become enmeshed in what you have been saying the Crown will be

prepared to provide some officer, for as long

as may be necessary to deal with these reel to

reel tapes, in a prison environment".

Ms King -

who was appearing as counsel for the Directors,

said:

"Yes sir, we will do that. We don't want this

trial delayed, Your Honour. We would like it

to proceed as swiftly as possible, because we

do understand that there is a long time in

custody without a trial proceeding. We also

want to be as fair as possible, that is to the

accused. We want them to have access to

whatever it is that they need, but we cannot

guess what it is. Your Honour, the

arrangements would have to be worked out with

the authorities at the Remand Centre, but we

would certainly be prepared to do our part in

respect of it, if that is what the defence

wanted, for Mr Beljajev to hear these tapes".

Then following that offer, His Honour expressed what we submit is a warning, and this lies at the

heart of everything hereafter that His Honour did

in this case. His Honour indicated: 

"The answer, of course, is that if that is not

capable of being done, then its failure to do
it or to provide some such access would have

two effects: it would, first of all, give a

good foundation to a further bail application

and perhaps to an adjournment of the case so

that it can be done, and would take any future

comment, if your worst fears were to come to

pass, off the backs of the judiciary and the

administration of justice and firmly on to the

backs of whatever organization it was that was

responsible for running gaols.

Indeed, that was the very kind of matter

Your Honour commented on in Jago, that the courts

Beljajew 21 6/5/91

can only go so far to discharge their

responsibility and duty in respect of a fair trial.

So, the issue was placed fairly and squarely on the

Crown at that point.

And then, in His Honour's reasoning, on the

first bail application, which is exhibit C,

Your Honour, His Honour twice, in references that

could not be said in any way to be veiled, referred

back to that warning which His Honour had given in

respect of the Crown's failure.

His Honour, in his first reasons, at two

places, first at page 6, Your Honour, the last

three sentences in the top paragraph where

His Honour said, talking about the argument for

bail becoming a strong one, His Honour commented

that:

this is particularly so where the delay is not

occasioned by the accused or his legal

practitioners. Obviously, a point may be

reached where, depending on the nature of the

case, it could be said that the tardiness of

prosecution or the inefficient administration

of the court have begun to work an injustice.

In such a case, bail must be granted because the liberty of the subject outweighs the right

to keep custody of the accused pending trial.

That was the first reference back to what was

before His Honour. And then His Honour expressed

it even more clearly, Your Honour, at page 11,

where His Honour, about a third of the way down the

page indicated - this is opposite the first punch

hole, Your Honour - that:

long duration of custody is not in itself an

exceptional circumstance brought about by

incompetence either in the prosecuting

authority or in the administration of the

courts, particularly in the face of warning

and the opportunity to remedy any defect might

provide such a circumstance but it would be

required to be a gross default.

And I should say, Your Honour, that that background

in context was not taken into account; not referred

to at all by His Honour, and His Honour's reasons

had proceeded as if the question of access had

really only arisen sometime after the second bail

application or during the second bail application.

I should indicate that in His Honour's reasons

His Honour refused bail after having regard to the

weight to be given to section 18A and .the statutory

intent which overrode the liberty of the subject.

Beljajew 22 6/5/91

Now, Your Honour, a number of steps occurred

after that application to endeavour to fulfil the

assurance given by counsel for the OPP. After

2 October, Your Honour, two hours a day of access

was provided to the accused. On 13 November the

defence were provided by the Crown with the list of

tapes that the Crown wished to rely upon. On

14 November the defence indicated, having now

access to that list at two hours a day just on

dealing with the Crown material, not anything the

defence would rely upon, it would take six months

to listen to the tapes. And on 15 November the

Crown came back and assured His Honour that 8.30 to

4.30 on every day of the week - I think the five

weekdays - would be provided to the accused to

listen to both the Crown tapes and the defence

tapes.

Now, Your Honour, here another fundamental

error has crept into His Honour Mr Justice Marks'

reasoning. The promise made by the Crown which led

to bail being refused on the first application and
the promise made to provide, in effect, access for

eight hours every day related to access to a list

of tapes about half of which, some 450 hours of

tapes - there were 900-odd hours of tapes that the

8500 had been reduced to - both sides wished to

refer to, half of which, Your Honour, were Crown

tapes; in other words, tapes the Crown wished to

rely upon. The other half were those which the

defence wished to rely upon in preparation for the

case. Neither side at any time raised any issue

about the bona fides and the significance of the

right of the accused to listen to those tapes.

I go into that kind of detail only because

Mr Justice Marks in his judgment assumed that the

bail order was made in respect of tapes which the

defence wanted to listen to for its defence and did

not touch upon tapes the Crown was wishing to rely
upon.	And His Honour emphasized that, so

His Honour not only approached the matter on a

fundamental error of fact but indicated that the

position may well be otherwise if it was the right

of an accused to listen to the Crown tapes, which

was in issue here. So it was mistakes like that

which I will take Your Honour to that we say have

so vitiated His Honour's approach to this case,

that His Honour has not really had regard to the

background of it in a proper way at all.	Indeed,
in many respects, not at all.

Your Honour, what then occurred, and I should

indicate exhibits Band C, which I will not seek to

take you to now, Your Honour - Your Honour will

recall I said we rely on Mr Kirne's affidavit,

exhibits Band C - they confirm that the tapes

Beljajev 23 6/5/91

which the defence wished to listen to embraced the

tapes which the Crown had indicated it wished to

rely upon and that it was that listening period as

well as defence tapes which were thereafter to

occur. The passage that I mentioned in

Mr Justice Marks's judgment, Your Honour - - -

HIS HONOUR:  Mr Merkel, do I need to understand any more

than that the application for special leave will be

supported by argument which tends to show that

Mr Justice Marks misconceived the basis of the

order made by Judge Kelly?

MR MERKEL:  Your Honour, we put it two ways. One is, as

Your Honour has put it, that His Honour's judgment

is attended by sufficient doubt for the correctness

of it not to, in effect, be accepted and therefore

for that not to disqualify from the application for

special leave. But there is a second basis which

we submit, Your Honour, that we, as I said at the

outset, acknowledge to Your Honour the onus that we
carry, and what we seek to demonstrate to

Your Honour by reference to this material is

something much more than that His Honour's judgment

is attended by doubt. What we want to indicate to

Your Honour is that His Honour's judgment, on the

basis of the uncontroverted facts before

Your Honour, is so vitiated by error that it is

inappropriate to treat it as the status quo, that
the proper status quo for the purpose of the

application we are making before Your Honour is

that which prevailed before His Honour Judge Kelly.

Probably the be_st example, Your Honour, was

the one that I was about to take Your Honour to,

and that appears at page 15 of His Honour's reasons

where His Honour said - this is exhibit F - I

should indicate His Honour approached the matter in

a somewhat unusual way. It was never put in issue

before Judge Kelly that there was anything other

than full bona fides about the defence requests and

the way in which the defence was approaching the

matter. The Crown did not dispute the right.

His Honour seemed to question whether it was right

that the defence could have access to any tapes it

wanted to for the purposes of its defence and

His Honour commented on that at the bottom of

page 15 where His Honour said:

It is important to emphasize that these latter

tapes which are the ones on which the Crown do
not intend to rely are the ones which are in

the eye of the storm.

Now, Your Honour, that is just factually wrong.

Half of those tapes, or thereabouts, are the tapes which Beljajev was to listen to in custody between

Beljajev 24 6/5/91

8.30 and 4.30, as well as the ones he wanted to

rely upon. And exhibits Band C, if that is in

issue, demonstrate that the overlap is of the order

I have indicated to Your Honour.

So His Honour approached this whole matter as

if the defence was exercising some cavalier wish to

just listen to tapes at their leisure which may or

may not be relevant. His Honour even mentioned

that eight and a half thousand hours, if listened

to in their entirety, may take some years. Yet the

defence had narrowed it down to only a limited

number of hours which was not all that different to

that which the Crown had indicated.

Your Honour, be that as it may, the matter was

left with His Honour with an assurance by the Crown

that all this would be done, and it was left on the

basis that the February trial date had to be

vacated because the lists of tapes showed that it

would not be able to be achieved. But then

His Honour indicated, at the conclusion of those

matters, that the matter would be expected to come

on at least for trial, not before the beginning of

the March and he indicated that at·that time it may

well come on in six weeks. So His Honour was still

seeking to regulate - and this appears in paragraph

30 - the trial date before His Honour.

What then happened, Your Honour, is between

December and February the promise was just broken

and some 78 per cent of the available time in

accordance with the promise was just not provided.

