Carrion v The Queen

[1989] HCATrans 299

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A28 of 1988

B e t w e e n -

ROY CARRION

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
TOOHEY J
GAUDRON J

McHUGH J

Carrion

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 DECEMBER 1989, AT 2.20 PM

Copyright in the High Court of Australia

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MR G. WENDLER: If the Court pleases, I appear on behalf of the

applicant. (instructed by Stephen Harry McFarlane)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my learned

friend, MRS. MILLSTEED, for the respondent.

(instructed by the Crown Solicitor for the State

of South Australia)

MR WENDLER: If the Court pleases, I invite Your Honours to a

sunnnary of contentions.

MASON CJ: Yes.

MR WENDLER: This is an application for special leave to appeal

against a refusal of leave to appeal by the Full

Court of the Supreme Court of South Australia, sitting as a Court of Criminal Appeal in private pursuant to

the rules of court created in the State of South Australia

by the judges of the Supreme Court of South Australia.

Before I address Your Honours on the merits of

this application for special leave to appeal, it is

important that I outline or describe some of the

background to this application. In November 1987

the applicant and another received an order in this

Court that they be retried in the Supreme Court of South Australia for the offence of armed robbery.

They were retried. At the end of the trial, by a

majority verdict, the applicant and another were

found guilty.

The applicant then began his struggle up through

the appeal process. He sought leave to appeal from

was heard and entertained in open court with the

a single justice of the Supreme Court of South

applicant present and represented by counsel. The

T2 application for leave to appeal was refused.

The applicant then proceeded to seek leave from

the Full Court. On page 191 of the application book,

can I invite Your Honours to the document that appears
at that page. The procedure in the State of South

Australia is that on a refusal of leave to appeal by a single justice of the supreme court, the applicant

is then entitled to seek leave from the Full Court.

The applicant executes the document contained on

page 191 of the application book.

At the bottom of that document in his handwriting

is this statement:

I wish this matter to be heard in open court

and I wish to be present.

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That was his desperate attempt at persuasion

that he attend the proceedings which concerned him.

Pursuant to the rules of court in force in the State

of South Australia, in particular rules 25 and 26,

the Full Court heard the application in private.

On page 190 of the application book is the judgment

of the Full Court of the Supreme Court of South

Australia.

Leave to appeal was refused and considered in

private. The decision was announced in open court. that the matter was coming on in court and the

decision would be announced. The applicant was not

present, the lawyers involved in the matter were not
present; in fact it may well be that other than

Their Honours and various officials in the court,

no one else was present. It may well have been a

decision given in an empty court.

On page 192 of the application book is a

document which is issued to the various organizations

or functionaries mentioned in it. The most important

functionary that receives this document concerning

the outcome of the appeal is the Director of

Correctional Services, because the Director of

Correctional Services is the custodian of the - rather

the organization that monitors the sentence of a

person convicted and sentenced to a term of imprisonment.

On the receipt of that document that department

is given notice of the outcome of the appeal.	It has
been the practice of the Supreme Court of South

Australia - rather of the Full Court of the Supreme an appeal, an order is made that the time spent in

custody pending the determination of the appeal be

taken into consideration or is not taken into

consideration as part of the sentence.	No such order
is contained on that document at page 192.	So it is

a fair inference that that requirement has never

been communicated to that particular department. The

question then becomes: what is the legal effect of
that?

The most convenient way to illustrate the nature of this order is by inviting Your Honours to two

decisions of the Supreme Court of South Australia

sitting as a Court of Criminal Appeal and I am

referring now to REG V AUSTIN, 21 SASR, and

REG V DABEK.	I invite Your Honours to both those
decisions.

MASON CJ: What are they going toshow us, these cases?

MR WENDLER:  They will highlight the importance of this order

and the nature of it concerning time running between

the date of lodging of the notice of appeal and the resolution of it.

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BRENNAN J: What are the statutory provisions?

MR WENDLER: Before I come to discuss the two decisions, it

is important that I invite Your Honours to the

statutory provisions and I submit to Your Honours

six photocopies of the relevant statutory provision

T3	in the CRIMINAL LAW CONSOLIDATION ACT.
Section 364 is the specific statutory provision, in particular section 364(3).

BRENNAN J:  Was your client ever an appellant?

MR WENDLER: In my respectful submission, technically he was

not, in the sense that he was an applicant and had

not been given leave to appeal.

BRENNAN J:  Then he did not come within 364(3)?

MR WENDLER: That depends on the construction of "appellant"

in that section.

McHUGH J:  In any event, in AUSTIN's case the Full Court said

that ordinarily they would not direct that time count

as part of any term of imprisonment after refusal of

leave by a single judge.

