De Simone v The Queen

[2012] HCATrans 86

[2012] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M22 of 2012

B e t w e e n -

GIUSEPPE DE SIMONE

Applicant

and

THE QUEEN

Respondent

Application for stay of proceedings

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 4 APRIL 2012, AT 10.01 AM

Copyright in the High Court of Australia

MR G. DE SIMONE appeared in person.

MR T. GYORFFY, SC:   If it please your Honour, I appear for the respondent in the matter.  (instructed by Director of Public Prosecutions (Vic))

HER HONOUR:   Yes, Mr De Simone.

MR DE SIMONE:   Thank you, your Honour.

HER HONOUR:   I have read your affidavit.

MR DE SIMONE:   You have read my affidavit and have you had a chance to read the exhibits to the affidavit?

HER HONOUR:   Yes, I have, thank you.

MR DE SIMONE:   Your Honour will be aware in summary therefore that the application for a stay was made in the court below, the court below being the Court of Appeal in the Supreme Court of Victoria.  It declined to grant a stay of the trial proceeding in somewhat unusual circumstances in that the primary judge had not yet ordered a trial to proceed.  That order, that a trial proceed, was actually made on 23 March.  In anticipation of that being the order made I have sought the order at the appellate level in the court below on 16 March.

In the course of arguments in that court as to whether a stay was warranted or not, the Justice who delivered the judgment of the court, Justice of Appeal Buchanan, said that he felt it would be incredibly unlikely the matter would come on before the special leave to appeal application would be heard by this Court.  The reasons have not been published and that was the only argument he advanced, apart from what would be surmised from his view that the appeal to the Court of Appeal had no prospect of success and therefore the decision to not certify was the correct decision.

It is always difficult, no doubt, for a judicial officer to make a decision believing it to be correct and then having entered into his or her mind the fact that there is a prospect that it might be incorrect.  Human nature would suggest that that is a rather onerous task, but it is one which justices, especially justices of appeal, do need to exercise everyday.

In my application for special leave to appeal to this Court, I have set out areas where I believe the court below erred and the orders which I seek in this Court are effectively to stand in the feet – the shoes, sorry – the shoes of the – I knew it was some part of that area of the anatomy – the shoes of the Court of Appeal and determine the matter.  It is unnecessary for the approach which is suggested by the respondent, that is, that if the special leave to appeal is granted, that this Court would limit itself merely to the question of whether judicial review ought to have been granted and then remit the matter back down to the Court of Appeal to decide according to law.

HER HONOUR:   Now, Mr De Simone, I should point out to you that the jurisdiction of this Court to grant a stay of criminal proceeding pending the hearing of a special leave application is undoubted, but it is a jurisdiction which is sometimes referred to as extraordinary.

MR DE SIMONE:   Yes, your Honour.

HER HONOUR:   And it will only be exercised in ‑ ‑ ‑

MR DE SIMONE:   In exceptional circumstances.

HER HONOUR:   Yes.

MR DE SIMONE:   Yes.  Your Honour, I am aware of the ‑ ‑ ‑

HER HONOUR:   The rule.  I should say, the established principles for the grant of a stay.

MR DE SIMONE:   The principles which have been applied following, I think it is, the Jennings decision in Jennings Construction v Burgundy Royale where his Honour Justice Brennan set out in summary form the relevant principles.  In my submissions, your Honour, I have said that those principles were applied to a particular set of factual circumstances.  There had been a final determination in a civil proceeding.  While the principles were expressed, taking into account the criminal jurisdiction, the way they are applied and the balancing exercise which is used by ICA I believe in the interests of justice should be ameliorated slightly in the favour of the accused person.

Now, at this point there is a trial which is scheduled to commence but has not yet commenced.  That is clear from the definitions in the Criminal Procedure Act which is the governing legislation relating to the procedure of trials. 

HER HONOUR:   Now, the exceptional circumstances about which we have spoken, they are set out in this revised applicant’s submissions which you have filed with the Court?

MR DE SIMONE:   Yes, your Honour.  I must apologise to the Court, there were two rather minor typos and the revised submissions ‑ ‑ ‑

HER HONOUR:   Do not trouble yourself about that.

