Chase v The Queen

[1991] HCATrans 177

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S123 of 1990

B e t w e e n -

THOMAS ALAN CHASE

Applicant

and

THE QUEEN

Respondent

Application for directions

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Chase 1 23/7/91

AT SYDNEY ON TUESDAY, 23 JULY 1991, AT 9.42 AM

Copyright in the High Court of Australia

MR M.F. ADAMS, QC: In this matter, Your Honour, I appear

for the applicant. (instructed by Arden

Solicitors)

MR T. BUDDIN: 

May it please, Your Honour, I appear for the

respondent. (instructed by the Commonwealth
Director of Public Prosecutions)

HIS HONOUR: 

Yes, Mr Adams?

MR ADAMS: 

Your Honour, an attempt was made to file notes of

argument pursuant - this matter commenced just at

the change of the practice. An application and

affidavits in support were filed - sorry, the
application for leave was filed on 6 November, I

understand, and on 27 March the appropriate

affidavits were sworn. We were informed that as

from 1 April the practice of the Court changed, as

I am instructed, and then there were some delays

because of legal aid. Arguments were in fact filed

or attempted to be filed on 22 July but we were

told that it was appropriate now not to file them

but to hand them up in the course of argument.

HIS HONOUR:  Yes, but that is very much at the heel of the hunt, Mr Adams.

MR ADAMS: Certainly, Your Honour.

HIS HONOUR:  Now, again, this is a matter in which the

application was filed, as you say, in November

although my note is that it was filed on 8 November

and not 6 November.

MR ADAMS:  I see. Thank you, Your Honour.

HIS HONOUR:  But that is by the way. Again, no affidavit in

support of the application was filed.

MR ADAMS:  Yes, I -

HIS HONOUR:	What is the reason for that?
MR ADAMS:	Your Honour, I suspect, as Your Honour has

mentioned, that a practice had developed to file an

application in a timely way knowing that the

affidavits would take some time to prepare. That

is-the only reason I can give for that practice.

As Your Honour says, quite rightly, it should have

been done at the same time and - - -

HIS HONOUR: There is absolutely no justification for not

filing the affidavit along with the application for

special leave except, perhaps, if the party has

been unable to obtain a copy of the judgments of

the Court of Criminal Appeal.

Chase 2 23/7/91

MR ADAMS:  Your Honour, there was certainly a delay here in

the obtaining of the judgment, I know, because I

was in the matter, and it was a case in fact in

which the judgment was - and I certainly do not

suggest improper - edited from that which had

been - there was extempore judgment but - - -

HIS HONOUR:  But when I asked you earlier, a few moments

ago, what was the explanation for not filing the

affidavit, you said you were not aware of any

explanatory circumstances.

MR ADAMS:  No, I am not, Your Honour. I am not asserting

that it was because of that fact that this delay

occurred.

HIS HONOUR: Well, we can put that to one side then. That

seems to be an irrelevance that you have introduced

into the discussion.

MR ADAMS: Well, I did not intend to do so, Your Honour.

HIS HONOUR:  No. Well, we come back to this situation where

a practice seems to have developed that has no

justification at all ..

MR ADAMS: Quite so, Your Honour.

HIS HONOUR:  We do not want to see a repetition of it and I

must say that it was this case more than any other

in which I was contemplating sending the papers to

the Law Society because not only has there been a

failure to file that affidavit in a timely fashion

but, again, it seems that the application was not

served on the DPP.

MR ADAMS:  I am completely unaware of that, I must tell

Your Honour.

HIS HONOUR: Is that the situation?

MR BUDDIN:  I think it is partly the situation. As I

understand, the DPP that the papers were served on

was the New South Wales DPP and not the

Commonwealth and that was rectified, as I

understand it, some time in May of this year.

HIS HONOUR:-_ Well, there you are: the appropriate DPP was

not served for six months.

MR ADAMS: Quite, Your Honour.

HIS HONOUR:  Surely, one can identify who the appropriate

DPP is.

MR ADAMS:	Yes, Your Honour, of course.
Chase	23/7/91

HIS HONOUR: It is a sad and sorry story. Well, what else

have you got to say, Mr Adams?

MR ADAMS:	Your Honour, in this matter - - -
HIS HONOUR:	By the way, before you answer that question, I

should also point out to you that a number of

letters have been written by the Registry to your

instructing solicitors and those letters attracted

no response whatsoever.

MR ADAMS:  Your Honour, I am informed that my instructing

solicitor has spoken to the Registrar on a number

of occasions about this matter. I am unable to

specifically assert that each letter was responded

to but I understood that there were - - -

HIS HONOUR:  There were responses on 29 April and 12 June

but I think they were the only responses in writing

from the solicitors to communications from the

Registry.

MR ADAMS:  I understood, Your Honour, that there had been

telephone discussions between my solicitor and the

Registrar.

