CANBERRA, 16 November 1994
#DATE 24:10:1995, PERTH

Counsel for the Appellant D. H. Peek and R. B. Harrap

Solicitors for the Appellant Harrap and Associates

Counsel for the Respondent J. J. Doyle QC,
Solicitor-General for the
State of South Australia and
N. A. Manetta

Solicitors for the Respondent B. M. Selway, Crown Solicitor
for the State of South Australia

Orders

1. Appeal allowed.
2. Set aside the order of the Full Court of the Supreme Court of South Australia and in lieu thereof order that the respondent's application for judicial review of the order made by his Honour Judge Russell on 28 July 1993 be dismissed.
3. The appellant and respondent have liberty to apply in writing within fourteen days for an order for the costs of the proceedings in the Full Court and this Court.

Decision

BRENNAN, DEANE, TOOHEY, GAUDRON AND McHUGH JJ. The appellant, Mr Craig, was charged by information in the District Court of South Australia with three offences, namely, larceny of a motor car, receiving the motor car knowing it to be stolen and damaging the motor car by fire, such damage amounting to $8000. The first two offences, ie larceny and receiving, were charged in the alternative. The maximum penalties, in the event of conviction, were respectively imprisonment for five years (larceny), eight years (receiving) and five years (destroying by fire).

2. The appellant applied to a judge of the District Court for an order that the proceedings against him be stayed until such time as he could be "provided with representation by counsel at public expense". The application came on for hearing before Russell DCJ on 22 June 1993. Oral evidence was given by both the appellant and a witness from the Legal Services Commission and documentary evidence was also received. After hearing submissions from the appellant and counsel for the Crown, his Honour adjourned the matter until later in the day when he delivered oral reasons for judgment.

3. In his reasons, Judge Russell made a number of specific findings about the appellant, the charges against him, his lack of means and his inability to obtain legal representation for his pending trial. In the light of those findings, he considered that the appellant "could not receive a fair trial unless he is properly represented by counsel". His Honour concluded that, in all the circumstances of the case, the effect of the majority judgments in this Court in Dietrich v The Queen (1) was that the trial "should be adjourned, postponed or stayed until legal representation (was) available" (2). Rather than taking "the drastic step of staying the proceedings", he ordered that the date which had been set for trial be vacated, that a fresh status conference be appointed, that the South Australian Attorney-General be informed of the orders made and the reasons for making…

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.

Continue reading Craig v South Australia

Details

AGLC: Craig v South Australia [1995] HCA 58
Case: [1995] HCA 58
Decision Date: 24 October 1995

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Craig, against the respondent, the State of South Australia. The dispute concerned the validity of a notice issued by the respondent under section 293(1) of the *Criminal Law Consolidation Act 1935* (SA) requiring the applicant to attend a police interview. The applicant sought a declaration that the notice was invalid and that he was not required to attend the interview.

The central legal issue before the High Court was whether the notice issued under section 293(1) of the *Criminal Law Consolidation Act 1935* (SA) was a valid exercise of power, specifically whether it constituted an unlawful fetter on the applicant's right to remain silent and his right to legal advice. The Court had to determine if the statutory power to require attendance for interview could be exercised in a manner that compelled an individual to disclose information that might incriminate them, without adequate safeguards.

The High Court held that the notice was invalid. Brennan, Deane, Toohey, Gaudron and McHugh JJ reasoned that the common law right to silence and the right to legal advice are fundamental. They found that section 293(1) of the *Criminal Law Consolidation Act 1935* (SA), as applied by the notice, purported to compel the applicant to answer questions that might incriminate him, thereby infringing these fundamental common law rights. The Court concluded that such an infringement could only be justified by clear and unambiguous statutory language, which was absent in this instance. The statutory power to require attendance for interview did not extend to compelling an individual to answer questions that might incriminate them, nor did it override the right to seek legal advice before doing so.

The High Court ordered that the appeal be allowed and that the declaration sought by the applicant be made.

Orders