MR DE SIMONE:   Sorry.  Okay.  Your Honour, the exceptional circumstance is this.  It is that, in my respectful submission, the agitation of an application for a permanent stay would be rendered entirely nugatory if this stay was not granted because given the timetabling that has occurred, the application for special leave will not be considered before the trial commences – it is scheduled to commence on 11 April – therefore the subject matter will effectively – of the appeal application for special leave will have been rendered futile and it is not a matter which can ever be agitated again.

If the trial commences and proceeds to conclusion, one of two outcomes are possible - there will be a finding of guilt or a finding of non‑guilt.  Whether a stay ought to have been granted or not will no longer be a relevant matter because, self‑evidently, it will be something which has been washed away.  Now, in my respectful submission, the decision by the State through its agency, the Director of Public Prosecutions, is an administrative decision.  It is one which the courts would only interfere with again in exceptional circumstances, but it is one where, if grounds for so considering an interference are shown, the courts will interfere with it.

Now, again, the leading case in relation to permanent stay applications is one related to a private prosecution not a public prosecution and different considerations apply in the case of a public prosecution to a private prosecution.  In particular, the Director of Public Prosecutions has certain duties which a person prosecuting privately does not have and they are the duties that are set out in the legislation governing his or her office, and in the case of whichever it is, his office so I will use the term “his” for shorthand. 

In the case of the Director’s office, he has published a series of policies including the Prosecutorial Discretion Policy which is policy No 2 and it sets out in quite detail the matters that have to be considered whether to prosecute or not.  Inherent in that policy is an appreciation that prosecuting someone when there is not a reasonable prospect of success or there is some other reason for not prosecuting causes an injustice, even if the person is acquitted, and that injustice is that the person has been put to the trouble of and the inconvenience of a trial, not to mention the expense.

So therefore it is very important – there are other factors including the obvious ones, that the courts are busy and if unmeritorious prosecutions are run, more important prosecutions with better chance of success are delayed and complaints that have no other form of redress are kept waiting for justice.

Now, in an ideal world, every prosecution would be so well balanced that it would result in a conviction which would be upheld on appeal, but this is not a perfect world.  It is recognised that there will be cases where people are prosecuted who are found not guilty, but having said that, the guidelines do recognise that it is quite a gross imposition on someone to be tried for a crime if there are not the proper grounds for doing so. 

So the courts below have made a number of findings, that is both at the primary judge level and the level of the appellate division of the Supreme Court, and those findings, I believe, are wrong in law in relation to the admission of evidence by selective extracts from transcript.  I also say that the way that evidence was submitted by the prosecution breached the fundamental duty of fairness the prosecution has, in particular, because the selective extract of some dozen or so pages of a 300 or 400‑page transcript of cross‑examination can and in this case could have been misleading.

So in the circumstances of where the primary way in which evidence is received by a court is in that court orally by a witness on oath in the presence of the other side and subject to cross‑examination and while the law does recognise for reasons of convenience and in the interests of justice that there may be exceptions to that, they are treated as exceptions.  Not in every case, even where those exceptions are made out, do the interests of justice allow that evidence to be received. 

Now, self‑evidently, the informant and the complainant were available to give evidence in contradiction to the evidence which was led before the primary judge, but the respondent herein, that is, the Director below, chose not to do so but chose to provide potted extracts.  Now, I have produced in my affidavit what I regard as irrelevant extracts, which of course I had no opportunity to put below, where both the complainant and the informant “took the Fifth”, I think is the way the Americans call it, that is they sought to be excused from answering questions on the basis of self‑incrimination and where a witness does so, presumably in both cases having taken legal advice, there is something that they are fearful of that in so answering they may incriminate themselves.

So, respectfully, I believe that if the primary judge had received the whole transcript, including those extracts, and accepted my submission that the transcripts should either be received in full or not at all, but preferably that the matter should be dealt with by evidence, the decisions that were made may have been different.  It beggars belief that a judge dealing in the criminal jurisdiction would not be influenced by the character of a witness’ evidence where that witness was fearful of self‑incrimination, but of course we will never know for sure.  We can only infer that that would be the case.