HIS HONOUR:	Yes, I am told that is so.
MR ADAMS:	But I am unable to say in response to what

specific matters. Your Honour, part of the

difficulty in this case was that in April the

applicant withdrew instructions because his

parents, who I think were paying his fees, declined

to do so. An application then was made for legal

aid and there was some delay.

HIS HONOUR:	When was the application made for legal aid?
MR ADAMS:	On the same day, Your Honour, that the applicant

reinstructed the firm, namely, 22 April, and legal

aid for an opinion was granted on 8 May.

Your Honour, I must say that from that date the

solicitor has taken the view that he should proceed

upon the basis, at all events, in the hope that

legal aid would be granted and I do not think we

can or seek to put down any further delay to legal

aid.

There were some problems in relation to filing

the summary of argument for which, I must say, I,

to some degree, personally, am responsible.

HIS HONOUR:  What, you say the summary of argument is

available now?

MR ADAMS:  It was, in fact, sought to be filed on - - -

Chase 4 23/7/91

HIS HONOUR:	Yes, I gathered that.
MR ADAMS:	Yes, Your Honour.
HIS HONOUR:	Have you got it there in Court?
MR ADAMS:	Yes, Your Honour.
HIS HONOUR:	Would you hand it up to me?

MR ADAMS: Certainly. Your Honour, may I add that that is

an appeal against conviction. Sentence was the

subject of an appeal upon the grounds that it was excessive before the Court of Criminal Appeal and

no appeal on the ground of sentence was lodged in

the High Court. However, other cases, in further consideration by the legal representatives of the appellant, will lead - and I think the Registrar

was informed by telephone of this - seeking to add

an appeal against sentence to raise questions

relating to the constitutionality of the

Commonwealth Prisoners Act. That is the subject- matter of a reference to the Full Court in a matter of Leeth.

HIS HONOUR:	The Full Court of what Court?
MR ADAMS:	Of this Court.
HIS HONOUR:	High Court.

MR ADAMS:  Yes. And it was proposed through the Registrar -

I raise it now because, as I understand it,

Your Honour may make directions. But it was

proposed to raise with the Registrar the proper
procedure for raising the matter now and seeking to have the argument upon the question set down at the

same time, if that is convenient to the Court, in

which the matter is to be argued in Leeth.	It
raises precisely the same question.

HIS HONOUR: Exactly the same question?

MR ADAMS:  Yes, exactly the same question. I have a copy of

the questions reserved.

HIS HONOUR:  Yes, could you hand those in?

-

MR ADAMS:	It has been set down.
HIS HONOUR:	Do you know what the date is, Mr Adams?

MR ADAMS:  Yes, 24 and 25 September. Your Honour, there is

another matter in Your Honour's list today called

Ghomari in which my learned friend, Mr Byrne,

appears which raises slightly different questions

but also it is proposed to raise the constitutional

Chase 23/7/91

question or sought to raise the constitutional

question. I understand Mr Jackson is in that

matter, Your Honour, for the appellant. It has
apparently been in the list for some time because I
notice there is an amended statement of claim here

dated 19 June 1990, but it is, at all events, I am

instructed, set down for September.

HIS HONOUR:  Yes. I will have to have a look at this. I

will have to discuss the matter with the Registrar,

Mr Adams, to see whether or not this matter can be

or should be listed on 24 or 25 September.

MR ADAMS: If Your Honour pleases.

HIS HONOUR:	What do you say about it, Mr Buddin?
MR BUDDIN:	I must say that until two or three minutes

before Your Honour came on the bench I knew nothing
of the existence of Leeth but if it is listed for

the 24th and 25th and raises parallel matters, then

I would -

HIS HONOUR: Well, you had better have an opportunity of

looking into it, had you not?

MR BUDDIN: Quite, but if Mr Adams is correct in his

assertion that there are parallel issues, then

obviously it would be of convenience to the Court

and I am sure we can make suitable arrangements,

but that is only on the severity aspect, as I

understand it, of Chase.

HIS HONOUR: That is right.

MR BUDDIN:  Yes.

It is not suggested that the conviction matter be listed at the same time?

MR ADAMS:  No.

HIS HONOUR:  No, no, not at all. I suppose there is no

but in the event that ultimately the application	reason why the two matters should not be severed
were successful in relation to conviction, of course, argument on the sentencing question would
be entirely academic and to that extent it seems a little odd that the procedure advocated by
Mr-Adams might result in the hearing of the
sentencing question before the conviction appeal
comes on. That does not seem appropriate.

MR ADAMS:  Your Honour, if the arguments put forward by

Leeth are accepted by the Court, it would have a

general effect upon any other outstanding matter at

all events.

Chase	6	23/7/91
HIS HONOUR:	Yes, exactly.	And I was then going to raise

with you, well, is there any occasion for this
matter to be listed on the 24th or 25th? The
question, no doubt, will be resolved in the Leeth
case. If it were successful, or if the applicant

was successful, you would be the beneficiary.

MR ADAMS: Quite so, Your Honour.

