Boehm & Anor v Director of Public Prosecutions (Vic)

[1989] HCATrans 281

..

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• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M45 of 1989

B e t w e e n -

NORBET BOEHM and WALTER STEIGER

Applicants

and

THE DIRECTOR OF PUBLIC PROSECUTIONS
FOR THE STATE OF VICTORIA and THE

JUDGES OF THE COUNTY COURT OF VICTORIA

Respondents

Application for special

leave to appeal

MASON CJ DAWSON J TOOHEY J

Boehm

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 NOVEMBER 1989, AT 12.24 PM

Co9yright in the High Court of Australia

MlT8/l/PLC 1 17/11/89

MR W.B. WOINARSKI, QC:  May it please the Court, I appear

with my learned friend, MR D.N. GALBALLY, on
behalf of the applicants. (instructed by

Galbally & O'Bryan)

MR L. W. FLANAGAN, g~ :  May_ it please the Cour:t, I appear with ray

learned friend, MR N.B. MAGUIRE, on behalf of the first-named

re!!pOildent::- - ( instruct&!' by Director of Public Prosecutions)

MR WOINARSKI:  If the Court pleases, although we realize

it is not essential, we have prepared a very brief

outline of our argument and perhaps if we may

hand up copies of those to the members of the Bench.

MASON CJ:	Thank you.
MR WOINARSKI:	May it please Your Honours, this matter

concerns, in effect, the jurisdiction of the

Full Court of Victoria. In particular, it concerns the interpretation of sections 10, 11 and 14;

particularly section 14(3) of the SUPREME COURT

ACT 1986 and, in particular, we are looking at

the difference that may exist between

section ll(l)(a) of the SUPREME COURT ACT 1986

and section 14(3) of the SUPREME COURT ACT, and

those sections are set out, if the Court pleases, in.

the application book in the judgment of our

Full Court at page 49 of the application book.

Now, Your Honours, the matter arises out of an application made initially in the county

court to permanently stay a proceeding as an abuse

of process and we acknowledge, Your Honours, that

this Court has recently delivered a comprehensive

judgment concerning abuse of process, namely, in

JAGO delivered on 12 October of this year. Let

us make it clear, Your Honours, that our special

leave points do not relate to the decision of this

Court in JAGO. Our matters of what this application

is about relates to the question of the

interpretation of our SUPREME COURT ACT.

MASON CJ: Yes, I follow that but ultimately does not JAGO

make it highly unlikely that you would succeed

in securing a stay of this prosecution?

MR WOINARSKI: Well, Your Honour, it may be that that is

so but we say that is not a bar to the application
for special leave because we, just standing here,
can think of a number of applications for spec.:.al

leave which could be said to have been unmeri:orious

in similar circumstances and I think in the c:i'.n:se

of argument in HE KAW TEH the Court put to

counsel for the applicant that it was unlikely

that a jury would acquit the applicant in that

case and, in fact, the jury went on to acquit. ZECEVIC is a similar case, just off the top of

my head, which could be described as unmeritorious

MlTS/2/PLC	2	17/1'
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and in WARD which is another case that comes to

mind which concerned the position of the border of New South Wales and Victoria and Your Honour

Justice Dawson will no doubt remember the case,

counsel appearing for the applicant in that case

conceded to the Court on the application for

special leave that the defence that had been put

at the trial of WARD really had little if any

chance of success. So, the mere fact that it may

be that what Your Honour the Chief Justice says

has some weight behind it, in our submission, is

not sufficient to say that is the end of the matter.

MASON CJ:  But quite obviously there are great difficulties

in our predicting what a jury might do in relation

to evidence but the same difficulties do not obtain in assessing whether, on material before us, a case for a stay has been made out.

MR WOINARSKI: Well, Your Honour, we are not here to argue

that and, indeed, the Full Court never heard

the argument on that and, of course, the Court has

got no assistance in that regard and that is why

the order that we seek in the end if we are
successful in this appeal is to have the matter
remitted to the Full Court so that that matter
can be properly determined. Now, of course, that
matter would then be determined on the principles

of JAGO which this Court has, of course, decided

subsequent to the Full Court's decision. That

would, let us put it this way, probably be an

end to the matter so far as any further pursuit

of the abuse argument is concerned but it still

would then at the same time decide what is, in our

submission, a very real need to determine what the

meaning of sections ll(l)(a) and section 14(3) of

the Act are.

MASON CJ: Yes, I can follow that. All I am putting to you

is that there seems little point in our taking

that question on if, at the end of the road that

you are pursuing, failure is an obvious outcome.