The point put by the Crown when the second

bail application came on before His Honour was that

the delay and the breach by the Crown was

inexcusable - that was conceded, but we will now

try and remedy the matter, and of course what

His Honour said, and Your Honour will here this -

this is His Honour Judge Kelly - His Honour

indicated well that may or may not be so, as to

whether that default can be remedied. But then,

Your Honour, it was in the light, and only in the

light, of those breaches, that the second bail

application came on before His Honour, and can I

indicate, Your Honour, that again what His Honour

saw as the critical issue - and we say

Mr Justice Marks never accepted as the critical

issue - was identified in paragraph 37 of

Mr Shnider's affidavit, where His Honour really

made it very clear that the exceptional

circumstance was that between 23 November
and 28 February there was a failure to use

78 per cent of the promised time and His Honour

indicated that:

Beljajev 25 6/5/91

I think we've really isolated this

circumstance here. It's a failure actually,

to do what needed to be done in order to get

this trial prepared in a reasonable time.

That set the basis for the bail application

and then His Honour handed down His Honour's
reasons on that application and that was

on 11 April, Your Honour, and that is exhibit D,

and it is in that context at page 1 His Honour at

the outset refers to the warning he gave the Crown.

Page 2, Your Honour, sets out the history of the

matter; page 3, in a passage that we say is

critical, after referring in the history of the

matters I have taken you to and, Your Honour, in

particular the Crown offer at the top of page 3,
but at the bottom, Your Honour, he refers to
the 78 per cent, about seven or eight lines from

the bottom of page 3:

Various reasons are given for this default,

but none of them are to be regarded as

satisfactory, especially those which plainly

indicate that resources were not made

available for the copying of reel to reel

tapes to serve as substitutes of the originals

in the event of damage, or which indicated

that priority had been given to other

investigations.

And His Honour says:

I will revert back to the legal effects of

that later -

and, Your Honour, he makes it absolutely clear that

no satisfactory explanation was given, and more

importantly, at page 5, in the last paragraph, he

says:

For the respondent this leader of counsel very

sensibly concedes the loss of time and admits

that it is inexcusable.

So you have, Your Honour, an admitted and conceded

breach of assurances given to the Court; assurances
which led to bail being refused, and then a

concession that the delay and the failure to comply

was inexcusable.

Now, Your Honour, at page 5, the way in which

it was put to His Honour by counsel for the

applicant is summarized.

HIS HONOUR:  Mr Merkel, I really do not see that I have to

be concerned with the specific steps that were

taken by each of the judges below in order to

Beljajev 26 6/5/91

decide this application and unless you can

demonstrate to me the necessity for my being so

concerned with them, then I think perhaps we might

move to the next point.

MR MERKEL: Well, I will leave that, Your Honour. The

necessity, Your Honour, was that, in substance,

what I am putting to Your Honour is that if

Your Honour reads the two sets of reasons of

His Honour Judge Kelly, we submit that they, on no

view - no fair reading - can be said to be vitiated

by any demonstrable error. They amount to a proper

exercise of the jurisdiction that has been

long-established and long-accepted, of a court

controlling its processes for the three reasons I

have indicated to Your Honour. I do not need to go

any further than that; that is why I take

Your Honour to those matters.

The difficulty, Your Honour, is really in the

last part, that having sought to identify that,

Your Honour, in our submission, when one goes to the way in which Mr Justice Marks approached this

matter, His Honour did not approach it, in our

submission, on the basis of any application of a

principle at all; His Honour, in effect, regarded

the matter as if it came before him without a
background and without a context, and disregarded
the findings of His Honour and disregarded the

questions that His Honour dealt with, and what

His Honour said at page 20 - and this probably says

it all, Your Honour, in the middle of the second

paragraph at page 20, His Honour said that - this

is just below the second punch hole:

The behaviour which His Honour identified -

which is that I have taken Your Honour to -

was just not capable without more of

constituting exceptional circumstances within

the meaning of the subsection.

We say, Your Honour, that His Honour was wrong, as

a matter of law, in stating that, and ignored

High Court authority that, in our submission, would

be directly contrary to that conclusion.

Secondly, Your Honour, the second way in which His Honour's approach was vitiated is that even

though His Honour was invited to and did treat the

matter as dealing with an error of law, His Honour

did not take any caution at all of the kind that we

submit should apply to an appellate court in such

circumstances, and thirdly, Your Honour - and they

are the three grounds on which I indicated to

Your Honour we would submit an appellate court

Beljajev 27 6/5/91

should only intervene in such a circumstance and

just as manifest error are not capable of

constituting exceptional circumstances - and

thirdly, Your Honour, His Honour throughout just

got many of the basic facts on which His Honour was

operating and forming his views upon were just

wrong, and I say that, Your Honour, not as a matter

of contention or assertion but were demonstrably

wrong - I took Your Honour to one example at

page 15 - His Honour at page 17 said that there is

no question that the Crown provided its tapes - the
very eye of the storm were the totality of the

tapes, which were the Crown tapes which it was

going to rely upon, and the defence tapes, and that

kind of error, another error, Your Honour, is at

page 16, His Honour said there was no agreement as

to the method, and in fact, at the first hearing,
there was agreement on the method of listening to

the tapes, and as I have indicated there was

agreement on the time, so that was all dealt with.

So Your Honour, His Honour also failed to take

into account, at page 18, that the offer to let the

tapes be listened to was to meet the defendant's

bail application, not just a gratuity on the part

of the Crown, and we say, Your Honour, at page 21
of His Honour's reasons, there was an extraordinary
catalogue of matters His Honour said Judge Kelly

did not take into account, and they go from

paragraphs (a) through to (o). The first one,

Your Honour, is His Honour ought to have considered

that no date for commencement had, in fact, been

fixed.

The whole basis on which the application was

put from the first until the second bail

application to His Honour was that there was yet to

be a trial date and a man had been deprived of his

liberty already for in excess of two years.	And
His Honour then set out another catalogue of
matters which were all before His Honour and which
His Honour clearly had knowledge of.	So His Honour

sought to say His Honour's discretion miscarried

because he did not take into account matters.	None
of those matters are matters which there is any
evidence of at all that His Honour did not take

into account. So, Your Honour, for those reasons

in summary, and we indicate without having to go

through the detail of them, Your Honour,

His Honour's approach to this is one that we submit

demonstrates error - error of the kind,

Your Honour, that we submit should have the status quo restored to that which prevailed before

His Honour Judge Kelly.

Now, Your Honour, the irreparabie harm, or the

futility aspect, Your Honour, is an aspect that we

Beljajev 28 6/5/91

have sought to identify in paragraph 47, and it is

twofold. We say, Your Honour, in the first

instance, if the status quo is not restored and the

applicant is successful, he will have been

unjustifiably and forever deprived of his liberty

in the intervening period, Your Honour. We say the

way in which this Court should approach it, if

Your Honour accepts the submission we have put, was

that he was entitled to be bailed and it is of

importance, Your Honour, that the status quo did

change, and we submit in our favour, as a result of

His Honour Judge Kelly's order, because after the bail order was made, from 16 April to 24 April he

was actually on bail and honouring his conditions

of bail, so he had gained his freedom and had

started to prepare for the case. So that he had

some eight days, at which he attended a trial

before His Honour, so that the risk of abscondment

is not demonstrated, and equally importantly,

His Honour Judge Kelly, at page 4 of his first

reasons, Your Honour, indicated that this was not a

case where the Crown case was so strong that there

might be an incentive to abscond, and it was a case

where the defence have shown a sufficiently

arguable defence to not have reasons inherent in the nature of the case itself that would suggest

there was an abscondment - a prospect or a serious

prospect of absconding.

The second aspect, Your Honour, is that he

will be denied the opportunity to properly prepare
matter accepted by the magistrate and, we say,
his defence to ensure his fair trial and that was a
matter that we addressed further, Your Honour, in

common sense would dictate that if Your Honour

looks at the facts in that second affidavit the
extent of the documentary preparation, the

electronic inspections and listening that is

required, the necessity to confer with legal

advisers, the limited access and the matters there

set out, Your Honour, obviously show, as the

magistrate who heard the matter for so many months

found, that custody will severely curtail the

applicant's ability to prepare for his trial.

HIS HONOUR:  But the difficulty with that approach is that

no doubt it was put to and rejected by Judge Kelly

on the first bail application?

