Cassell v Director of Public Prosecutions

[1995] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S88 of 1995

B e t w e e n -

BARRY JOHN CASSELL

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

THE DISTRICT COURT OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 NOVEMBER 1995, AT 9.30 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   If the Court pleases, I appear for the applicant.  (instructed by Peter C. Prior & Co)

MR K. MASON, QC, Solicitor-General for New South Wales:  I appear with my learned friend, MR P.G. BERMAN, for the first respondent.  instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales)

DAWSON J:   There is a certificate from the Deputy Registrar certifying that the District Court of New South Wales, the second respondent in this matter, submits to the decision of the Court, save costs.  Yes, Mr Papayanni.

MR PAPAYANNI:   If the Court pleases.  This is a matter in which there were four informations before the lower court in relation to section 87 of the Independent Commission Against Corruption Act which is giving false evidence in a material particular.  The applicant was convicted and sentenced to eight months and he appealed to the District Court under section 122 of the Justices Act.  On that appeal, the matter came before his Honour Judge Downs, and particulars were requested of the charges which were somewhat rolled‑up charges and in relation to that certain particulars were given, but particulars were asked in relation to the material particular which the Crown did not give except to say that terms of reference of the Independent Commission Against Corruption.

When the matter came before his Honour Judge Downs, objection was taken to the indictment, relying upon John L. Pty Limited and Stanton v Abernathy - two cases.  His Honour then said that he intended to dismiss the informations and the Crown then asked for an adjournment during which time they got instructions to ask for a stated case.  So when they asked for a stated case his Honour then said it was too late.  His Honour was in error in that position.  His Honour went on then - I was not called on in relation to that matter but this is where, in effect, the Crown case went wrong because, in my submission, at that time the Crown should have asked for a stated case as to whether it was too late or not to make this application, which the Crown did not do, and which was open to them on the jurisdiction to do that.

The judge then went on to dismiss the information - the four informations - and the certificate of dismissal was obtained.  The Crown then went by certiorari, and mandamus possibly, to the Court of Appeal and they quashed the conviction.  The situation in relation to that, that it was maintained, by reason of section 146, which is set out on page 47 of the application book and which states that:

No conviction or order of a Justice ... or adjudication upon appeal of the District Court shall be removed by any order into the Supreme Court

In relation to that there had been authorities previously and those authorities are set out in the application book and in relation to Simpson’s Case which had held in England and followed certain other cases - Duncan’s Case and other cases - that there never had been a case where certiorari had been given in relation to an acquittal.

McHUGH J:   But that is an acquittal on the merits, is it not?

MR PAPAYANNI:   That is correct but they did not put it on the merits.  They said where the appellant had not been in jeopardy and they differentiated between “voidable” and “void”.  This was a case where it was voidable and not void.

TOOHEY J:   I am just having trouble with the chronology of events as you describe them, Mr Papayanni.  I understood you to say that the request to state a case was not made until after the certificate.

MR PAPAYANNI:   No, your Honour.  You see, when the matter came before his Honour Judge Downs he said mistakenly that he intended to dismiss the informations.  He said “Dismiss the appeals” but he meant dismiss the informations.  The Crown asked for an adjournment - the appeal is still on - and then they came back and said that they wished to state a case.  His Honour said it was too late as he had made up his mind; he had made his decision.  It was not too late because he had not made the formal orders.  The Crown then failed to ask, which was a matter that was competent within the jurisdiction, for a stated case in relation to whether it was too late or not.  They did not do that and therefore, by their error, the judge then went on - it would have been conceded if they had made that application to ask for a stated case.  That would have been conceded, but I was not called on at all in relation to this matter.

McHUGH J:   But the judge should have stated a case.  You concede that, do you not?

MR PAPAYANNI:   I concede that, unless it is frivolous.  But the Crown still had jurisdiction there to ask his Honour to state a case to the Court of Criminal Appeal under section 5B which they did not do.  That was within the privilege.

TOOHEY J:   What was it that you accept that they did ask the appeal judge to do?

MR PAPAYANNI:   They asked the judge to state a case in relation to whether he was correct in dismissing the informations.  Now, I was not called on in relation to that.  His Honour said it was too late and then the judge says, “It’s too late” and went on and dismissed the appeals and we obtained the certificate.

McHUGH J:   But the judge should have stated a case, as you concede.

MR PAPAYANNI:   That is correct.

McHUGH J:   And, therefore, he had no jurisdiction whatever to acquit the accused at that stage.  That being so, he has acted entirely without jurisdiction.  There has been no acquittal on the merits.

MR PAPAYANNI:   Your Honour, the only previous case - there has never been a previous case in relation to this type of matter and, as I say, the authorities all were to the situation that if it was voidable then you could not go by way of certioriari.