MR WOINARSKI:  Your Honour, we do not concede that failure

is an obvious outcome. It may be, on the benefit

of what this Court has at the present time, that

the chances of its success do not appear high but

we say that is a matter that should be properly

determined on all the evidence when it is presented

properly or on the material when it is argued properly

before the Full Court. Now, we are not seeking to do

that before this Court and it is open, in our
submission, if one looks at the judgment of

Mr Justice Ormiston, to argue that he has misconceived

some of the factual matters there and to change, we

say significantly, some of the ways in which the

JAGO principles,as they have now been laid down, could be applied to the facts.

MlT8/3/PLC	3	17/11/89
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MASON CJ: Anyhow, let us hear what you have to say.

MR WOINARSKI: Certainly, Your Honour.

TOOHEY J: Could I just ask you this, Mr Woinarski: if

you make good the argument in relation to
jurisdiction - well, perhaps, if you fail to make

it good, it appears to be said that if your client

proceeds to trial and is convicted that there could
be no appeal which would raise for consideration

the question of abuse of process.

MR WOINARSKI: Well, that is the very point that we

say is why this application should be granted

because we say that the Full Court - if I can put

it very simply, Your Honour - and Your Honour

really has taken us to the very nub of what this

application is about. We say that if the applicants

are convicted there never can be an appellate review

of the abuse of process application and therefore
the applicants are denied the proper protection

of that appellate process because once there has

been a trial you cannot really redetermine whether

or not the trial should have occurred in the first

place.

TOOHEY J: That was not the view taken by the Full Court,

was it?

MR WOINARSKI:  No, it was not, Your Honour, and we say that

is where their fundamental error arises, that that

really is the very - - -

TOOHEY J:  I did not mean to divert you from your sequence

of argument, I just wanted to understand the

point at which it might ultimately reach.

MR WOINARSKI:  Yes. Perhaps we can say this in reaching

that, Your Honours, is this, that normally, it

is submitted on our behalf with the greatest of

respect, that an accused person has little if any

control over the course of his destiny once he has

in fact been charged with a criminal process. The

abuse of process application, we submit, is an

exception to that general rule and the decision of
the Full Court has the effect that the accused is
denied the proper protection of the appellate process
of the supreme court when he seeks to have some

control over his destiny and applies to have the

presentment stayed as an abuse of process.

If the decision of our Full Court is allowed

to remain an accused will never, we submit, have

the opportunity to have a refusal to stay the

proceedings determined by the appellate court and,

of course we say, as has been expressed in JAGO,

I think, by Your Honour the Chief Justice, it is

in the public interest that the due administration

MlT8/4/PLC	4	17/11/89
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of justice extends to ensuring that an accused

person is entitled to a fair trial and we say

it is not in the interests of the due administration
of justice that an accused person be made to stand

trial in the circumstances where eventually it can

be said it was never going to be a fair trial and

that, of course, is the effect of the decision of the

Full Court.

Now, there are two aspects of the decision

which cause concern and the first is that which we

have already referred to, namely, the accused

person, if he proceeds to trial end, is either
acquitted or convicted - can never have the abuse
of process application properly decided by the
appellate process. The second aspect or the other

aspect that we desire to draw to the Court's attention

is this: that whilst denying the accused the

full protection of the appellate process, the

decision has held that the Director of Public
Prosecutions does have a right to appeal in the

very same circumstances where it is denied of an accused person and that can be seen very clearly

on page 63 of the application book, and if one starts

about line 3:

If the judge refuses a stay, any appeal must await verdict in the trial. If there

is an acquittal there is no appeal and no

need for one. If there is a conviction

an appeal lies under Part VI of the

CRIMES ACT. If the judge of this Court grants a stay, as no appeal against that lies under Part VI of the CRIMES ACT, an

appeal against the determination lies

under s.10(2).

And then at the very last· ·paragraph the same thing

is said in slightly different words but, again:

there will be an appeal against the

determination to stay.

Now, the court justified its decision on

its interpretation of the relevant sections, in
particular by comparing the provisions of

section 10(2) and section 14(3), and that can be

seen at pages 50 to 57 of the application book

which I will not take the Court through but the

final determination in that is to be found at

pages 56 and 57 of the application book where they

come to the view that, on page 56, the fourth-last

line from the bottom:

We consider that in s.14(3) the reference to a determination made on or in relation to a trial or proposed trial refers only

to a determtnation of that description

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from which an appeal lies under Part VI

of the CRIMES ACT. It follows that if

no appeal from a determination lies

under Part VI, s.14(3) does not operate

to exclude any appeal from the

determination given by s.10(2).

And the court then goes on further to say - and I

will not bother taking the Court to the actual

reference - that an appeal does in fact lie under

Part VI of the CRIMES ACT with respect to this

particular matter.