MR MERKEL:	Yes, it was put to Judge Kelly and His Honour found that given the offer of the Crown, that could
be at that time substantially overcome for a trial
then anticipated to occur in February. So that
His Honour was ordering his processes at that time for a person who had been in custody'for of the order of one and a half years, for a trial that

Beljajev 29 6/5/91

would occur in about six months - in less than six

months, in circumstances where the counsel for the

accused had stated to His Honour that we have

withheld from making this application because we
were waiting for an anticipated commencement date,

and the point we make, Your Honour, is that is

correct; that it was only on the basis of the Crown

offer to, in effect, alleviate and overcome that

problem to enable a trial in February, that we

submit that bail was refused and then there comes

the inexcusable delay that led to the second

application, after the clearest of warnings by

His Honour to the Crown.

So that what we say, Your Honour, is that

there comes a point where the Crown can no longer

be heard to deny the kind of matters Mr Shnider has

raised by reference to its own misconduct which it

has conceded by saying, we will now try and mend
our hand - mend their hand in a way, Your Honour,

which was no different to that before His Honour

Judge Kelly at the second bail application when the

Crown, in effect - and I took Your Honour to that

passage, and it was at the bottom of page 8, the

Crown said, Your Honour, "Well, our delay is

inexcusable", but at the bottom of page 8 the Crown

sought to persuade His Honour, as it no doubt will

seek to persuade you, Your Honour, that the

provision of the original tapes now will so
expedite preparation that the time lost will be

regained and His Honour said, "I remain

unpersuaded; it may be so, it may be not". He said

that he is able to say that the prosecution behaved

during the three months in a way that was cavalier

of the interests both of the defence and the Court

in the proper preparation of the trial, and left

the accused kicking his heels in jail. Now we say,

Your Honour, they are very weighty reasons indeed,

which in the context before His Honour led

His Honour to conclude that the warnings he had

given had taken the Court to the limit of its

processes and that in those circumstances that made

the grant of bail, as His Honour viewed it,

mandatory, because they so overwhelmed the other

considerations His Honour had outlined in his first

bail application.

HIS HONOUR:  But if the question for me at present was one

of whether bail should be granted or the order of

Justice Marks stayed, pending the hearing of the special leave application, if the refusal of that application would result in an inability of the applicant to prepare for his trial, that would be

one thing. If it means simply that he is left in

custody for that time and that is an extension of

the time for which he should not have been left in

custody, that is another. Now is there anything

Beljajev 30 6/5/91

that you wish to say in terms of the effect on the
preparation for trial of the period between now and

the hearing of a special leave application being

spent in custody rather than on bail?

MR MERKEL:  Yes, Your Honour, it is really Mr Shnider's

affidavit material that deals with that,

Your Honour. He makes it clear that - - -

HIS HONOUR: 

I can understand that.

MR MERKEL: 

- - - that impediment is a very substantial one

and that he is now left, yet again, to what
His Honour Judge Kelly said, he remains unpersuaded

about - it is the very matter that I just read to

Your Honour - His Honour said, "Well the Crown now

are offering to provide all these facilities yet
again". His Honour said, "I remain unpersuaded; it
may be so or it may be not", and we say we are left

with the same situation.  The trial judge - and

this is why I referred Your Honour earlier to the
integrity of the system that is now being

challenged - Mr Justice Marks has effectively
stripped the trial judge with the one weapon he
has, or vehicle for controlling his own honest

process by being told by a judge from the supreme

court that is not capable of constituting an

exceptional circumstance. That is why I said,

Your Honour, that this goes to the integrity of the

process, not just a wrong application of principle,

and that means, Your Honour, that the inexcusable

delay of the past can not offer one assurance that

cannot be repeated for the future.

There has not been an undertaking to the Court as such. There has been no assurance of the kind

that puts the situation in any different position

to that which it was in, except we have a trial

judge who no longer has the power to control his
own process and, Your Honour, on the other side of

the scale there are weighty matters why

Your Honour, in our submission, ought to regard the

risk to which the Crown is subjected as minimal.

The first, Your Honour, were referred to by Judge

Kelly in his first reasons at page 4, and that is,

Your Honour, that in talking of the strength of the

case His Honour at the last sentence at the top of

page 4 said:

This is not a case in which it could be said

that the only reason the accused might have

for applying for bail is to gain a few months

liberty, or to flee the jurisdiction.

And I have indicated that the magistrate,

Your Honour, had made highly adverse findings on

the main two Crown witnesses, so that this is not a

Beljajev 31 6/5/91

case where there is a confession or a strong Crown
case. Certainly not a case of the kind that one
would expect there is a serious likelihood or risk

of the accused fleeing from the jurisdiction.

Secondly, Your Honour, I think I can assure

Your Honour, from what I have been told by those

attending before His Honour Mr Justice Marks, the

accused was in attendance during the hearing before

His Honour Mr Justice Marks and His Honour did not

leave a great deal of doubt in His Honour's

courtroom that this was an application that did not
look like it was going to run very well for the

defence. He was in His Honour's courtroom and from 16 April to 24 April was on bail, complied with his

conditions and did not abscond. That is,

Your Honour, after already 26 months in custody. Thirdly, Your Honour, the Crown and the

defence agreed upon extremely stringent conditions

after His Honour's bail order which were agreed

between the parties as being appropriate and,

Your Honour, when the Crown decided there was a

risk it took them in excess of a week to, in

effect, come before the supreme court so that if

there was a serious apprehension on the part of the

Crown that there was a basis for absconding, one

would have thought they would be on appeal seeking

some kind of stay of His Honour's order

immediately, in effect, walking across the road,

but it took many days before that occurred and when

it finally came on before Mr Justice Vincent he,

himself, was unpersuaded that there was urgency

because of the Crown's own delay in bringing the

matter on after His Honour's order.

Your Honour, we say now that looked at in May

1991, with no date in the foreseeable or immediate
future that could suggest an imminent trial date,

and it being accepted by the parties until the

affidavit sought to raise a different view by the

Crown that the trial may take up to a year, that

the likelihood, Your Honour, is that the accused

may well be in custody for four years before

verdict.

Fifthly, Your Honour, we say, for the reasons

we had identified both in Mr Shnider's affidavit

and the magistrate dealing with the matter, it

cannot be seriously contended that the preparation

of the matter by the accused is not being anything

other than very seriously hindered or impeded and

that can only have an adverse effect on the conduct

of this case which no one has accepted as anything

other than highly complex and very, very difficult.

Beljajev 32 6/5/91

So, Your Honour, it is our submission that

those circumstances, weighing very heavily on the

error of His Honour Mr Justice Marks in the failure

to apply the principles that, we submit, are

applicable in a case such as the present - indeed,

disavowing those principles - leaves us with a

situation where, in the discretion of the Court,

Your Honour, this is a case where the status quo

should be restored and that is a status quo that

prevailed when His Honour had charge of his trial

processes.

The only alternative, Your Honour, which we

would submit, if Your Honour was against us on

those matters, is to enable the special leave

application to be brought on with expedition if it

be appropriate, Your Honour, that such orders not

be made before special leave be granted. But we

would submit that it would be a gross injustice to

an accused in such circumstances to be deprived of

his liberty, having regard to the matters we have

raised before Your Honour.

HIS HONOUR:  When you speak of a special leave application

coming on speedily, I understand there is a special

leave application day in Melbourne on 7 June. Is

it desired that there should be an expedition even

before that time?

MR MERKEL:  We would seek it, Your Honour. That is another

month, in effect, of deprivation of liberty. I

think we had spoken to the Registrar to see if the

matter could be brought on. I think there was an

earlier date in Sydney - I think, next Friday, at

which special leave applications would be brought

but I think we were informed, Your Honour, that

that was an extremely full list and there was some

difficulty with bringing it on in Sydney.

Your Honour, it has been difficult. civil list in view of the rather unusual nature of We are

not quite sure whether we are in a criminal or the

the matter but we were anxious, Your Honour, that
there be some process if our application is not

granted to ensure expedition because, we would

submit, even if special leave is granted there

will, in the usual course, not be dealt with on the

special leave day, an application for a stay which

is a- substantive matter that would have to be

addressed.

HIS HONOUR:  How long would you regard the special leave

application by itself is likely to take?

MR MERKEL:  We would expect, Your Honour, it is an

application that should be able to take no more

Beljajev 33 6/5/91

than an hour. As I indicated, Your Honour, the two

issues are the issue of - - -

HIS HONOUR: That seems very unlikely, having regard to the

time now.

MR MERKEL:	Your Honour, I appreciate that but we would, in the special leave - we would seek, in view of the
time constraints, to seek to identify by, in
effect, a written submission what I have argued
before Your Honour is demonstrable error which has
vitiated His Honour's reasoning.

We are conscious of two elements, Your Honour.