MR WENDLER:	Quite so, but there was no mention of that in any document which is connnunicated to the proper
organization that has the duty to monitor the period of custody, so there is no connnunication to them,
the inference is that time was not taken into
consideration.

What I am getting at is this, that once an

applicant's barrister is shut out of the proceedings,

as he is in this case, there emerges this undesirable

practice and procedure in an appellate environment.

This has occurred because the applicant was not

present and neither was his barrister.

TOOHEY J:  Mr Wendler, what material does the Full Court have

before it when it is considering an appeal from a

refusal to grant leave to appeal?

MR WENDLER:	In my respectful submission it would have the decision, if any, of a single justice who entertained
the application for leave to appeal and it would have
the document that I mentioned which appears on page 190 of the application book. They would be the
two documents that it would have in front of it. The
transcript of the proceedings, one would assume that
those matters would all be available to the Full Court
when it considers the matters in private, in the absence of the parties. But it is difficult to know, of course, because of the privacy of the proceedings.

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MASON CJ: But there would be nothing to stop an applicant

developing comprehensive written submissions in

support of an application for leave.

MR WENDLER: fu,there is nothing stopping an applicant doing

that, no. But all this applicant sought was to be

present - or at least his counsel to be present

during the determination of his rights, such as

they were. This submission is advanced because it

is an invitation - or an indirect invitation -

to Your Honours to reconsider the decision in

COULTER V REG.

MASON CJ: But why should we do that? That decision was a

decision given last year. It was a majority decision,

but we do not ordinarily reconsider decisions merely

because they happen to be majority decisions.

MR WENDLER:  I do not submit for one moment that that is the

only reason, or a reason at all, why this Court should

reconsider the decision in COULTER V REG, just because

it is a majority decision.

MASON CJ: There have been no subsequent developments that call

for a reconsideration of it.

MR WENDLER: Well, in a sense, if the Court pleases, this is a

subsequent development. Here is a situation where

there has been no order in relation to an important

matter concerning sentence.

BRENNAN J: Was any application ever made to the court for an

order concerning sentence?

MR WENDLER:  No, there was not, Your Honour, because no one was

ever notified.

BRENNAN J: Well, the notification is there. Has anybody gone

back and asked the court.

MR WENDLER:  The Full Court, in my respectful submission, by its

own decision in CARUSO V REG has cut off that

possibility.

MASON CJ: What does CARUSO say?

MR WENDLER:  Can I invite Your Honours to CARUSO V REG,

49 SASR at page 465. The short answer to Your Honour

the Chief Justice's question is that in CARUSO V REG

it was held that once, in effect, the document on

page 192 of the application book has been executed,

the appeal is finally disposed of. In other words,

there was no jurisdiction, according to CARUSO V REG,
to reagitate or reopen any matter, and this is a

matter intimiately involved with the application for

leave, to appeal because -

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MASON CJ:  But it is not a question of reagitation, is it,

because on your submission it is a matter that was

not considered by the Court of Criminal Appeal?

MR WENDLER: That is because of this, in my respectful

submission, undesirable practice not to inform the

parties that a decision would be handed down and

then the applicant can be protected by his lawyers.

MASON CJ:  But whether it be undesirable or not, it is not

a matter to which the Court of Criminal Appeal has

given attention in the present case. Therefore,

to apply to the Court of Criminal Appeal now would

not involve any reagitation of something that it

has turned its attention to.

MR WENDLER:  Your Honour would be correct if - but only if

there is jurisdiction to consider that matter. In

my respectful submission, on the authority of

CARUSO V REG, that has been cut off.

MASON CJ: Where is it so said in CARUSO V REG?

MR WENDLER:  If the Court pleases, page 477 is the most

convenient starting point and I am referring now to

the learned President's decision, Justice White,

with whom the other members of the court agreed on

this topic. I, in fact, was counsel in that case

and I tried to reopen a matter by using the civil

appeal rules, coupled with the authority already
contained in the CRIMINAL LAW CONSOLIDATION ACT. Well,

the court held that that was not a possibility, so
then the court went to decide the nature of rules 34,

35 and 36 of the Criminal Appeal Rules.

His Honour Justice White sets out those rules

at page 478 and at point 7 His Honour says:

Notwithstanding such compliance with

the Rules, the question remains whether

the appeal process in the Court of Criminal

Appeal is beyond recall so that there is no jurisdiction to correct an injustice if one subsequently appears.

Now, this may be an injustice and it has subsequently

appeared. But the tenor of the Full Court's decision

in CARUSO was that so important is it to identify the

finality of a proceeding, that once the appropriate documentation has been executed, that is the end of

it.