Now, we say the court here was being asked

to exercise not its criminal jurisdiction but its
inherent supervisory jurisdiction, and the references
are set out in our outline of argument in paragraph 2
of the outline and unless the Court is desirous

of us taking them to it we will not actually take

you to those passages because what those passages

of the supreme court. relate to relate to the supervisory jurisdiction

DAWSON J:  But the court was being asked to exercise its

inherent powers in the criminal jurisdiction, was

it not? There are lots of cases which would

establish that.

MR WOINARSKI:  With respect, Your Honour, it was being asked

to exercise its powers under order 4 and order 56
of the civil rules of the supreme court, not under
any provision relating to Part VI of the CRIMES ACT

or any provisions relating to the administration

of the criminal law. It was simply being asked

to exercise its jurisdiction to supervise an inferior
court albeit that inferior court itself was exercising

criminal jurisdiction.

DAWSON J: Well, I do not know, but section 14(3) speaks

of:

determination ..... in relation to the

trial ..... on indictment or presentment.

MR WOINARSKI:  Your Honour, section 14(3) - - -

DAWSON J: It seems to me to suggest a criminal jurisdiction.

MR WOINARSKI: Yes, Your Honour, section 14(3) is relating to

the criminal jurisdiction but the jurisdiction in
the Full Court was being asked to exercise - perhaps

I had better put that slightly different. The

jurisdiction that Mr Justice Ormiston and then

subsequently the Full Court were being asked to

exercise was not its criminal jurisdiction but its
civil jurisdiction under the rules to the supreme

court.

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DAWSON J: Perhaps it does not matter very much.

MR WOINARSKI: Well, it may have some significance,

Your Honour, because we do say it is exercising a supervisory jurisdiction and not a criminal

jurisdiction.

Now, the court then goes on,and we will refer Your Honours to pages 57 to 59 of the

application book, to say that if the trial

proceeds and there is a verdict of guilty then the accused would still have a right of appeal

under Part VI of the CRIMES ACT and the issue of

whether or not it was a fair trial can be

determined in the Court of Criminal Appeal.

Now, in our submission, that is not so

and we say so for a number of grounds. Firstly, an application to stay a presentment as an abuse

of process is an application to determine whether or not a trial should ever, in fact, occur and we

say that is something which is quite different

from, and it is wrong to equate that with, a right

to have determined whether or not a fair trial has

in fact occurred. It is to be noted in this

context that it is expected that the prosecution
will call in excess of 140 witnesses - and that

can be found at page 14 of the application book - so that one is looking at whether or not there is

going to be a very long trial or whether there is

going to be no trial at all.	It is not simply a
matter of a short trial.

The evidence that would be admissible in

the application for staying the presentment as an
abuse of process may or may not be admissible on

the trial and we would suspect that in most

cases the evidence relating to an abuse application

would not be admissible on the trial because the

issues on the trial would be very much determined

and bound by the term of the presentment and one

would not be able to lead much of the evidence,

for example, that is referred to in the judgment

of Mr Justice Ormiston in the course of the trial

of these applicants. So that it is not right to

say that you will have the same issue to determine

at the end of the day under Part VI of the CRIMES ACT.

Thirdly, the court itself - - -

TOOHEY J: Just before you leave that, Mr Woinarski. The

Court of Criminal Appeal says, on page 58 at about

line 7, in the context of having said that - perhaps

at a quick glance of Part VI - it might not appear

that an appeal could include the questions

raised on an application for a stay.	It then
goes on to say:

MlT8/7/PLC	7	17/11/89
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In the substantive sense, however, an

appeal does lie if the trial results in

a conviction because the effect of the

making or failure to make a determination

relating to the trial can be relied on by

the convicted person.

Is that spelt out of section 568 or by reference to some other provision?

MR WOINARSKI:	It is actually spelt out of section 568 of the CRIMES ACT, Your Honour, and if Your Honour
goes back to page 57, it is spelt out of the words, line 22:

or that on any ground there was a

miscarriage of justice -

so that they rely on that as giving you the

ability to say this trial should have been stayed -

perhaps I am putting that wrongly. This trial, in

the total context of what has happened, has

resulted in a miscarriage of justice.

DAWSON J: What they say about that must be right, must

it not, because the basis of a stay on grounds

of delay is that the accused cannot have a fair

trial. Now, if he does not get a fair trial

then there must be a miscarriage of justice.