We are very cognizant of saying that if

His Honour's reasoning or application of principle

to the facts showed he applied a right principle

but came to a wrong conclusion, that will not carry

us a long way on a special leave application. On

the other hand, we are cognizant of the fact that

we have to show His Honour's reasoning was attended

by sufficient doubt to warrant the grant of leave,

if principle is raised.

We have sought to raise the principle in terms

of our affidavit. We say that is not a matter on

which appellate courts have stated principle

because this is swept up in a far broader

discretion. It is much the kind in Latoudis' case,

Your Honour, where I think His Honour the

Chief Justice commented that even though

discretions are often granted in wide terms that

does not mean that criteria, in particular cases,

should not be defined and we say this is

classically a case where specific criteria should

be defined because of the importance of this

vehicle for a trial judge.

So, we say that there are two separate matters

that need to be addressed and that is why, given

the opportunity to lodge some written submissions

on the question of error by reference to material,

Your Honour, that we would hope that the

application could be one that is deal with in an

hour.

I have taken on a much higher onus today

before Your Honour, being an onus, in effect, to

show that so fundamental is the error that it

vitiates his whole - His Honour's reasoning. That

is not an onus that we would submit we have to

demonstrate on special leave.

HIS HONOUR: There are two further questions, Mr Merkel.

One is do you wish to make any submissions to me

about the authorities of this Court about the

exercise of the jurisdiction which you now invoke,

Beljajev 34 6/5/91

and the second is, if I were to accede to your

application, by what means would the accused, if

his application for special leave were refused or

if the appeal were dismissed, be able to be reduced

once more into custody?

MR MERKEL:  Can I answer the second first, Your Honour. If

Your Honour granted the application it would be on

the same terms as bail was granted by His Honour

Judge Kelly and - - -

HIS HONOUR:  It would simply be that Judge Kelly's order

would be revived.

MR MERKEL:  Yes, would stand, Your Honour, and that is an

order that both stood and was effective without

complaint and by agreement between 16 April and

24 April. If the special leave was not granted,

Your Honour, then that would automatically bring to

an end the stay or the grant of bail.

HIS HONOUR:  But I notice that at the end of his judgment,

Mr Justice Marks made an order which was

appropriate because the accused was in court, and no warrant was issued. Would it not be necessary for a warrant to be issued out of this Court if the

application which you seek to make was ultimately

unsuccessful?

MR MERKEL:  I think, Your Honour, if the accused was not in

Court, then a warrant may have to be issued.

HIS HONOUR:  What jurisdiction would this Court have to

order the issue of a warrant?

MR MERKEL:  I think, Your Honour, there are two answers I

would give Your Honour, that the warrant would be one which would be issued out of - if the special

leave were refused that would, in effect, bring to

an end the stay and that means His Honour's order

would be revoked and a warrant would issue out of	the county court, not this Court, Your Honour, and
that would be something - - -

HIS HONOUR:	Who would issue the warrant?
MR MERKEL:	I will have to consider that, Your Honour, but

there could be little doubt that if the bail was

effectively revoked the normal processes for a

warrant upon bail being revoked would apply,

Your Honour.

HIS HONOUR:  Then that is perhaps a procedural matter which

can await the ultimate view that I form on the

application.

Beljajev 35 6/5/91

MR MERKEL:  It is a procedural matter, Your Honour. Yes.

The other matter, Your Honour, is that if it

mattered we have little doubt we could get

instructions on the part of the accused,

Your Honour, to be in attendance on that

application in the same way as he was before

Mr Justice Marks.

HIS HONOUR: That raises very interesting problems about the

jurisdiction in the Australian Capital Territory.

MR MERKEL:	Yes, Your Honour.
HIS HONOUR:	However that may be, as I say, it is a

technical problem.

MR MERKEL:  I think he is on federal charges, Your Honour,

but I think they are procedural problems, but they
are federal and State charges, Your Honour, so I

think they are procedural matters that could be

dealt with.

Your Honour, in respect of the second matter,

the ability of this Court, I think Your Honour
considered this question in Chamberlain's case. I

think, Your Honour, unfortunately it may have been

one of the few cases I have left in chambers.	As I
understood Your Honour in Chamberlain's case,

Your Honour regarded it as a jurisdiction that was

discretionary and I did not understand Your Honour

to say anything that would restrict its operation

as a matter of discretion if the circumstances of
the case were appropriate for the grant of bail
pending appeal, in a case particularly where there

was not a conviction or jury verdict, which I think

Your Honour had indicated would be vested with some

qualified effect.

HIS HONOUR:  The difficulty that you face is that I did say

this, in Chamberlain's case:

that in my opinion the power of this Court to

grant bail rests upon the inherent power to
preserve from futility the exercise of the

Court's jurisdiction to grant special leave to

appeal and to allow an appeal thereafter.

MR MERKEL:  We would, with respect, Your Honour, respond

that the power to grant bail or order a stay is not

limited to absolute futility. We would submit, for

the reasons I have indicated earlier, that,

particularly in the exercise of the jurisdiction in

respect of the criminal justice system, if the

Court concluded that the grant of bail was

necessary to avoid a gross injustice or to preserve

the integrity of the system itself and there was a

degree of futility, maybe not absolute futility, or

Beljajev 36 6/5/91

that in all the circumstances of the case was
warranted, then we would submit that it is within

the discretion of the Court to make such an order.

Your Honour did indicate futility, and we

would submit that there is, in the matters we have

set out, irreparable harm that could not be

adjusted or dealt with if the appeal was

successful, and that is why we have tried to set it

out in paragraph 47. It is really, in our

submission, a matter of what is the correct status

quo in. such circumstances. So we would submit that

futility is an obvious case but we would submit

that it would be inappropriate for the Court to

fetter its discretion to grant bail in any

appropriate case and that futility should not be a

condition precedent. It should be an important

matter, as should injustice, as should any other

matters that bear upon the discretion.

It is difficult in this particular

jurisdiction, that is the criminal jurisdiction,

certainly in respect of stays. In civil matters

there is a far broader discretion to do what is

appropriate in all the circumstances of the case,

and we would submit that it would be odd if, merely

because the matter arose in the criminal

jurisdiction of the Court rather than the civil,

that there was a more fettered approach or an

approach which left the Court less able rather than

more able, because the Court is dealing with the

liberty of the subject.

With Chamberlain's case I can appreciate the force of what Your Honour had said in respect of,

in effect, an appeal after conviction, but this is

an appeal in respect of the interlocutory processes

to order a fair trial, and we would submit that in

such circumstances a stay or the granting of bail

should have a broader base than just absolute
futility.	We note Your Honour did not say absolute

futility, although Your Honour may have meant it.

We say that there is a futility here, Your Honour.

HIS HONOUR:  Futility is very difficult to provide a

graduation for.

MR MERKEL:  Yes. Well, Your Honour, aspects are futile and

others are not, but it will not destroy the

subject- matter of the appeal. In that sense,

Your Honour, we cannot meet that standard.	But we
say that the standard should not be that
restricted.

HIS HONOUR:  Yes.

MR MERKEL: If Your Honour pleases.

Beljajev 37 6/5/91

HIS HONOUR:  Mr Charles, it would be advantageous for me to

have your submissions with respect to the criterion

on which I might exercise my jurisdiction, and it

is only if you should fail on that aspect that I

would want to hear you on the others.

MR CHARLES:  I am indebted to Your Honour, because

Your Honour will appreciate that most of the facts

which have been asserted here at the bar table,

including - and none of them have been asserted as

agreed between the parties - are very hotly

contested, not agreed at all on this side. If I am

forced to deal, point by point, with the

allegations of fact made by my friend we will be

here for, I regret, Your Honour, some time.

HIS HONOUR:  Well, time is no object, but we can get

perhaps to the issues that fall for determination

more quickly in the way I have suggested.

MR CHARLES:  Yes, Your Honour. So far as the criteria on

which the Court's discretion should be exercised,

or the Court's jurisdiction, may I put this to

Your Honour, that I take that to mean, firstly,

that I should submit to the Court what we put as

the situation in relation to the applicant's right

of appeal to the Full Court of Victoria- - -

HIS HONOUR:	I had in mind, first the approach that should be made by this Court in considering whether or not
the making of an order is appropriate in whichever form, namely for the grant of bail or the staying of an order, when the effect is to release on bail
a person awaiting trial.

MR CHARLES:  Yes. Your Honour, as to that, what we will

submit shortly is that the basis upon which this

Court has exercised its jurisdiction in the past is

one which is based upon the Court's entitlement to

prevent an application for special leave being

what we will wish to submit, Your Honour, in short,	rendered futile by the failure to grant a stay, and	is that the application in effect here is an
application for the ultimate relief that is sought
if the appeal should succeed, which is for bail.
That is the nature of the application that is being
made to the Court.