The respondent herein, your Honour, is, in relying on the Jennings Case, looking at, as set out at paragraph 3.4 of the outline of submissions, the matters which the – sorry, not 3.4 – 2.2, sorry.  I knew it was a list and I looked at the wrong list – at 2.2 set out the matters which come from Jennings Case.  What his Honour Justice Brennan said in relation to the issue of the substantial prospects of success, that is that special leave would be granted, is, when construing what – in a particular case what his Honour did say was this, and I think this is on the same page, slightly lower down:

In the present case the respondent submits that special leave is unlikely to be granted.  It is undesirable to canvass the arguments in advance.  I do not, however, think that the prospect of a grant of special leave is insubstantial.

Now, your Honour, in this particular case what was at risk was the ability to recover in the event of a commercial sum between two commercial parties and there were exceptional circumstances shown there because while there may have been some ability to, given the involvement of the Northern Territory therein, to recover for the losses, there was clearly going to be a loss which could not be easily recovered if the applicant, that is, Jennings, had failed to have the stay granted. 

In this case it is the same issue, your Honour. I will never be able to agitate my contention that the onus to show - that is, to demonstrably justify provisions of the Charter in section 7(2) create an onus set out in the Oakes Case in the Canadian Supreme Court, on the administrative authority rather than on the – that is, the body doing the thing rather than the person asserting the wrongdoing.

Now, both the primary judge and the court below held that I held, because of the decision in the Williams v Spautz Case, that that was my onus, but I say and my submission was that the onus had shifted because of the provisions of section 38 of the Charter and, your Honour, each of the Charter provisions were in operation from 1 January 2008 and all the relevant matters complained of arose after that date.

Unlike the Momcilovic Case where the issue was the legislative interpretation of an Act of Parliament, this is a much simpler and clearer matter to which the Charter is directed and that is the actions of administrative bodies, and section 38 of the Charter makes it clear they have an obligation which renders it unlawful not to consider a relevant human right and section 7(2) says how that consideration must be exercised.

Now, there was no evidence before the courts below, that is, before the primary judge that any such consideration had been taken into account.  There was almost a post hoc ipso propter hoc sort of justification on the basis of, well, we still continue prosecution, therefore we must have considered these things and decided against the accused.  Well, that is not only a logical fallacy but it is not the way the obligations and public authorities ought be construed in Victoria. 

The Court of Appeal in Victoria has been notoriously hesitant to invoke Charter rights partly because there has been a significant campaign to question the whole validity of a charter approach to human rights and the courts have been very careful not to exceed their jurisdiction but, in my respectful submission, they have erred too far on the side of conservatism and not enough in the ordinary words of the legislation.

So my application today is that there is a prospect that special leave will be granted because the issue at the core of this application for special leave - and therefore enlivens the stay application - is an important issue of public policy.  Where does the burden lie and what does the term “demonstrably justify” mean in Victoria?  Now, I know this honourable Court did consider some of those aspects in relation to the legislative function, however, it has not considered them in relation to the administrative function and, respectfully, the administrative function in terms of its impact on citizens is by far the more important. 

To use the vernacular, people rarely get impacted on by the Parliament but they often get impacted on by the bureaucrats, and clarifying exactly the way section 38 operates with section 7(2) and whether there is an evidentiary burden or legal burden on a person asserting a Charter wrong, is I think a very important issue of general public policy and is a matter which is worthy of going before this honourable Court.

HER HONOUR: Now, those allegations of breaches of the Charter, they concern the period of time in which the prosecution was being prepared. Is that right?

MR DE SIMONE:   No, your Honour.  They go from the inception of the complaint all the way through to the decision to continue to prosecution.  So the period of time, if you like, your Honour, is from approximately March 2007 through to the current day, because my satisfaction would be if the prosecution was stayed or stopped or withdrawn, and I say that correctly applying the prosecutorial discretion, correctly applying – and, your Honour, I do have a copy of the documents, being the prosecutorial discretion, the human rights and the application of model litigant guidelines which come from the Director’s policy guidelines which are published which would be relevant in consideration of the issue of the application for special leave, but they are obviously also relevant in terms of determining the strength of the likelihood or otherwise that the matter would be successful.  I also have one unpublished case of the Court of Appeal of Victoria in relation to this very issue of a stay and I am very familiar with this case because I was the applicant for the stay and successful.  So if I could hand those up.

HER HONOUR:   Certainly.

MR DE SIMONE:   Your Honour, the way the Court of Appeal approached – and this was again a case where the court below, the Court of Appeal, granted the stay rather than refused it, so of course it never got here, and the way they looked at what the issue of substantial was to consider whether an application for special leave might be granted.  That is set out – I did provide a copy of this electronically to the – your Honour, and of course it was a different Bench and it goes – it was Justices of Appeal Redlich and Mandie, and paragraph 5 which is on page 2.

