Cruzado v The Queen

[1993] HCATrans 143

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No S30 of 1993

Sydney

B e t w e e n -

MIGUEL GARRALON CRUZADO

Applicant

and

THE QUEEN

Respondent

Directions hearing

MASON CJ

(In Chambers)

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TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 3 JUNE 1993, AT 10.36 AM

Copyright in the High Court of Australia

MR A.M. MARTIN: In this matter I appear for the applicant.

(instructed by Hovan & Co)

MR I. GUY:  I appear for the respondent. (instructed by the

Commonwealth Director of Public Prosecutions)

HIS HONOUR:  You seem to be the messenger chosen to deliver

a number of unsavoury messages.

MR MARTIN:  No, Your Honour. In this matter I am both the

jockey and the horse. Cruzado is a matter

which -

HIS HONOUR:  You are a genuine goer, are you?

MR MARTIN:  A genuine goer in Cruzado. Cruzado is a matter

which is relatively simple.

HIS HONOUR:  So simple that there was no need to do anything

but file this application for special leave to

appeal and an affidavit in support, consisting of

two paragraphs.

MR MARTIN:  Your Honour, what happened in Cruzado happened

literally on the floor of the Court of Criminal

Appeal. Mr Cruzado, a person who does not have

much English, advised through an interpreter on the

very day of the hearing of the appeal that there

may have existed documentary evidence which may

well be fresh evidence. Correspondence was then

conducted with the solicitor concerned, who was not

the solicitor who had been instructed by Mr Cruzado

to act for him in his trial. The solicitor has

refused steadfastly to hand over any file

containing any documents which, on Mr Cruzado's

instructions, may be documents that would

constitute fresh evidence.

HIS HONOUR:  Is this because the documents are the subject

of a claim for a lien for unpaid fees?

MR MARTIN: Yes, there is a claim for a lien for unpaid

fees. In this matter, my instructing solicitor and

myself appeared, without fee. This is a man from

Spain who was arrested in relation to an

importation and has been in gaol ever since. There

appears to be no possibility of access to funds.

In relation to the solicitor who is claiming the

lien, a complaint has been lodged with the Law

Society. Now, unfortunately the Law Society cannot

do anything further in relation to compelling

production of these documents - I have to honestly

say, Your Honour, that I do not know if they will

necessarily reveal the matter of fresh evidence,

but in My Cruzado's interests it was felt

Cruzado 2 3/6/93

appropriate to pursue that to the end, given that

that may be, as it were, another string to the bow.

In terms of preparation of documentation in

relation to an appeal, that did not include the

fresh evidence. That could be done almost

immediately. The necessary documentation, at least

in draft form, is available.

HIS HONOUR:  There are arguable grounds, are there, without

the fresh evidence point?

MR MARTIN:  Yes, without the fresh evidence point. Now,

Your Honour, it would seem to me that there is no

power in the Court of Criminal Appeal or a New

South Wales court to compel production of these documents, but were the High Court to regard itself

as seized of the matter the Court may have a power

under Order 70 rule 15 to make an order on the
solicitor requiring production of those documents.

And if the Court feels that it has such a power,

that is the order that I seek at this stage.

HIS HONOUR: Order 70 rule 15, you say?

MR MARTIN:  Yes, Your Honour. In the practice book I think

it is paragraph 3546.	I have a copy here,
Your Honour.

HIS HONOUR:  You might hand that up. Rule 15 does not

really seem to be directed to this· situation at

all. It is empowering the Court to deal with a

case where the:

appellant has not done any act required to be

done by or under these Rules -

The problem is that it speaks of an appellant; it

does not speak of an applicant for special leave

and even if one interpreted ''appellant" as

including an applicant for special leave, the

orders that are referred to appear to be orders

that are designed to enable the appeal either to be

disposed of or orders which would ensure that the

appeal proceeds and, if it does not proceed, that

compelling the production of documents in support of a ground of the appeal.

it shall stand dismissed for want of prosecution. for

What do you say about it, Mr Guy?

MR GUY:	Your Honour, I had no notice my friend was
proposing to raise the matter so I regret to say I
have not turned my mind to the Order or the rule.
I am sorry, Your Honour.

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HIS HONOUR:  It seems to me, on the face of it, Mr Martin,

that it does not empower the Court to do something

of a kind you suggest at a stage when there is no

appeal and all that is before the Court is an

application for special leave.

MR MARTIN:  I am in Your Honour's hands. I am quite

prepared to lodge the necessary documentation,

fairly simple documentation, in relation to this

matter. It is a fairly clear cut issue - - -

HIS HONOUR:  Have you made an application to the solicitor

for access to the documents, rather than for

handing over the documents?

MR MARTIN: Yes, Your Honour.

HIS HONOUR:	You have, and he has declined access?
MR MARTIN:	That has been declined. My instructing

solicitor was originally advised that the

documentation had been passed on to another

solicitor and it was only when a request was made

to ascertain the identity of the other solicitor

that a claim for a lien was made and since that

claim has been made, there has been no co-operation

at any level.	Now, I can certainly pursue that,
Your Honour.

HIS HONOUR:  I think you had better pursue that. In the

meantime, I think you had better get your documents

on.

MR MARTIN:  Yes, Your Honour. That can certainly

HIS HONOUR:  I do not think, at this stage, there is any

order that I ought to make. Perhaps at a later

stage, something can be done. You might give more

attention to see whether or not there are other

powers that might be exercised.

MR MARTIN: Yes, Your Honour.

HIS HONOUR:  Are you going to give an undertaking to file

the documents?

MR MARTIN: Yes, Your Honour.

HIS HONOUR:  What is the undertaking, within 14 days?

MR MARTIN: Within 14 days, Your Honour. In this matter, it

could be done within seven.	I would be prepared to
make that undertaking.

HIS HONOUR:  Seven; very well. You give an undertaking to

file and serve within seven days of today's date

all documents required by the rules and the

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Practice Direction necessary to bring this

application for special leave on for hearing.

MR MARTIN:	I give that undertaking, Your Honour.
HIS HONOUR:	Of course that relates to documents to be filed

on behalf of the applicant, because the respondent

obviously has to take steps as well before the

application can be heard.	Are you happy with that,
Mr Guy?

MR GUY:  Yes, I am, Your Honour.

HIS HONOUR:  Very well. The matter will be disposed of in

that manner.

AT 10.47 AM THE MATTER WAS ADJOURNED SINE DIE

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