We will submit, Your Honour, that all of the

facts would demonstrate that there is no futility

which would follow from the application being

rejected and we will, if appropriate, Your Honour,

move from that to submit that in any event the

applicant has a right of appeal to the Full Court,

and secondly did not seek, either b~fore

Mr Justice Marks or the Full Court, for a stay of

the order made by Mr Justice Marks, matters,

Beljajev 38 6/5/91

Your Honour, which we would submit are relevant to

the question of whether the Court's discretion

should be exercised.

The third matter, Your Honour, we would put is that so far as the bounds of convenience is

concerned, there is no case made that the applicant

should succeed on this application today. We would
submit, Your Honour, that if any case is made out,

it is a case for having the application for special

leave heard as soon as is convenient to the Court;

a course with which we would raise no objection at

all, subject to putting to the Court that the

appropriate place for any application for leave is

to the Full Court of Victoria.

HIS HONOUR:	Yes.
MR CHARLES:	Your Honour, if I may develop those and, if I

could start by dealing firstly with some questions

of the balance of convenience. May I put five

points to Your Honour that have not really emerged

from the case that has been made? The first, is

that Your Honour should know that at all times

since the committal the applicant has had copies of
the tapes and transcripts of what appears on the

tapes - of all the tapes upon which the Crown

intends to rely. The bulk of them, Your Honour,

have been held since the committal and when, during

the committal, the Crown's case changed somewhat,

then copies of those original tapes and transcripts

of what was said were provided, so that, in so far

as the case is based upon wanting to know what the

Crown's evidence is, that material has been, at

least in the form of· copies of tapes and
transcripts of them, available to the accused.

Now, Your Honour, there is no suggestion of delay by the Crown up to the time beginning

23 November last year. The third point,

Your Honour, is that the Crown has repeatedly asked

Judge Kelly to fix the time when the trial is

supposed to commence so that an appropriate

calendar can be achieved and His Honour the trial

judge has always, up to this time, refused to make

any such order. These points deal with on the

balance of convenience and the questions of delay,

Your Honour.

The next point is that in so far as any

suggestion might be made that the Crown has delayed

the starting date, the application for separate trials was not made by the applicant here until

March of this year. The application for separate

trials was not made until March this _year,

notwithstanding repeated invitations having been

made by the Crown to the various accused: if you

Beljajev 39 6/5/91

want to make any such application, do it early -

not until March of this year was any such

application made. And lastly, Your Honour, and

vitally, on the question of the balance of

convenience, Your Honour may draw some conclusions

as to the bona fides with which these various

applications had been made, on behalf of the

applicant, by virtue of this fact: only after bail

had been granted did the accused finally agree to accept, as an adequate performance of the Crown's

obligations in relation to supply of this tape
material, the supply of VHS copies of all of the

various tapes which the applicant has been seeking.

HIS HONOUR: 

When did the applicant first receive the copies

of the tapes which were those that he sought to
rely on rather than those which the Crown sought to

rely on?

MR CHARLES: 

May I seek instructions on that, Your Honour?

HIS HONOUR: 

Yes.

MR CHARLES: 

Your Honour, the VHS copies were made available in March of this year - I am told at the end of

March - and in circumstances where, until that

time, they had been offered by the Crown and the

offer had been rejected by the applicant as being

inadequate for the applicant's purposes. The

request has been made,  "No, we want the

originals."  Once bail had been obtained, the offer

of the VHS tapes as copies of the originals was
accepted and they are now being used, I am

instructed, by the applicant and they are able to

be used by the applicant in his gaol cell at any

time he wants to use them.  I am corrected,

Your Honour, final delivery of these VHS copies was

made on 12 April and they are able -

HIS HONOUR: That is the last consignment, as it were, that

he got?

MR CHARLES:  Yes. I am sorry, Your Honour, I am told that

what happened was that the applicant refused to

accept these tapes before this time.

HIS HONOUR: Before 12 April?

MR CHARLES:  Before 12 April. They were then made available

and they are now able to be used by the applicant

at any time in his cell. He has, I am instructed,

available to him a VHS cassette recorder and is

therefore able to have at any time the originals by

virtue of these VHS copies and they have been

accepted as an appropriate compliance. In other

words, Your Honour, in so far as the balance of

convenience is concerned, the very matter which was

Beljajev 40 6/5/91

the subject of this heated application to

Judge Kelly is no longer in issue.	The material is
there.

Now, Your Honour, so far as the various matters - and I am looking at the question of

futility - that are raised in this last affidavit

of Mr Shnider, it is asserted on the first page, in

paragraph 2(a) that "the Brief is extensive'' .	We
would concede that, but:

It is not possible for the Applicant to have

the Brief in gaol.

Now, Your Honour, we have only heard of this

suggestion in Court this morning. I am instructed

that it was never canvassed before either

Judge Kelly or Mr Justice Marks. Our understanding

is that there is room for a very substantial

proportion, if not necessarily all, of the material

in gaol in the applicant's cell and that

arrangements can be made if necessary - we have

only, in the time available to us, been able to
make a very short call to the gaol authorities, but
we are instructed that arrangements can be made for

storage of other parts of the brief, if not

necessarily in his cell, in other parts of the gaol

so that he can have access to it in short order.

Now, Your Honour, the next matter, that:

The Applicant's legal advisors cannot confer with the Applicant on Monday mornings or after

4 pm.

We are told that it is not - that after 10.30 on

Monday mornings it is possible and that in weekends

it is also possible, but those are conditions which

apply to all prisoners in gaol and certainly not to

this applicant.

The next matter is that he: 

has only limited access to a telephone.

We are instructed that he, in fact, has wide access

to a telephone in the remand centre at any time,

and the only difficulty that might arise is if

other prisoners are using the telephone.

Next, the suggestion that he:

needs to confer with witnesses to properly

prepare his defence.

As to that, again, all persons who suffer the

difficulty of being in custody, unfortunately, have

Beljajev 41

the same disability but there is no suggestion that

his legal advisers do not have access to such

witnesses. And, as to:

the difficulties -

the last matter -

associated with the Applicant's requirement to

listen to a number of the taped conversations

as evidenced by the problems encountered since
October 1990 -

those problems no longer exist by virtue of the provision to and acceptance by the applicant of copies of all the conversations on VHS cassette

tapes. Those problems do not exist.

Now, Your Honour, the way in which the matter

was put, as I am instructed, to Judge Kelly and

Mr Justice Marks was that the Crown's default was

something which should result in a person who was

being deprived of his liberty, no longer deprived
of his liberty.

Now, I do not suggest that there were not

suggestions made of difficulties with remaining in
gaol, with the time coming up to preparation of the
case, but the main case that was being made was
along the line which I have put first to

Your Honour, and as to that we would submit that,

for the reasons which I have shortly put, on these

matters, that there can be no question of futility. If this Court were to hear the application for

special leave in, say, a months time, it could not

be suggested for a moment that there would be any

futility in the application for a stay or, in fact,

for bail being made at that time, Your Honour, and

succeeding.

May I go back, Your Honour, for a moment to

the question - it is clearly, unfortunately, a very
long time that has been spent in gaol but none the
less until late last year it was not being

suggested that the Crown was at fault in relation to that delay. The difficulty that has arisen is

something which has arisen between November 23 of

last year and February 28 of this year in
circumstances where it is a simple lack of

facilities - lack of manpower on the part of the

task force which has caused the inability to comply

with the assurances that were unquestionably given

to Judge Kelly, but assurances in circumstances

where the applicant was insisting upon listening to

the originals of these tapes and where, now, the

Beljajev 42 6/5/91

applicant has accepted as adequate compliance with

that listening to VHS copies of these tapes.

Now, Your Honour, on the question of the way

in which the Court should deal with applications of

this kind - and I ask Your Honour to simply accept

that I have not dealt with a large part of what we

say are the misstatements of fact which have been

raised by my friend - we would submit that no case,

at the very outset, has been made out as a matter
of discretion for the Court granting an
application, the effect of which will be not to
preserve the status quo, not to stay but to grant
bail, to grant the ultimate relief sought; no case
of futility, in our submission, has been or could

be made out in relation to this case.

The applicant has not exhausted the remedies

that were available to him before corning to this

Court because, Your Honour, even - before we have

put to the Court the argument that an appeal was

available to the Full Court, no application for a stay was made to Mr Justice Marks. And the third

matter, Your Honour, on the question of the balance of convenience: there, again, we would submit that the balance of convenience is against permitting

the applicant to have the status quo changed in his

favour.