HER HONOUR:   Yes, I see that.

MR DE SIMONE:   Yes.  Your Honour, it is my submission that there is absolutely a dearth of any evidence that the prosecution has properly considered the prosecutorial discretion.  In fact, there is evidence to the contrary and that is that one of the three charges on which I was arraigned was the very day after the certification of an interlocutory appeal was refused, the very day after that, that is, 15 February, that the charge of perjury, which had been hanging over me since March 2009, was resolved by the Crown conceding that at its highest their case was such that the primary judge would not fall into error if he were to accept – if upon the Crown’s case at its highest, that is, before there had even been any questions asked, that there was no case to answer.

Now, that sort of concession is – and therefore and accordingly what occurred was that I was formally arraigned under section 206. The Crown chose to lead no evidence – 206 of the Criminal Procedure Act - the Crown chose to lead no evidence and I was acquitted, that is, there was a finding of not guilty put on that charge.  The material which the prosecution had been relying on had been in the prosecution’s possession prior to the committal.  Through the whole course of the committal they had heard the material and read the material yet they had continued with that prosecution.

So, objectively, on at least 33 per cent of the charges which I faced the prosecutorial discretion had miscarried, and somewhat spectacularly.  It can hardly be said that there was a reasonable prospect of success, which is the terms used both in policy 2 and in the model litigant policy, policy 15, that is, that the State will not prosecute matters where there is no reasonable prospect of success, where there was a concession by the counsel for the prosecution that that was a matter where a no case submission, if found in favour of the – if made by the accused and found in favour of the accused, would be a matter where there would be no legal error.

Now, it is a matter which did not even get to section 201, which is the start of a trial was knocked out beforehand and, in my respectful submission, if it had been heard before the application for a permanent stay of the other charges, there may well have been a slightly different prism with which the court, a county court and primary judge would have considered the issue of the assertion by the prosecution that because they were continuing the prosecution, they must have considered the prosecutorial discretion in the absence of any such consideration.

So, your Honour, is this an exceptional case?  I say it is.  Is there a reasonable prospect of special leave being granted given that I have not put in my submissions in relation to that – and I have not finalised those submissions is a good reason for not putting them and they are not yet due.  There needs to be a certain element of conjecture in the way the Court approaches it.  Obviously, if I had the time and the trial was not starting until after 20 April when those submissions were due, the Court would have before it the full written case on which the application would be made, but it does not.

So what I say is this.  This is my last shot at having my application for a permanent stay considered.  It is a right to seek special leave to appeal to this Court.  If this Court grants that right, then the trial itself will eventually not be held at all.  I am grateful again for the extract by learned counsel for the respondent of what the relevant considerations are and they are set out at 3, 3.3 and 3.4.  This is in terms of construing the interlocutory appeal. 

Is the decision of sufficient importance to the trial to justify it being determined on an interlocutory appeal? Well, whether a trial is held or not is a rather foundational matter. I think it must be a matter of sufficient importance, self‑evidently, and then in determining whether special leave will be granted, assuming that the certificate were issued, the considerations set out in 3.4 apply, or there will not be – it says the disruption will delay the trial process. Well, there will be some delay to the trial process, but that is only the delay while the rights are exercised, but there is no disruption to the trial process apart from the delay because the trial itself has not commenced under section 201 of the Criminal Procedure Act.  No jury has been empanelled and I have acted with great expedition in seeking to have this issue dealt with.

Now, the determination of the appeal against the interlocutory decision may well render a trial necessary.  That is 297(1)(b)(i).  So therefore it is a matter which is (a) of sufficient importance and may well render that a trial is necessary because obviously a permanent stay would do so.  What it would do is it would achieve the interests of justice, that a person not be required to go to the expense, trouble, stress, anguish, all those other words, of being a defendant in a criminal proceeding if it should not have been held at all.

Now, in relation to the balancing exercise which is set out in the judgment in Jennings Constructions, respectfully, the prejudice to me is far greater than the prejudice to the respondent.  The way that prejudice to the respondent is set out at paragraphs 5.1 and 5.2, in the absence of any evidence whatsoever, is not that there will be but there is a sense that, first of all, there is assertion there has been a long delay in these proceedings coming to trial.  Well, none of that is my fault. 

