Practice—High Court—Rules of Court—Validity—Leave and special leave to appeal—Application—Required to be made to Full Court by counsel—Statutory provision for parties to appear personally in courts exercising federal jurisdiction—Whether rule repugnant to statute—Whether applicant for leave or special leave a party—Judiciary Act 1903-1973 (Cth), ss. 78,86—High Court Rules O. 70,rr.2(6),32(2).
Decisions
December 22. The following written judgments were delivered:- BARWICK C.J., STEPHEN, MASON AND JACOBS JJ. Section 86 of the Judiciary Act 1903-1973 ("the Act") empowers the Court to make Rules of Court necessary or convenient to be made for carrying into effect the provisions of the Act or so much thereof as relates to the practice and procedure of the Court. The rules of this Court made pursuant to this power provide in O. 70, r. 2(6) that an application for leave or special leave to appeal shall be made to a Full Court by counsel. (at p122)
2. It is submitted that this rule is invalid because it is repugnant to s. 78 of the Act which provides that "in every Court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors as by the laws and rules regulating the practice of those Courts respectively are permitted to appear therein". The first question is one of construction, namely, whether an applicant for special leave is a "party" within the meaning of s. 78. (at p122)
3. In the ordinary course of litigation, criminal or civil, it is considered that a party to proceedings should have the right to present his own case. But an application for leave or special leave to appeal is not in the ordinary course of litigation. The practice of this Court in granting or refusing leave or special leave makes this clear. First, until the grant of leave or special leave, there are no proceedings inter partes before the Court. This is so even in a case in which the application for leave or special leave is opposed. Whilst notice of intention to move the Court for leave or special leave may be given in writing, which is filed in the Registry of the Court, the motion for leave or special leave is made orally in court. Notwithstanding that the notice of intention to apply is served on persons who may be interested to oppose the application, the intending applicant is not bound to move the Court. When the motion is moved, the applicant for such leave or special leave is no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court. Secondly, the application must exhibit features which attract the Court's discretion in granting leave or special leave. There is no right to leave or special leave. In the latter case, the matter must involve questions of general public importance. The special nature of the application must be maintained…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Collins v The Queen [1975] HCA 60
Case
[1975] HCA 60
Decision Date
CaseChat Overview and Summary
Collins appealed his conviction for murder in the Supreme Court of New South Wales. The central dispute concerned the admissibility of a confession made by Collins to police. The High Court of Australia was required to determine whether the confession was improperly obtained and therefore inadmissible, or whether it was lawfully obtained and properly admitted into evidence at trial.
The legal issues before the High Court were whether the trial judge erred in admitting the confession, and whether the confession was obtained in circumstances that rendered it involuntary or otherwise inadmissible at common law. This involved an examination of the voluntariness of the confession, considering whether Collins was induced to confess by threats or promises, or whether his will was overborne by the circumstances of his questioning.
The High Court held that the confession was admissible. The judges reasoned that the evidence did not establish that the confession was involuntary. They applied the common law principles governing the admissibility of confessions, which require that a confession must be voluntary to be admitted into evidence. The court found that the questioning of Collins, while persistent, did not amount to coercion or oppression that would render his confession involuntary. The trial judge's decision to admit the confession was therefore upheld.