I should draw to Your Honour's attention that

in the decision of Judge Kelly to which reference

was made of 28 September 1990, His Honour said this

at page 10 - and this, Your Honour, is the balance

of convenience:

If the allegations made against the accused

are true, there is no doubt that he possesses

the financial means, the knowledge and the

overseas acquaintance to avoid justice by

fleeing the country. Moreover, were he to be

convicted of crimes as grievous as those of

which he is charged, he must know that he can

expect no mercy. For my part, I do not

hesitate to say I regard the crimes of which

he is charged as possessing more moral obloquy

than any other crime in the criminal calendar.

Now, Your Honour, the other matter to which I

should briefly draw the Court's attention on the

question of the balance of convenience and

therefore the risk that may follow from the

applicant being set free at this point: His Honour

dealt with this in the course of argument before

His Honour's judgment in April of this year. In

argument, at page 737 of the transcript - if I may

simply put shortly one passage - His Honour said:

Beljajev 43 6/5/91

I think you can put to one side the likelihood of his escaping, the likelihood of his

committing other offences, the likelihood of

his interfering with witness; all are

something I regard as irrelevant for the

purposes of this application. Therefore,

having been established, my only concern is to

assert that the system will not permit

somebody to be deprived of their liberty by a

fault of the executive and if that has

occurred then bail, as a matter of principle,

must be granted. In that regard, I would play

in aid the maxim fiat justitia ruat coelum. I

do not care if he escapes and murders half the

population of Victoria, he is not going to be

locked up by the executive.

Now, Your Honour, if I may say so, I think I

have put shortly the arguments that we would put to the Court on the first question Your Honour invited me to address which are what we would submit are

the usual grounds upon which this Court would approach questions of matters such as a stay.

HIS HONOUR:	Are there any cases to which you would refer?
MR CHARLES:	Yes, Your Honour.  The cases upon which we

would rely in that regard - we would rely upon the

following cases:  we would rely upon Narain v

Director of Public Prosecutions, 71 ALR 248, which

is a decision of Your Honour and, Your Honour, at

pages 249 to 250, said:

The inherent jurisdiction of this court has occasionally been exercised to grant bail when

an application for special leave has been

pending in a criminal case. That jurisdiction

has been exercised when a refusal of bail

would make the pursuit of the application for

special leave futile or substantially so.

That is at the top, Your Honour, of page 250.

Again, Your Honour, in Clarkson v the Director

of Public Prosecutions, 69 ALR 286, dealt with the

old rule of the High Court and Order 70 rule 32 and Your Honour said, at page 287, in the middle of the

page, that rule:

is a rule intended to deal with the very

exceptional case where it is appropriate to
grant bail for the purpose of preserving the

substance of the right to appeal or to seek

special leave to appeal in a criminal matter.

This is not such a case. This application, if

granted, would lead to the making of an order

for bail that would give the applicant the

Beljajev 44 6/5/91

very relief which he was refused by the order

which he seeks to canvass on appeal.

Next, Your Honour, there is a third decision

of Your Honour's in Chamberlain v Reg, 153 CLR 514,
and Your Honour dealt there with these questions,

at page 518 about point 4, in these terms:

The power to grant bail has, on some few

occasions, been exercised in the past and

neither counsel denied the existence of the

power to grant bail pending an application for

special leave. I should say, however, that in

my opinion the power of this Court to grant

bail rests upon the inherent power to preserve

from futility the exercise of the Court's

jurisdiction to grant special leave to appeal

and to allow an appeal thereafter.

That has been said to be a power which will be

exercised only in very exceptional circumstances.

That is at the top of the next page, Your Honour.

We would rely also, Your Honour, on what the present Chief Justice said in Re Marks and

Federated Ironworkers' Association, 34 ALR 208.

The Court may recall it was the Omega Navigation

Station case and the gist of the decision, Your

Honour, was that the Court has an inherent

jurisdiction to grant a stay of proceedings to

preserve the subject-matter of the litigation.

MR CHARLES:  Your Honour, in _this short conspectus, there

might be two other cases to which we would make

references. One would be Marconi's Wireless

Telegraph Co Ltd v The Commonwealth, 16 CLR 385

and, lastly, Your Honour, we would refer to Tait v

Reg, 108 CLR 620 and, in particular, Your Honour,
in that critical case, the statement made by

Sir Owen Dixon at page 623, the Chief Justice then

saying: 

I have never had any doubt that the incidental powers of the Court can preserve any subject

matter, human or not, pending a decision.

Your Honour, I should add a reference to

another decision of Your Honour's in Edelsten v

Ward (No 2), 63 ALJR 346. Your Honour said this,

in the right-hand column of page 346F:

The present application is made pursuant

to the inherent jurisdiction of this Court to
preserve the subject matter of litigation

pending the making of an application for

special leave to appeal to this Court. That

Beljajev 45 6/5/91

is a jurisdiction which, as has been

repeatedly pointed out, is an exceptional

jurisdiction. It is one which can only be

exercised in extraordinary circumstances. It

is as well to emphasise that observation again

lest the impression be created that, in the
conduct of litigation, the orders of this

Court are available to keep matters in statu

quo until the litigation is finally resolved.

That is not the purpose of the inherent

jurisdiction. Something quite exceptional

must be shown before that jurisdiction is

exercised.

Now, Your Honour, of course, my friends do not

want the status quo maintained, they want to uproot

the status quo, to go back to an earlier situation

before Mr Justice Marks' decision was arrived at.

No application was made to Mr Justice Marks for a

stay. We would submit that His Honour's decision

is entirely supportable and does not show error

when properly viewed against the much wider facts

that His Honour had available to him than my friend

has made reference to, even in his quite lengthy

elaboration of one side of the facts this morning.

Now, Your Honour, for those reasons, on the

first part of the argument, we would submit that on

no view could this case be one calling for the

exercise of the Court's discretion. I have not

dealt with the other parts of the - - -

HIS HONOUR: No, I appreciate that. It seems to me, from

the point of view of the application presently

being made to me, this is the major hurdle which

the applicant has to overcome. I will look at

these cases during the luncheon adjournment,

Mr Charles, but are there any further cases that I

should look at?

MR CHARLES:  No, Your Honour. If I may say so, one part of

the argument to which reference really ought be

made before Your Honour retires for lunch to look

at the cases is that an aspect of whether this

Court should exercise any such jurisdiction would,

in our submission, be the question whether a right

of appeal has been availed of.

HIS HONOUR: This is the question under section 10 of the

Supreme Ccurt Act?

MR CHARLES: Yes, Your Honour.

HIS HONOUR: That would require, however, a determination,

however provisional, by me as to the likelihood or

your argument succeeding on that. I am thinking of

a more preliminary point at this stage.

Beljajev 46 6/5/91

MR CHARLES:	Yes.
HIS HONOUR:	I appreciate that there may be arguments both

ways on that which, for my part, I would be

disinclined to form a view upon in advance of a

view that will have to be formed, perhaps, by those

who constitute the Court on the application for

special leave.

MR CHARLES:  Yes. Your Honour, for those reasons, on the

first part, we submit that this is a highly

inappropriate case for the Court to contemplate

exerci'sing any such discretion or dealing with any

such application as this one presently calls for.

If it were to succeed, Your Honours would face a

multitude of applications for bail from all sorts of persons at a variety of stages in the criminal process.

HIS HONOUR:  Mr Charles, it is perhaps unfair to you to ask

you to split your argument, but as this seems to me

to be the basic question which I have to address,

if you have no objection, I would call upon

Mr Merkel at this stage to reply to that aspect of

it so that I can consider during the luncheon

adjournment what I should do about that approach.

MR CHARLES: If the Court pleases.

HIS HONOUR:  Mr Merkel, you understand the basis on which I

am - - -?

MR MERKEL:  Yes, Your Honour. Can I deal with the

jurisdiction, Your Honour, to either stay or grant

bail?

HIS HONOUR:	Yes.
MR MERKEL:	We would say, Your Honour, that it is hard to

accept that a different test would apply because

both jurisdictions are, in effect, discretionary in

the Court to secure the same object and therefore

it would be odd if different principles applied.

Your Honour has certainly approached it in

that way in Chamberlain when Your Honour looked at

the principle to grant bail by reference to stay decisions such as that that arose in Reg v Marks

when Mr Justice Mason, as he then was, came to

consider these matters.