MR WOINARSKI:  Your Honour, if you do not get a fair trial,

that is so, but it is not necessarily -

follows that the material upon which the trial

actually occurs will be the same material upon

which one can base the abuse application. So

that when one comes to determine the appeal
under Part VI of the CRIMES ACT you will not have

the full picture unless the court is willing to

permit one to adduce additional evidence by way

of affidavit.

DAWSON J: You will have a fuller picture, will you not?

In other words, you can demonstrate whether the

submission which was made that there should be a stay

was right or wrong by having regard to the course

of the trial.

MR WOINARSKI: · Your Honour, no, because depending upon

where the application is made. For example, if

it is a county court trial and the application

is made originally in the supreme court under

its original jurisdiction, none of the material

adduced on the application in the supreme court can ever become part of the material which will

go before the appellate court·ut1.der'Part VI of the

CRIMES ACT because that will only relate to whatever

occurred in the county court.

DAWSON J:  I am not sure that I follow that.

MlT8/8/PLC	8	17/11/89
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MR WOINARSKI: Well, Your Honour, if we assume there is a

county court trial and we, instead of applying

to the trial judge, apply directly to the supreme

a stay and he refuses it, then the trial will go	court, to a single judge of the supreme court for
ahead in the county court. Now, in the course of
the trial in the county court it is inconceivable,
we say with respect, that much of the material
relied on for the abuse of process will necessarily
be admissible in the course of the trial because it
relates to a different issue and to different
matters and, indeed, it is not hard to foresee
that a judge on the trial of the actual presentment
is going to prevent the defence from leading much
of the material, and the defence are going to be
standing there saying, "But, Your Honour, we want
to preserve our rights in the Full Court when it
comes to an appeal under Part VI and we need to
get this material on to the transcript now so it
is part of the material which forms part of the
appeal under Part VI of the CRIMES ACT" and the
trial judge undoubtedly will say, "Well, it is not
relevant to the issues. The issues are defined by the presentment, the issue between the Crown and the accused, and therefore you are not allowed to lead it."

DAWSON J:  But that same material would be admissible before

the Court of Criminal Appeal.

MR WOINARSKI: Well, only if the Full Court were to permit

it.

MASON CJ:  Why would it not if the ground is abuse of process

relating to the circumstances in which the trial

came to be held and heard?

MR WOINARSKI:	Your Honour, we cannot predict the outcome of the Full Court on such an application but you
would have to make an application to have additional
material considered by that court.

MASON CJ: Well, it may be you would but why would not the

additional material be admitted if it were relevant?

Does not one consider this in the light of the

principle that if you appeal against a final order

that permits you to raise all the challenges that

you could make to interlocutory orders that are made

during the course of the process leading up to the

final order?

MR WOINARSKI:  Your Honour, we follow that but the point is

that when one appeals under Part VI of the CRIMES ACT

one is appealing against a conviction upon a trial

that has occurred in the county court and the

material in the supreme court will not form part

of the record which is appealled against.

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MASON CJ:  But if an interlocutory order is made in the

supreme court i~ relation to a trial that is held

in the district court, why cannot the material

relevant to that be admitted on the ultimate

appeal?

MR WOINARSKI:  Your Honour, it may be that it is admitted

but there is no guarantee that it will be

admitted.

DAWSON J:  It will only be admitted if it is relevant and at the

moment it would seeo it would be relevant.

MR WOINARSKI:  Your Honour, it is one thing to say, with

respect, from here it should be admitted. Whether

or not in fact it is admitted is going to be a

different question and it may well be that it is

not admitted.

TOOHEY J: There is a sentence on page 58 which may be

somewhat ambiguous and I think it is a sentence

that I have already read aloud.

In the substantive sense, however, an

appeal does lie if the trial results in

a conviction because the effect of the
making or failure to make a determination

relating to the trial can be relied on -

but it does not go so far as to say that the decision

in relation to the application can be relied on but,

rather, the consequences of the decision that was

made.

MR WOINARSKI:	I was just going to draw the Court's attention to two other passages that have a similar effect
but just while we are on that point, the sentence
that Your Honour Justice Toohey has raised, the
sentence says:

however, an appeal does lie if the

trial results in a conviction -

and that, of course, is one of the anomalies in

this situation, that if the person has a good

argument for a stay and it is refused by a single

judge, then he has to go ahead and have a trial

and if he is acquitted then that is the end of the

matter and he has no recourse and he has never

had an opportunity to have the original decision

of the single judge tested by an appellate court.

Now, we say that is quite a significant matter.

Now, the other matter which Your Honour

Mr Justice Toohey has just been referring to

is that the court itself recognizes on page 59

and, again, on page 61 that the appeal under

Part VI, based on the abuse application, is not

in fact the same as the application made before trial

MlT8/10/PLC	10	17/11/89
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because they say on page 59, the end of the

first paragraph - it is the last sentence:

Thus on an appeal against conviction

the incorrectness of such a

determination may -

and we emphasize the words -

in substance, be relied on.