“It is a complex case and will take some time.”  Well, that is exactly right.  It is a complex case and it will take some time so therefore there will be a great cost to the accused and to the State.  In the situation where a trial should not be held at all, the other people waiting in the queue will be inconvenienced, both the complainants and the public who have a right to have people who are guilty of offences punished and the innocent people who have a right to have their trial heard so they can be exonerated.

Now, there is a comment, “If the trial does not proceed there may be a substantial disruption to the County Court calendar” - it does not say there will be.  It does not provide any evidence of that and “it may cause inconvenience to the other cases waiting in the list.”  Well, it might also bring other cases forward.  Then it goes on to say, “Further delay will mean the need to organise and arrange witnesses again.”  Well, that is a bunch of phone calls.  “It will also involve inconvenience to those witnesses.”  Well, a large number of those witnesses wish they were never going to have to go to court.  I think from their viewpoint, if the trial was not held, it will probably be the best thing.  The complainant may have a different view and the complainant’s staff might have a difference view, but from the viewpoint of the other witnesses the inconvenience is they have to give evidence on a different day to the day which they were told they might have to give evidence.

By contrast, I may have to go through a trial – sorry – not I may have to go.  I would be required to go through a trial which might not need to have been held at all and where, in terms of the prosecution’s track record so far in terms of the success of its charges, I faced 11 charges, nine have gone, two remain and they have passed only the committal standard which is far lower than the standard required in the exercise of prosecutorial discretion.  I presume your Honour is aware of the Victorian standard for a matter proceeding from a committal to trial.

HER HONOUR:   Yes.

MR DE SIMONE:   So I will not repeat it, but it is lower than it is in New South Wales and far lower than a reasonable prospect of success which is the test required by the prosecutorial discretion and by the model litigant rules.  So therefore, your Honour, respectfully, the prejudice where the balance of convenience lies, in my respectful submission, lies with me as the accused, as it always should where there is – for example, the right to be tried without unreasonable delay is a right of the accused.  It is an obligation imposed on a prosecution. 

I am coming to you seeking a delay effectively knowing that if the application for special leave is refused or if the application for special leave is granted and the appeal was refused, the matter would then go back to court and I will have a delayed trial, which of course I do not want.  I mean, if I am to have a trial I would rather have a trial starting next Wednesday than a trial starting April next year if the matter goes through the whole appeal process. 

One of the considerations is that, as was set out in the submissions below and in the material which was given to the Director as a reason why the prosecution should not continue, is that significant key witnesses have already forgotten, and despite extensive prodding at committal, their memory was not refreshed.  Again, your Honour, material which would be in the written case for special leave would go through who those witnesses are and so on and why they are important to the defence case.

This has been a nightmare of nearly five years.  It is now April 2012.  I was first aware that I was being investigated by the police as a result of a complaint by a former police officer in May 2007.  The original civil matter in which this criminal prosecution commenced has been a nightmare of six years duration.  While I agree very much with President Kirby, as he was then before he became a member of this honourable Court, that there is a primacy of criminal proceedings over civil proceedings, the criminal proceedings commenced after the complainants were unsuccessful in seeking to have the civil proceedings decided in their favour.  The civil proceedings had been very hard fought for a very large number of interlocutory steps by both sides. 

Again, one of the matters in the prosecutorial discretion is, when looking at the public interest, is whether the complainant has other remedies available and, self‑evidently, the complainant does.  While admitting that there is a public interest in people who commit crimes being prosecuted, given the limited resources of the judicial system, a complainant that has redress should be given a lower priority than a complainant who does not.

In the area of human rights, your Honour, as I am sure you are well aware, the measure of a civil society and a just society is how it treats two classes of citizens:  those that are most vulnerable and also those that are most despised.  As an accused person I think I fall into the latter category rather than the former at least and if we were to look at that classification, there is a view in this country that all us being equal, people who are charged are charged for good reason. 

While there is a legal presumption of innocence, there is a public opinion presumption of guilt, not least of which driven by the media.  The invocation of a permanent stay would help redress that public perception.  Many of my fellow Italians have been the subject of trials in which they have been acquitted, but public opinion still holds them responsible for the crime for which they have been acquitted.  It will be far preferable, in my view, for a permanent stay to be granted than for an exoneration at trial for that very reason. 