BRENNAN J:  Mr Wendler, it has not thus far been demonstrated

either that your client has been at any relevant time

an appellant or has been specially treated as an

appellant under section 364 or that the power of the

court under section 364(3) is a power which is capable

of ever being involved in an appeal or that the

jurisdiction of the court under section 364, distinct

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from its appellate jurisdiction, has ever been

invoked.

MR WENDLER:  I will confront each of those matters now.

It is appropriate that I begin this way: it is an

agreed fact between the parties in this application

that when the applicant was incarcerated he was

specially treated. It is an agreed fact between

myself and the learned Solicitor in relation to that

issue. That is as a result of the inquiries made

by his department with the correctional services

people in South Australia as to the applicant's status

when he was incarcerated between the period of the

lodging of the appeal and the determination of it.

However, it is also an agreed fact that for

practical purposes the applicant lost no time in

relation to his appeal; no time off his sentence

in relation to the appeal activated by him.

MASON CJ:  You keep on using the word "appeal". Do you mean

application for leave to appeal?

MR WENDLER: Application for leave to appeal, I beg your pardon.

They are agreed facts in this -

BRENNAN J: What do you mean, he "lost no time"? What does

that mean?

MR WENDLER: Well, in the sense that the time between the

application for leave to appeal and the determination

of the application for leave to appeal - that was not,

as it were, added on to his - - -

BRENNAN J:  Was it counted as part of his sentence?

MR WENDLER: That is right. However, the failure to mention

that in any formal legal document has certain

ramifications and they are best illustrated in

REG V AUSTIN. And it is important that I identify -

I would invite Your Honours to this paragraph on

TS	page 320. It is REG V AUSTIN, 21 SASR 320. The	last paragraph mentions section 364(3), the section
we are dealing with in the CRIMINAL LAW CONSOLIDATION
ACT.

In this matter, that is REG V AUSTIN, Austin

applied· for leave to appeal against his sentence and

his conviction, both of which were refused. That

paragraph at page 320 appears to be treating the

applicant, Austin, as having some connection with

section 364(3) even though his status was that of an

applicant and not an appellant. The last three lines
are extremely important and they reflect upon this

application. This is the Full Court of the Supreme

Court of South Australia, in a joint judgment, stating:

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We therefore gave the direction lest our

failure to do so might be taken as an

assumption on our part that he had

received special treatment and that his
sentence should date from the refusal of

the application for leave to appeal.

So, AUSTIN's case at least is authority for the

importance of making some such order so that

order is communicated to the proper authorities,

and the court there appears to be treating AUSTIN

as coming within the ambit of section 364(3).

TOOHEY J: Is that what it says or is it concerned to

dispel that assumption?

MR WENDLER:  That order could only have been made

pursuant to section 364(3). I mean, if the Court

pleases, Austin was an applicant. The order had

to come from somewhere. Once again, I use this

submission, in a sense, as a lever or as a partial

justification, an attempt, to reopen COULTER V REG.

The principles concerning precedent are not

so strictly adhered to when the liberty of the subject is at stake. That is why I am inviting

Your Honours to reconsider the decision of

COULTER V REG. This particular application is

at least a vehicle which demonstrates some of the

practices that are evolving in the State of South

Australia as a result of secret or private hearings in an application for leave to appeal.

Indeed, it is easy to surmise that there are

other reasons why at least the party should be
notified as to when the decision will be given in
open court as to the result of the application for
leave to appeal. His counsel may have wanted to

make an application for bail; his counsel may have

wanted to scrutinize the judgment to see if it was

correct, to identify that the judgment was, in fact,

a judgment concerning the applicant. These are other

reasons.

If the Court pleases, I am not sure whether I

can pursue it much further. I have identified

at least some of the reasons why, in my respectful

submission, COULTER V REG should be reconsidered.

If the Court pleases, I do not have anything more to

say unless there is anything else Your Honours

want me to say.

MASON CJ: Yes.

MR WENDLER: If the Court pleases.

MASON CJ: The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 2.45 PM SHORT ADJOURNMENT

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UPON RESUMING AT 2.53 PM:

MASON CJ:  The Court need not trouble you, Mr Solicitor.

MR DOYLE: If Your Honour pleases.

MASON CJ:  We see no reason to reconsider the decision of

this Court in COULTER V REG decided as recently as

last year. No other matter warranting the grant of

special leave to appeal has been argued in support

of the application. The application is therefore

refused.

The Court will adjourn until 9.15 am tomorrow.

AT 2.54 PM THE MATTER WAS ADJOURNED SINE DIE

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