My learned friend's first submission was that this is a jurisdiction to be exercised to, in

effect, prevent an appeal from being rendered

nugatory. When Your Honour, in those cases my

learned friend relied upon, referred to "futility"

or "substantial futility", we would submit and take

Beljajev 47 6/5/91

it that that really is interchangeable with the

notion of not having an appeal rendered nugatory.

We say it is the same concept in principle.

Your Honour, we would submit that that principle is not one that one would take exception

with.	The question is what have the courts meant
when they have said that.	And, here again,

Your Honour, we do not see any relevant distinction

between the objects sought to be secured as seem to

be acknowledged by Sir Owen Dixon in Tait's case.

Whether one is talking with liberty of the subject

or the existence of the body or of property, whilst

discretions will vary, the enunciation of principle

to preserve the subject-matter or to prevent an

appeal being rendered nugatory are the same and

what was meant by that was discussed by

Mr Justice Dawson in The Commissioner of Taxation v

The Myer Emporium, (1986) 160 CLR 220. His Honour

discussed the principles by reference to where a

stay will be exercised pending appeal and, in

particular, at pages 222 to 223, His Honour said,

at the bottom of page 222:

It is well established by authority that the

discretion which it confers -

this is under Order 70 -

to order a stay of proceedings is only to be

exercised where special circumstances exist

which justify departure from the ordinary rule

that a successful litigant is entitled to the

fruits of his litigation pending the

determination of any appeal. Special
circumstances justifying a stay will exist

where it is necessary to prevent the appeal,

if successful, from being nugatory. Generally

that will occur when, because of the

respondent's financial state, there is no

reasonable prospect of recovering moneys paid

pursuant to the judgment at first instance.

And it is the next line that we rely upon and it is

a line taken from McBride v Sandland, Your Honour,

which is a decision of this Court back in 1918. However, special circumstances are not limited

to that situation and will, I think, exist

where for whatever re~son, there is a real

risk that it will not be possible for a

successful appellant to be restored

substantially to his former position if the

judgment against him is executed.

Now, Your Honour, what we would. submit is

meant by "futility rendered nugatory" is the

Beljajev 48 6/5/91

inability of the appellate court to restore the

successful appellant substantially to the position

he would have been in had he not had that judgment

appealed from executed. We say it is that which

was addressed by us in the last paragraph of the

affidavit and it is that, going to the liberty of

the subject and the injustice, that that gives rise

to in the present case that says there will not be

a restoration to that position.

We say that is what is intended by that

concept. We say, Your Honour, that absolute

futility is really not the correct way to approach

it. As Your Honour put: there are not grades of

it. But we say that is really what was meant by His Honour as to "nugatory" in Myer Emporium and His Honour found a very real and substantial base

for that in Sandland's case.

So, we submit, that is how it is to be

approached and we would submit that, a fortiori,

when the liberty of the subject is involved, it is

that test rather than just reliance on will the

subject-matter be destroyed totally that is to be

had regard to.

Your Honour, in Chamberlain's case we say that

Your Honour was dealing with a very different

situation to the present. Indeed, the cases

Your Honour was referring to - any of the other

cases where bail is sought, that is after

conviction on a jury verdict. There is a finality

about that which does not attend the present case

at all. The present case is concerned with

interlocutory procedures and abuse of process and

we say that the real issue is what is the correct

status quo to be examined in the present context.

So, we say that this case can be distinguished

from the kind of problem Your Honour was dealing

with in Chamberlain, although the test for a stay
is not something that we say is to be altered.	We
say that the Myer kind of approach and the Sandland's approach is the correct one.

The kind of difficulty, Your Honour, that

arises is demonstrated by what has, in fact,

occurred this morning. I have just been

instructed, Your Honour, that what has occurred -

and this is in response to the other matters my

learned friend identified about the reality of the

situation - the applicant was in attendance until

today at hearings before His Honour Judge Kelly.

Today, the applicant, at the remand centre, made a

request to the governor of the centre to be able to

listen to the tapes. Governor Beaver, at the

remand centre - and I can put this on affidavit

Beljajev 49 6/5/91

over the adjournment if we are able to, Your Honour

- indicated that he would not be able to have

access to them until the trial judge made an order

that he had access and he also indicated that even

if the trial judge made such an order, it could not

be guaranteed, it would not be provided to in his

cell but would only be provided to him in the

police interview room. There are some 239 other
prisoners who may wish to use that interview room.

Other practitioners may also wish to confer with
their clients in that interview room; and because
of those matters availability within even the

remand centre of the tapes could not be guaranteed.

Your Honour, the further matter is that the

need for the video recorders, the speakers and all

the other kinds of material would make it

impossible for those activities to be carried out

in the applicant's cell. So, that is the

situation, removing oneself back to the real world,

which explains why His Honour indicated in his

second reasons that he remains unpersuaded that the

Crown can rectify or remedy the wrong which has

been suffered by the accused in the present case.

He said, "It may be so" and "It may not be so", and

no doubt His Honour's vast wealth of experience in

this area had a consciousness and cognizance of

this very kind of problem arising.

The second matter my learned friend indicated,

Your Honour, was that the VHS tapes, which were

copies, had only been sought by us at the end of

March or April - only accepted. They did not come

into existence until the end of March. They did

not exist. They were the subject of a direction by

His Honour, and this is referred to in Mr Kirne's

affidavit in paragraph 3(p), they were only made

available to us because His Honour, in granting

bail, directed that the Crown supply us with copies

of the tapes so we could have access to them to

listen while we were on bail and that was only made

available to us on 12 April. The reason why those tapes were only for the first time able to be used

is the Crown had at least overcome the copying

problem. Until then, copying was not able to be

procured to a satisfactory standard.

So that how on earth that is put against us,

one can only speculate upon but at all events, that

has been overtaken by the events of this morning,

Your Honour, which show that yet, again, now back

in May 1991, the accused is no further advanced

than he was when he had received these original

promises that were to bring on an early trial back

in last November.

Beljajev 50 6/5/91

I should indicate, Your Honour, whilst I

accept that Your Honour has raised the question on

this first hurdle, that we do rely on those matters

and if it is sought to have that last matter which

occurred only today, being the first day he has

been able to make this request because he has been

in court on other days, Your Honour, we would do so

over the luncheon adjournment, but it does give

rise to, really, the essential cause of our

application today. If Your Honour pleases.

MR CHARLES:  Your Honour, I should mention Jennings

Construction Ltd v Burgundy Royale, 161 CLR 681,

another decision of Your Honour's.

HIS HONOUR:	Yes, I remember that.
MR CHARLES:	And Your Honour there said that there were four

matters.

HIS HONOUR:  At what page is that?

MR CHARLES: At page 681, Your Honour, and then the specific

matter was dealt with at the top of page 685.

Your Honour said:

In exercising the extraordinary

jurisdiction to stay, the following factors

are material to the exercise of this Court's

discretion. In each case when the Court is

satisfied a stay is required to preserve the

subject-matter of the litigation, it is

relevant to consider: first, whether there is

a substantial prospect that special leave to

appeal will be granted; secondly, whether the

applicant has failed to take whatever steps

are necessary to seek a stay from the court in

which the matter is pending; thirdly, whether

the grant of a stay will cause loss to the

respondent; and fourthly, where the balance of

convenience lies.

HIS HONOUR:  Yes. You have nothing to say about that, I

presume, Mr Merkel?

MR MERKEL:	No, Your Honour.
HIS HONOUR:	I think it would probably be desirable to

adjourn until 2.30 which will give me an
opportunity to look at these cases. So, we will

adjourn until 2.30 pm.

AT 12.59 PM LUNCHEON ADJOURNMENT

Beljajev	51	6/5/91
UPON RESUMING AT 2.45 PM:

HIS HONOUR:  Mr Charles, I need not trouble you further on

other aspects. I think it is appropriate for me to

decide this case without consideration of the

circumstances which might support an application

for the grant of special leave, except in so far as

it is necessary to say that I shall decide this

application upon the assumption that the case for

special leave to appeal is supportable by argument.

An indictment was presented before the County

Court in Victoria on 13 July 1990 charging the

applicant with conspiracy to import prohibited

imports contrary to section 233B(l)(cb) of the

Customs Act 1901 (Cth) on five counts; conspiracy

to traffic in a drug of dependence contrary to

section 79 of the Drugs Poisons and Controlled

Substances Act 1981 (Vic) on one count; and

trafficking in a drug of dependence contrary to

section 71(1) of that Act on seven counts.	No plea
was then, or has since, been taken to this
indictment.