HIS HONOUR: But, of course, if the applicant were not

successful, you would have lost in circumstances

where you were not really able to add to

Mr Jackson's argument.

MR ADAMS:	Yes, Your Honour.
HIS HONOUR:	But, in the circumstances, that may not be a

great deprivation, Mr Adams.

MR ADAMS:  Your Honour, I would not think it would be any

deprivation at all.

HIS HONOUR: Well, in those circumstances, it might be

better to let Leeth go forward and deal with your

case separately.

MR ADAMS:  Yes, Your Honour, and in the meantime we will

file an amended or an additional notice in

accordance with the rules relating to the sentence

question and it can be dealt with - - -

HIS HONOUR:  Well, you can do that and then Mr Buddin can

determine what attitude he wants to take in the

circumstances.

MR ADAMS:  Quite, Your Honour. I think it is implicit in

what Your Honour said that it is unlikely that

Chase would come on for hearing at this stage in

relation to the conviction appeal prior to

September.

HIS HONOUR:  I cannot be specific about that but I would be

inclined to think that that is so, Mr Adams, but I

cannot give you an assurance that that would be so.

MR ADAMS:  No. I entirely accept that. If it did come on

before and we were successful in the appeal on

conyiction as Your Honour has pointed out, sentence

falls.

HIS HONOUR: Certainly.

MR ADAMS:  If we are unsuccessful, then perhaps we could

look at that other question.

HIS HONOUR: Well, certainly that would put a different

complexion on the matter and, in those

Chase 7 23/7/91

circumstances, there would not be any obstacle, as at present advised, to your appearance on the 24th

and 25th, adding your weight to the submissions

that Mr Jackson presumably is going to make.

MR ADAMS:	I think Your Honour is using "weight" in a quite different sense to - - -
HIS HONOUR:	They are your words, Mr Adams, they are not

mine.

MR ADAMS: Yes, Your Honour. But, I will be there,

Your Honour, to give him support at all events.

Your Honour, as we see it, and accepting

entirely and with embarrassment and, if I may say

so, contrition, what has fallen from Your Honour in

relation to the progress of this matter, however,

the matter is, as we see it, ready for such

disposition as this Court determines.

HIS HONOUR:  Yes, and you are in a position, Mr Buddin, to

file your summary of argument in accordance with

the practice directions?

MR BUDDIN:  Yes, we have got 21 days, essentially, from now,

and, as I understand it, that three Justices of the through -

HIS HONOUR:	Into an A or B category.
MR BUDDIN:	A or B category, yes, quite.
HIS HONOUR:	Yes, that is what happens.

MR ADAMS:	Your Honour, may I just ask, although I hesitate to do so, but Your Honour has a copy.	Would
Your Honour - - -
HIS HONOUR:	Do you want it back?

MR ADAMS:	No, no, there is no reason why - - -
HIS HONOUR:	No, no, you can have it back because it is in

such a poor state, Mr Adams, that it is not readily

comprehensible anyhow.

MR ADAMS:  I see, Your Honour.

HIS HONOUR: Well, the trouble is it has got all sorts of

handwritten amendments on it.

MR ADAMS:  I beg your pardon. That is the Leeth questions.

I was referring, in a sense -

HIS HONOUR:	You want the summary?
Chase	23/7/91

MR ADAMS: No, no, I certainly do not want it. It is just

that when we sought to file it we were told it was

not appropriate to file it. Perhaps me might file

it with the Registrar.

HIS HONOUR:	Yes, it can be filed.
MR ADAMS:	Thank you, Your Honour.
HIS HONOUR:	I think the matter can be left on the footing

that it will now proceed in accordance with the

Rules and, I take it, you are prepared to give an undertaking on behalf of your solicitor that the

application will now be prosecuted with all due

diligence?

MR ADAMS:  I certainly do, Your Honour.

HIS HONOUR: Very well. Is there anything else you want to

raise, Mr Buddin?

MR BUDDIN:	No, I am content, Your Honour.
HIS HONOUR:	Mr Durie, is there anything you want to say

about this case?

MR G. DURIE (of Legal Aid Commission): Only this,

Your Honour, Mr Adams has set out the legal aid

position very fairly, with respect to him. The

Commission has not yet received an advice from

Mr Adams as to the merits of the appeal and will not be in a position to determine whether to grant legal aid until that advice is received.

HIS HONOUR:  And how quickly is that advice going to be

given?

MR ADAMS:  Your Honour, it has, in fact, I think, been given

in the last day or so but we are not awaiting the

legal aid -

HIS HONOUR:  I see.

MR ADAMS:	I mean, hopefully, it will come in due course.
HIS HONOUR:	As you have said earlier, the prosecution of

this matter is not dependent on the grant of legal

ai9?

MR ADAMS:  Not at this stage it is not, no.

HIS HONOUR: Very well. Yes, thank you.

AT 9.59 AM THE MATTER WAS ADJOURNED SINE DIE

Chase 9 23/7/91