McHUGH J:   But it was not a question of being voidable, was it?  I mean, the judge just simply had no jurisdiction to proceed to acquit the accused after he was asked to state a case and which you concede he was bound to state.

MR PAPAYANNI:   Yes, but, you see, the point is he did have jurisdiction, in my submission, to dismiss the matter because we obtained a certificate of dismissal.

McHUGH J:   Well, that does not - that is a piece of paper.

MR PAPAYANNI:   Well, the question is:  can you go behind a certificate of acquittal?  Under section 23 of the Evidence Act it says it is evidence of the acquittal.  The only times you can go behind a certificate of acquittal or conviction are when there is some mistake on the record or possibly even for fraud.  But this is a situation where there is statutory provision saying that you cannot go by way of certiorari.

McHUGH J:   That is true, but there is a whole string of cases in New South Wales that say that section 146 is only directed to errors within jurisdiction. It has nothing whatever to say about the issue of certiorari when the judge has acted completely outside jurisdiction.

MR PAPAYANNI:   Well, the only matters are where there was a want of jurisdiction and your Honour is saying here that he did not have jurisdiction.  The court did have jurisdiction in relation to this matter.  It was a procedural error really in relation to what his Honour did. 

Now, the jurisdiction that his Honour had was in relation to whether he was sitting as a court of appeal in the District Court, which he was, and the situation was that he was sitting there as a court who was competent to give a decision.  Now, if he makes an error of law in relation to that, then the only recourse that they have is to go to the Court of Criminal Appeal.  They had recourse to go to the Court of Criminal Appeal under section 5B.  They did not avail themselves of that.  So they were in error in relation to that and could not then rely upon section 146 - certiorari.

TOOHEY J:   When you say they could have gone to the Court of Criminal Appeal under section 5B, do you mean by, at that stage, asking the judge to state a case?

MR PAPAYANNI:   State a case.  They could have said, “We wish to state a case”.  When his Honour said, “It’s too late”, they could have then said to the judge, “We wish to state a case as to whether it’s too late”.

McHUGH J:   Supposing the judge had said, “Well, I won’t state a case because it’s not too late.  I’m going to issue a certificate.”  What would you say then?  The Crown has no remedy?

MR PAPAYANNI:   There is a difficult situation then.  We say that you cannot - in accordance with the authorities, you can only go by way of certiorari if there is a want of jurisdiction and that is a want of jurisdiction in relation to the order that was made of dismissal.  His Honour was quite entitled and had jurisdiction to make an order dismissing the informations.  The fact that he makes an error ‑ ‑ ‑

McHUGH J:   Mr Papayanni, there are mistakes and mistakes and it is well established that if a judge totally misconceives his powers and his jurisdiction, then he acts without jurisdiction.  This judge clearly misconceived his powers and his jurisdiction.  He thought that he had no duty to state a case and he misconceived his power then to acquit the accused.

MR PAPAYANNI:   Well, that was an error of law.

McHUGH J:   Of course it is an error of law but it was also an error of jurisdiction.

MR PAPAYANNI:   No, your Honour, I do not agree with that because it is an error of law - he did not say he had no power at that stage.  He said he would not state a case because it was too late.

McHUGH J:   I appreciate that, but ‑ ‑ ‑

TOOHEY J:   Is that not power?  Does that not go to power to say, “Well, I can’t state a case because the situation has passed in which I am empowered to state a case under section 5B”?

MR PAPAYANNI:   In effect, he was saying that it was too late because he had given his indication of what was going to happen in relation to that.  The situation then ‑ ‑ ‑

TOOHEY J:   That is not how I read it, Mr Papayanni.  Look at page 28.  He said:

I do not propose to state a case.  I am satisfied that I had delivered my final judgment even though I had not made my final orders I had delivered my judgment.....therefore it is too late to ask for a case to be stated.

Let us assume his Honour was wrong in the view that he took.

MR PAPAYANNI:   He is only wrong in law.  You see, what was available to the Crown then was to say, “We have a procedure that’s available.  We ask you to state a case as to whether it’s too late”.  It has been done before.  It has been done on several occasions.  If his Honour had refused then, then you might have a situation, but he still had jurisdiction.  and if the Crown does not ask for that jurisdiction which is laid down by statute, to go ‑ ‑ ‑

DAWSON J:   A jurisdiction to state a case, one case or another.

MR PAPAYANNI:   That is right.

DAWSON J:   But he did not have jurisdiction to do what he did in the circumstances.

MR PAPAYANNI:   Yes, but the Crown did not ask for it.  It was by their error that his Honour went on to dismiss the informations.

DAWSON J:   No, that is not so.

McHUGH J:   The judge was not entitled to acquit the accused without complying with the statutory procedure and on your own concession he failed to do it.  Therefore, he had no jurisdiction to acquit the accused.