And a similar passage appears on page 61. So,

even our court, with respect, is conceding that

there is a distinction to be drawn between the

two ways in which the material upon which the

abuse is based can be used.

Now, what we say is this, if the Court pleases,

that the real question on an application to stay

the presentment as an abuse of process is, "Can the

accused receive a fair trial?" And if the answer

to that question is not in the affirmative, there
is to be no trial. In the event that the trial
proceeds and the applicants are acquitted, the
question can never be determined by the appellate
court and that is, as we have already said, of

quite some significance.

Now, on an appeal after conviction, as we

have already indicated to Your Honours in answer

to a question from Justice Toohey, the real question

is, "Can it be said there has been a miscarriage

of justice in that it was not a fair trial?" and

that is a different question to the question of

whether or not there, in fact, should be a trial.

The Full Court also relied on the decision

of MILLS AND KEAN, (1985) VR 255 and unless the Court is desirous, we do not desire to take the

Court to anything that was actually said in that

decision in the course of this application,

but we - - -

DAWSON J:  Mr Woinarski, can I just break you off there?

Your central point is that the court was not exercising a criminal jurisdiction here.

MR WOINARSKI: That is correct, Your Honour.

DAWSON J: There is a line of cases which says that where

the essential dispute is between the Crown and

a citizen and is a criminal dispute, it does not

matter what the nature of the proceeding otherwise

is, it is the criminal jurisdiction which has been

exercised.	I notice you do not refer to those
cases.	I cannot recall their names but, for instance,

where a prerogative writ is sought which is, after all,

the supervisory jurisdiction of the court, in a

MlTS/11/PLC	11	17/11/89
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criminal matter, the court will nevertheless be exercising criminal jurisdiction. And in those cases it is relevant because no appeal lies in

those cases because the appeal that is allowed

in criminal matters is restricted.

MR WOINARSKI:	Your Honour, we follow what you say there
DAWSON J:	Do you know the cases I am referring to?
MR WOINARSKI:	I am aware of some of them, Your Honour, but

there are two things we say about that. Firstly,

that the SUPREME COURT ACT has been amended

in this area quite substantially twice in the
last four or five years. The first was the

introduction of the section 42 of the 1958

SUPREME COURT ACT which is the section that was

under consideration in MILLS AND KEAN and that is

now effectively to be found in - section 42
now is effectively section 10(2) of our

SUPREME COURT ACT. It is slightly different

wording but of no significance and the other

thing, Your Honour, is that section 14(3) is a new

section that does not appear to have ever appeared

in any of the preceding SUPREME COURT ACTS.

DAWSON J: Yes, but that would not alter the general

principle.

MR WOINARSKI: Well, Your Honour, in this regard it may

but section 14(3) specifically talks about appeals

in the criminal jurisdiction arising under

Part VI of the CRIMES ACT.

DAWSON J: All I am saying to you is that the fact that the

court is exercising a supervisory jurisdiction

does not mean that it does not fall within

section 14(3).

MR WOINARSKI:  We follow what Your Honour says. Now,

Your Honour, can we just say there is a decision

of MILLS AND KEAN which-. ib..MILLS AND KEAN, if

... __r_, can very. brieflys-j\W-t:: outline. the facts:

there was an application to the trial judge to

quash the presentment as not disclosing an

offence known to law and that was refused and then
an application was ma.de to the supreme court to
appeal based on the amended section 42 of the

1958 Act, and the right of appeal was refused by

the Full Court. They said they had no jurisdiction

under section 42.

Now, what we say is that that case is not

applicable here because the question there was
whether or not the presentment disclosed an offence

known to law, not whether the factual transactions

upon which the presentment was based should give

rise to a trial of the person for a criminal offence.

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Now, what we say, with respect, Your Honour,

and with respect to what Your Honour

Mr Justice Dawson has said in particular, is

that section 14(3) is intended to ensure - not
that we cannot have an appeal here but it is

intended to ensure that trials are not delayed

during the course of running such as occurred

in IORLANO's case, 151 CLR, where a ruling was

made at the connnencement of the trial as to
whether or not a record of interview was

admissible and the trial judge ruled that it

was inadmissible and then it was taken eventually

to this Court to challenge that ruling and this

Court refused to interfere with the trial judge's

ruling and made connnents to the effect that it

was not proper to interfere with the course of

criminal trials.

TOOHEY J: The difficulty about that proposition,

Mr Woinarski, is that section 14(3) speaks of

"trial or proposed trial".