The trial judge, Judge Kelly, has entertained

a number of applications with respect to the

preparation for and conduct of the trial, including

two applications for bail. On 20 September 1990

His Honour refused the first application for bail

but, after an eight day hearing of the second

application, His Honour granted bail on

11 April 1991.

His Honour was satisfied that exceptional circumstances existed which justified the grant of

bail. That is the condition governing the power of the court to grant bail, when an accused is charged

with offences of the kind appearing in the present

indictment, see section 4(2)(aa) of the Bail Act

1977 (Vic).

Pursuant to section 18A of the Bail Act the Director of Public Prosecutions for the

Commonwealth and the Director of Public

Prosecutions for Victoria then appealed to the

Supreme Court. Mr Justice Marks allowed the appeal

and ordered that the applicant, who had been

released on bail pursuant to Judge Kelly's order,

should again be committed to prison to await his

trial.

The applicant filed an application for special

leave to appeal to this Court on 2 May 1991 and the

present application seeks an order that the order

of Mr Justice Marks be stayed pending the hearing

Beljajev 52 6/5/91

by this Court of the application for special leave

to appeal. Alternatively, bail is sought pending a

hearing of the application for special leave.

The jurisdiction of this Court to make an

order either preserving the status quo pending the

hearing of an application for special leave to

appeal or to grant bail pending the hearing of such

an application has been considered in several

cases. In Chamberlain v Reg (No 1),

(1983) 153 CLR 514, at page 518, I expressed the

opinion that:

the power of this Court to grant bail rests

upon the inherent power to preserve from

futility the exercise of the Court's

jurisdiction to grant special leave to appeal

and to allow an appeal thereafter.

In Federal Commissioner of Taxation v Myer Emporium Ltd (No 1), (1986) 160 CLR 220, at

pages 222 to 223, Justice Dawson said, in reference

to an application for stay pending the hearing of

an appeal:

Special circumstances justifying a stay will

exist where it is necessary to prevent the

appeal, if successful, from being nugatory: occur when, because of the respondent's
see Wilson v Church (No 2); Klinker Knitting
Mills Pty Ltd v L'Union Fire Accident and

financial state, there is no reasonable

prospect of recovering moneys paid pursuant to

the judgment at first instance. However,

special circumstances are not limited to that

situation and will, I think, exist where for

whatever reason, there is a real risk that it

will not be possible for a successful

appellant to be restored substantially to his

former position if the judgment against him is

executed: See McBride v Sandland (No 2).

The test which His Honour there expressed is not, I

think, significantly different from the test of

futility which I had expressed in Chamberlain. Chamberlain's case was a case of an

application for bail after conviction and sentence.

This case is thus distinguishable. However, in

Narain v Director of Public Prosecutions, (1987)

71 ALR 248, I refused bail in a case in which the

applicant sought a stay of an extradition order,

saying, at page 248 that:

If the order of surrender is executed by

conveying the applicant to New Zealand, it

Beljajev 53 6/5/91

would be futile to prosecute the application

for special leave to appeal. The subject

matter of the litigation is the liability of the applicant to be conveyed compulsorily to New Zealand pursuant to the Act, and to

preserve that subject matter this court may

exercise its inherent jurisdiction to stay the

execution of this surrender order and any

warrants issued pursuant thereto: see

Jennings Construction Ltd v Burgundy Royale

Investments Pty Ltd, (1986) 61 ALR 102 at 102.

And the question there, of course, was whether or not the jurisdiction should be exercised. That case illustrates the necessity to identify the

subject-matter of the litigation in order to

determine whether a refusal of a stay order will

render futile the proceedings in this Court and

will prevent a successful appellant from being

restored substantially to his former position.

In the present case, if no order is made, will

the applicant's right to seek special leave to

appeal and, if granted, to appeal, be rendered

futile if the appellant remains in custody in

consequence of the order made by Mr Justice Marks?

I cannot think that it will. It is imperative that

the jurisdiction to grant a stay be recognized as

extraordinary and that applications seeking to

invoke that jurisdiction are not made simply in

order to secure the intervention of this Court in

the preservation of a status quo.

In Edelsten v Ward (No 2), (1988) 63 ALJR 346,

I said that the jurisdiction can be exercised only

in extraordinary circumstances and added:

It is as well to emphasise that observation

again lest the impression be created that, in the conduct of litigation, the orders of this

Court are available to keep matters in statu

quo until the litigation is finally resolved.

That is not the purpose of the inherent

jurisdiction. Something quite exceptional

must be shown before that jurisdiction is

exercised.

This must be so, particularly in the case of

interlocutory applications in a criminal

jurisdiction. That is a matter to which I referred

in Clarkson v Director of Public Prosecutions,

(1985) 69 ALR 286 at page 288 where I said:

It would be extraordinary for this court to

grant bail to a prisoner awaiting trial in the

Supreme Court of Victoria, even if an appeal on an interlocutory matter were pending here.

Beljajev 54 6/5/91

The jurisdiction of this Court is not fitted

to the supervision of interlocutory processes of a

criminal trial. It is not therefore necessary for

me to consider the strength of the application for

special leave which is now pending in this Court.

All that is necessary for me to determine is

whether the applicant's right to seek special leave

to appeal and, if granted, to appeal, would be

rendered futile if the appellant remains in custody

in consequence of the order made by

Mr Justice Marks.

It seems to me that there is one consideration to which I should especially refer and that is the

prospect of the applicant preparing for his trial.

I am conscious of the importance of the applicant

being free to prepare adequately for a trial, lest

the trial in the result be unfair. But I cannot

think that in the interim between now and the time

when the application for special leave will be

heard there is likely to be such prejudice to the

preparation of the trial that it could not be

satisfactorily provided for by some order that

might be made by the trial judge.

In those circumstances I think that the

appropriate order for me to make at this stage is

simply to refuse the application.

Gentlemen, I understand that the application

for special leave can be provided for in the

Court's calendar in the second week of the next

sittings and that if it is desired to bring the

matter on during that week, then appropriate
arrangements could be made with the Registrar. It
is, of course, subject to the work of the Court in

the matter which is being listed in the first week

of the sittings which is Mabo v State of

Queensland, a case which is set down for four days,

but I understand that that must take priority over

any other work that might be listed in the second

week. Subject to that, however, I understand that

there is time available in the second week; if need

be during the Melbourne days on which the Court

will sit in that second week in which this

application could be heard.

All that remains for me at the moment is

simply formally to dismiss the present application.

MR MERKEL: If the Court pleases.

MR CHARLES:	Your Honour, I ask for costs.
HIS HONOUR:	What do you say about that?
MR MERKEL:	Your Honour, this Court has demonstrated

reluctance in criminal matters to order that there

Beljajev 55 6/5/91

be costs and this is, in that sense and for the

purposes of that principle, Your Honour, a criminal matter and costs are not awarded in respect of bail
matters, but rather than have that dealt with

possibly at this time, that matter may be either

reserved or, in accordance with principle, no costs

should be ordered. I think there has been a

longstanding practice against ordering costs in

criminal matters and we say that practice should

apply to an application such as the present.

HIS HONOUR:	What do you say about that, Mr Charles?
MR CHARLES:	Only this, Your Honour, that on Your Honour's

decision, we have been brought here on an

application which should not have been made, which

should have awaited the normal practice of going to

the Registrar, saying we have an urgent application
for special leave, could you please bring it on as
quickly as possible, and may we make appropriate

contact with the Court if that cannot be

immediately arranged. No such procedure was

followed, no application was made to the judge for

leave, no application was made to the Full Court

for a stay, which would have indicated fast enough

whether the court took the view in Victoria that it

had jurisdiction or did not. We say it clearly does have, but that could have been tested very

quickly in Victoria. This is an application which,

in our submission, should not have been made.

MR MERKEL:	I think, Your Honour, that the principle that costs follow the event is a principle in the civil
jurisdiction, but I think our point, Your Honour, is that this is not in the civil jurisdiction; it
is a criminal matter relating to bail, relating to
an application for bail, and in those circumstances
it is most unusual for costs to be ordered. There
is certainly nothing that could be said to be
misconduct on our part, we would submit quite to
very unusual step for the Court to, in effect, the contrary, so that we would say it would be a
order costs on a bail application.
HIS HONOUR:	As this application is incidental to the

application for special leave to appeal, I think

the appropriate order to make is that the costs of today's proceedings be reserved to the Court which

is considering the application for special leave to

appeal and if it be necessary, that Court can then

remit to me further consideration of today's costs.

Otherwise that Court may, if it sees fit, deal with

the costs of today's application as it may be

advised. Court will adjourn.

AT 2.59 PM THE MATTER WAS ADJOURNED SINE DIE

Beljajev 56 6/5/91