MR PAPAYANNI:   The point is section 146 says you cannot go by way of certiorari.  The only time ‑ ‑ ‑

McHUGH J:   I appreciate what 146 says but, as you well know, 146 has been interpreted over a century or the best part of a century as saying it has nothing to say about a judge who acts without jurisdiction.

MR PAPAYANNI:   The point about it is in relation to that, it has always been from want of jurisdiction.  The only time you can go is for a want of jurisdiction, want of jurisdiction in the order that was made.  His Honour had jurisdiction to make the order.  The fact is that the procedures were not availed of by the Crown - put them in error and made them in the situation where they had to - if they did not avail themselves, there is a discretionary remedy in relation to this matter and a number of matters in relation to discretion were looked at by the Court of Appeal, but one of the matters on discretion is it was by the Crown’s own fault that they did not ask for a stated case in relation to whether it was out of time or not.  If they did not ask for that, how can they then go by way of certiorari which is a discretionary matter and which, on those circumstances, they were not entitled to because they had not availed themselves of all the means that were available to them before his Honour dismissed the informations.

TOOHEY J:   It might have been a bit difficult in the circumstances since his Honour had said, “I don’t propose to state a case”.

MR PAPAYANNI:   No, but his Honour was only saying, “I don’t propose to state a case in relation to whether I was right in dismissing the informations”.  But they did not ask him to state a case whether ‑ ‑ ‑

DAWSON J:   That was the point at where he went wrong and after that he had no jurisdiction to proceed.

MR PAPAYANNI:   If they had asked for stated case - - -

DAWSON J:   There was no need for them to do so.

MR PAPAYANNI:   Well, I feel that the Crown did not ask for the procedures that were available, your Honour.

DAWSON J:   You have made that point, Mr Papayanni.  Do you have any other points?

MR PAPAYANNI:   No, that is the point I make.  As I say, the authorities are all against the situation where, if it is voidable, it has never happened before.  If it is voidable, no certiorari is available.  That is re‑endorsed by section 146.  In Davern v Messel they say that quarter sessions are in a special situation.  Now, in Davern v Messel there was a statutory provision in relation to appeals to the High Court. Of course, as Justice Dixon said in relation to appeals to the High Court, there is a special discretionary remedy, and he relied upon section 173 of the Constitution.

DAWSON J:   You make no point of double jeopardy.

MR PAPAYANNI:   In this case?

DAWSON J:   Yes.

MR PAPAYANNI:   That was the whole basis of it, of the double jeopardy situation, and that was on the discretionary remedy by reason of the fact this was a 1989 matter which had not been brought until July 1991 and this is 1995 in which it is being heard.  Now, the situation there in relation to that is that for some time this had been hanging over the head - he has eight months imprisonment by the lower court magistrate, and the Court of Appeal says that he was not in jeopardy when he had been given eight months.  If he had served the eight months he certainly would have been in jeopardy then.  But the basis on which section 146 does not apply is where it is void completely, where it is a nullity.  There are only two cases in relation to that where there was no notice given to the respondent in the appeal and a case where there was no summons served properly.  Those were cases where there was obviously no jurisdiction right from the start. 

In this case, the judge had jurisdiction at the start.  If he had jurisdiction at the start, he had jurisdiction at the finish.

McHUGH J:   No, not at all.  Sir Frederick Jordan pointed this out in Hebburn’s Case 47 SR(NSW), that is 50 years ago, that there are mistakes and mistakes of law and some mistakes are so fundamental that they affect the jurisdiction of the judge.  It is not merely an error within jurisdiction, it is a fundamental error.  He went along and he acquitted somebody but he had no right in law at all to do it.  He should have been stating a case.  The

matter should have been going up to the Court of Criminal Appeal for decision, and he went ahead and acquitted him.  The certificate is of no more worth than if the accused had gone out and got somebody in the street to write up the certificate.

MR PAPAYANNI:   We put certain submissions to the Court of Appeal in relation to the fact that he did not have any jurisdiction to state a case.  It was not competent to go to the Court of Criminal Appeal by reason of the terms of section 5B.  But the Court of Appeal did not answer those submissions.  They were written submissions, and they have not been advanced here.  But in relation to that - I mean, the question is that his Honour was entitled to state a case at that stage unless it was fruitless or vexatious and he did not do so.  But we say that it was still open to the Crown to proceed as we said.

DAWSON J:   Thank you, Mr Papayanni.  We need not trouble you, Mr Solicitor. 

There is insufficient reason to doubt the correctness of the conclusion reached by the Court of Appeal to warrant the grant of special leave.  Special leave is accordingly refused.

MR PAPAYANNI:   If the Court pleases.

AT 9.48 AM THE MATTER WAS CONCLUDED