MR WOINARSKI:	Yes, Your Honour, and that, we say, takes into effect what is now available under our
CRIMES ACT to allow for pre-trial conferences
and for decisions - for an accused person to be
arraigned prior to the empanelment of the jury and for determinations to be made as to the course of the trial before the trial itself properly connnences. If the Court pleases, those are the matters we desire to raise in support of the application.
MASON CJ: Yes, Mr Flanagan? Mr Flanagan,	we propose to

adjourn in about two minutes and	we will resume
at 2 o'clock but you can start.	If you have got
an outline you can hand that in.

MR FLANAGAN:  We have prepared them and perhaps if we hand

those in - - -

MASON CJ:  You hand that in and then you can resume at

2 o'clock and we will look at the outline in the

meantime.

DAWSON J:  You might be able to tell me what the cases are that I was thinking of, after lunch, not now.

MR FLANAGAN: Yes•, Your Honour.

MASON CJ:  The Court will now adjourn and we will resume

at 2 o'clock.

AT 12.55 PM LUNCHEON ADJOURNMENT

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UPON RESUMING AT 2.11 PM:

MASON CJ: Yes, Mr Flanagan?

MR FLANAGAN: If the Court pleases. Perhaps before I

commence I should answer Mr Justice Dawson's

question. The earlier section in the Act was
interpreted to preclude an appeal from a
single judge in a criminal cause or matter and
those words were interpreted very widely to
preclude any appeal to the Full Court in a

matter of criminal origin and there were quite

a number of authorities that stated that
proposition. One was WILLIAMSON V THE DIRECTOR
OF PENAL SERVICES, (1959) VR 205; one was an
order discharging a person from custody under
the FUGITIVE OFFENDERS ACT, that was RE MARSHALL,

(1901) 27 VLR 205.

DAWSON J: What are the more recent ones?

MR FLANAGAN:  I suppose the most recent was, in terms

of the Victorian ones, KEELEY V-MR. JUSTICE BROOKING,

(1978) 143 CLR 162 at page 165. And, of course,

there is McEWEN V WALDRON, (1976) VR 495.

DAWSON J: That is the one I had in mind.

MR FLANAGAN:  I thought it perhaps was, You1· Honour.

That was a decision by a judge discharging an

order nisi calling upon a county court judge to

show cause why he should not state a case in a
COMPANIES ACT prosecution and that was held -
a whole line of authority was reviewed there

and that was held to be interpreted as a matter

of being a criminal cause or matter.

There is also to be found - and I do not want

to take the Court's time by going through all of	them, but there are many, many cases referred to	in volume 11 of Halsbury in the current edition
at paragraph 1505 and any recourse to all of the cases set out there will indicate that a very
broad view, indeed, was taken as to what was a
matter of criminal origin, a criminal cause or matter.
And, of course, basically, it was said by the
Privy Council that, "a matter is a criminal matter
if it is one, the direct outcome of which may
be the trial of the applicant and the possible
punishment from an alleged offence by a court
AMAND V HOME SECRETARY AND THE MINISI'ER OF DEFENCE claiming jurisdiction to do so." That was
OF ROYAL NETHERLANDS GOVERNMENT, (1943) AC 147.
I think perhaps that probably sufficiently
answers Your Honour's question.

DAWSON J: Yes, thank you very much.

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MR FLANAGAN: If I might go to the argument we desire to

address to the Court.

MASON CJ: Yes, we have had the opportunity of reading the

outline.

MR FLANAGAN:  Your Honours, with respect, I do not know

that there is much more I want to say other

than what I have said in that particular document

except, perhaps, to emphasize two points. Where

I have cited cases as to the reason why this is

not a case for special leave, there are four

cases referred to:  SHEPHERD V BOWEN and

REG V DAVID GARRET - the first of those two cases

are cases where different courts of criminal appeal
in different States have held that there is no
appeal prior to the conclusion of a criminal

trial against an interlocutory order in a criminal

matter. The latter two are two examples of where

appeals are provided for by legislation as is,
of course, now the situation also in England.

In terms of the question of whether this is appropriate for the grant of special leave,

I would also direct attention to what fell from

Your Honour the Chief Justice's lips earlier,

that since JAGO, when we are looking to the question
of whether an accused person can get a fair trial

purely on the basis of delay, which was the only

basis suggested here, that is a jurisdiction

which would only be exercised by the Court in the

rarest of cases or the most exceptional of cases,

as I think Your Honour the Chief Justice himself

says in JAGO, and that fact in itself, it is
suggested, is another reason why this is not an

appropriate matter for special leave because when

one looks to the actual judgment of the Court of

Criminal Appeal and if you look to the actual

judgment of the trial judge, which is set out

in the application book, it will be seen that the

matter was very - - -

MASON CJ: It is obvious that a lot of the delay was contributed

to by the applicant.

MR FLANAGAN: That is so and, indeed, there was the further

consideration that any disadvantage, if I could

use that expression, or injustice which might be

brought about from some disadvantage to him

was not as realistic in the circumstances of this

case as it might be in many another case simply because all the witnesses had given evidence on

oath fairly recently and all of the evidence was

there readily to be seen.

TOOHEY J:  Mr Flanagan, in so far as this matter touches

the question of jurisdiction, what does the

Full Court mean on page 58 when it says, about five

lines down:

MlT9/2/PLC	15	17/11/89
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In the substantive sense, however, an

appeal does lie if the trial results
in a conviction because the effect of
the making or failure to make a

determination relating to the trial

can be relied on by the convicted

person.

MR FLANAGAN:  Page 58, Your Honour?

TOOHEY J: Yes. The context is that the court had said

a little earlier that on a literal reading of

section 568(1) it might be thought that an appeal

would not lie in this sort of situation but then
goes on to say that - well, in the words that I

have just read.

MR FLANAGAN: Yes, Your Honour. Well, I think perhaps

that appears by the sort of matter that the

court refers to at page 60 where it says:

On many appeals the inquiry is

whether the quality of the trial

which resulted from all the

determinations which were or were not made on or in relation to the

trial, was such as to amount to a

miscarriage of justice.

A trial may be unfair and a

miscarriage of justice may therefore

occur as a result of determinations

made other than on the trial. A
miscarriage of justice could result

from the refusal by a judge other

than the trial judge at a pre-trial

hearing under -

the rules -

to grant an adjournment postpoining

the date for commencement of the trial.

And then they give the other illustration of

CLARKSON where the trial is commenced outside

the 18 months which is permitted from the date of committal where there has been an extension

by a judge. But, I think, with respect, what

the court is directing attention to there is that

in what might be called interlocutory orders in

criminal matters in the widest sense - a perfect

Now, it has always been the law in Victoria and	example is an application to adjourn a trial.
it has always been the practice that if a person
comes to the Court of Criminal Appeal under the provisions of Part VI and says, "the matter was not adjourned" for instance, "when I maintained there were ample grounds to adjourn it and I was
therefore forced on and wasn't able to call

M1T9/3/PLC	16	17/11/89
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witnesses" for instance, "that should have been
available to me", that in itself is an interlocutory

order along the way, quite often well before any

trial takes place and it has always been, if

properly established, a basis for appeal on the

basis that there was a miscarriage of justice.

And so it is as in the other matters that are

referred to there in the judgment, the other	sort of situations, and I do not want to be
repetitious by going through them all.

So that I suppose, basically, what we are

here does not distinguish between what discretionary power the court is exercising. The section is concerned with the right of an appeal, not with the original exercise of the power, and

saying in a nutshell is at the end of the argument

we would put it that a superior court necessarily

has power, whether that power is identified

as an inherent power or a power necessarily to

be implied from relevant statutory provisions

to control its own process and proceedings, that

the power is subject to any limitation or

restriction to be found in a statute. And we say

that section 14(3) of the SUPREME COURT ACT

is clearly intended not to limit the exercise

of that discretion at all but it is meant purely

to exclude any appeal to the Full Court from a

determination based on the exercise of such a
power when the power is exercised in relation to
the trial or proposed trial of a person on indictment

or presentment except as provided in Part VI of the

Act.

We would put it that it makes no difference

whether the determination or the decision made in relation to the proposal trial, at whatever point in the ongoing proceedings, whether before or

after the trial has commenced, it makes no difference
at all whether it was made upon an application to

exercise the inherent power of the trial judge to	ensure a fair trial or a power given by any other
statute or regulations or rules or a power of
judicial review or, indeed, the supervisory power
of the supervior court or any other power and it
is on that basis that we put it that this section
was passed.
Your Honours will see in KEAN AND MILLS, which was a 1984 decision .. - that decision was made
very shortly after the coming into existence of the
amendment that permitted, on the face of it, appeals
in interlocutory matters to the Full Court from the determinations of a single judge and in that case
I argued a number of reasons which Their Honours
refer to in the judgment as to why - there was already
an established long-standing procedure in Victoria

MlT9/4/PLC	17	17/11/89
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covering appeals from criminal matters and it was

to be found in Part VI of the Act and that if
that Act was meant to give a right of appeal in
the sort of situation that we here discussing

today, well then, the legislation would have had to go a long way further than it did and

make it very clear by very precise language

that it was varying that long-established

situation.

That jurisdiction of the court to entertain

appeals was of long standing and the section of the

Act covers the substantive and procedural or controlling trial judgment and appeal and if one examines the provisions of Part VI it will be

seen that they provide in detail for criminal

appeals and for the granting of the court when

sitting as a court of a criminal appeal a number

of powers which were directed to the proper

resolution of the appeals coming under that

part and it was submitted that if Parliament

had intended to depart from the well-known and

well-understood procedure for appeals in criminal

cases, most of the provisions which are of

long standing, very clear words would have been

needed~

Now, the court adopted that reasoning and

it refers in its judgment to a number of other

things that would have been expected to be in the

language of the section. if what was being

contended for or asserted was to be so. First,

you would have expected a provision granting a

similar right to a person tried in the county

court and it was purely fortuitous, especially

in those days, where a trial came on, whether

it was the county court or the supreme, so

depending upon where you came on would depend

upon whether you had this right of appeal.

It is to be assumed that the Parliament certainly

were not intending to draw a distinction between

persons on different types of indictments in

different places. It was also put and adopted by

the court that if the Parliament intended to grant

the kind of right which was then asserted, other

provisions would have been expected and would be

necessary as to what would happen to a jury if

a determination sought to be challenged was made

after the jury had been empanelled and it would

further have been expected that provisions dealing

with circumstances in which a trial could or should

be adjourned for the hearing of an appeal would

have been enacted especially in relation to various

complicating factors that can arise on trial. For

instance, what would happen where there was more

than accused and more than one count and the appeal

related only to one accused or to one count? It

would be necessary to make, in our submission,

MlT9/5/PLC	18	17/11/89
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special and detailed provisions as to what was

to happen to the accused who did not appeal or,

indeed, even opposed an appeal _as to counts

to which the ruling sought to be callenged did
not apply and then there were further provisions
that you would expect in relation to be made or

enacted dealing with the obligations of witnesses.

If the situation arose where a trial had to be

adjourned and pending further appeals, what do

you do with the jury and all this sort of thing.

So that it was basically put to the court

and adopted by the court that the section as

enacted was not intending to duplicate rights

of appeal. It was intended to give rights of
appeal in the sort of situations that I referred

to in the line of cases to which I directed

Mr Justice Dawson's attention, matters like

orders under the FUGITIVE OFFENDERS ACT, contempt

of court proceedings. KEELEY was a perfect

example of that where there was no provision for

an appeal from a person convicted of contempt of

court in the course of an indictment when he was

being tried for something else. In the

ministerial statements accompanying the presentation

of the bill in Parliament, all those things were

outlined.

Now, following upon that, the Victorian

legislature saw fit in 1986 to enact the amending

section which is the current section which, in our

submission, was enacted for the purpose of doing

no more than putting into statutory form. the law

as interpreted in Victoria by the Full Court and

that was plainly the reason for it and' this

Court, in our submission, should come to the

similar conclusion that where the Full Court had

so recently, in respect of an amendment which was

recent, given a decision right on the very point

with legislation following very shortly thereafter

and it is on that point, in an Act which basically was

said to be to put the law into what is fashionably

called "plain English" these days.

Now, other than those matters, I do not wish to read all of the arguments that I have addressed in the document, Your Honours.

MASON CJ:	No, we have read them.
MR FLANAGAN:	Unless there is any matter the Court wishes

to direct my attention to, that would be our

contention. If the Court pleases.

MASON CJ: Thank you, Mr Flanagan. Do you wish to reply,

Mr Woinarski?

MR WOINARSKI:  Your Honours, yes, one thing we do wish

to just say briefly is that if one does look at

MlT9/6/PLC	19	17/11/89
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McEWEN V WALDRON, one finds support, we say,

in that decision for what we were saying in

answer to Your Honour Mr Justice Dawson about

the change of legislation, that legislation

has changed quite differently and therefore

the point Your Honour raises really does not

affect our position, we say. And apart from

that we can take the matter no further,

Your Honours.

MASON CJ: Very well. The Court will take a short

adjournment in order to consider the course

it will take in this matter.

AT 2.29 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.33 PM:

MASON CJ: It is only in exceptional circumstances that

this Court grants special to appeal from

interlocutory orders in criminal proceedings.

In the circumstances of this particular

case we do not consider that the question
sought to be agitated here, namely the question of

whether the Full Court can entertain an appeal from an order refusing to stay proceedings for abuse of process is of sufficient importance

or difficulty to warrant a departure from that

rule. The application for special leave is

therefore refused.

AT 2.34 PM THE MATTER WAS ADJOURNED SINE DIE

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