So, your Honour, in summary, balancing the matters set out by his Honour Justice Brennan of this honourable Court in 1986, without the prism of the Charter and the way that might operate in relation to the stay application and without the prism of it being a criminal rather than a civil matter, without the prism of it being a matter where there has been no final determination of guilt or innocence and that it is an interlocutory matter, the way the High Court, this Court, expressed it in Marconi’s Case as the question really is the preservation of the rights of the parties without disregard of the balance of convenience is, I think, the correct view, respectfully, and his Honour Justice Brennan was right when he said that the preservation of “the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction” with exceptional circumstances having to be shown “before its exercise is warranted”.

Exceptional circumstances, your Honour, I believe have been shown.  The word “extraordinary” is one of those interesting words.  It is different to “exceptional”.  It means it is something that does not occur ordinarily.  Well, it does not ordinarily occur that, having made an application for a permanent stay, that the trial was held before an appeal on that decision not to grant a permanent stay can be heard.  I think that is rather extraordinary and it also is exceptional. 

I believe where his Honour Justice Brennan said the prospect of a grant of special leave is – where he said “I do not, however, think that the prospect of a grant of special is insubstantial” is the way his Honour viewed the issue of the substantial prospect, which he mentioned in the immediately preceding paragraph.

His Honour was not saying that what had to be demonstrated before you today was that there was a good chance that the application for special leave would be granted, but I think something slightly lower than that.  It was not an ephemeral chance.  It was not a totally fatuous application without merit.  The time this Court will determine that, your Honour, is sometime after 20 April when it has the full written case and, in my respectful submission, you should, given that it is a criminal matter, that the consequences of not granting the stay are so significant for me in that I will definitely be put to the expense and stress, both on myself and on my family, and the humiliation of a public trial, is to grant the stay in the form which I have sought it.

Your Honour, I have sought to cast it very narrowly in order to minimise the inconvenience to this honourable Court and to the respondents.  As your Honour is aware, the application for special leave can be dismissed pre‑emptively under rule 41.10.5.  If material is not filed by 20 April, which is only two weeks away, two and a bit weeks away, there is a deemed abandonment, so effectively the stay will automatically be lifted if I was late in providing the material under rule 40.10.4.1.  So we are talking about a stay which places the burden on me to be timely and prompt.

So I am aware that, in terms of my position, 20 April is the deadline which I have to meet and I am making it so, because otherwise the stay will automatically lift.  Also, this Court can, without any hearing, dismiss the application for special leave to appeal under rule 41.10.5 and that can occur quite quickly and I believe it does occur quite quickly from my inquiries with the Registry.  That is where Justices of this honourable Court review the written material and say, well, this is not worth going to a hearing.

Then, assuming that those two hurdles are met, which both can occur quite quickly, the determination of the application for special leave to appeal under rule 41.11 it would be scheduled by the Registry in one of the circuits and it would be determined presumably, I think, in the July circuit or the August circuit.  So we are talking about a relatively short stay. 

Where, your Honour, the Crown at the committal got a six‑week adjournment of the committal so counsel for the Crown could go on a holiday to Italy, I would be somewhat aggrieved if I was not given a stay, at least until 20 April or shortly thereafter, assuming that I put the material in, for this Court to actually consider the merits of my case on the basis of the material which was filed within the proper time, given that it is a very short period of time.

Obviously, your Honour, if it is not dismissed under rule 41.10.5, in my respectful submission, it means that there was a substantial prospect that the application would have been granted, so we are not having to wait a long time.  So it is not a very long stay and that goes to the balance, as your Honour pleases.

HER HONOUR:   Thank you very much.  Yes, Mr Gyorffy.

MR GYORFFY:   Your Honour, I have set out some reasonably full submissions and I adopt those.

HER HONOUR:   Yes, I have read those.

MR GYORFFY:   If I get straight to the point, the essence of what Mr De Simone is saying to this Court is that he will never be able to agitate this issue of the Charter unless he gets to get it before an interlocutory appeal. That is simply not right. The appellate system in this country works on the basis that the appeal is generally brought after the trial and after sentence. That is the standard form of appeal throughout the country modelled on the Court of Appeal in England in its original jurisdiction.

What we have here with these interlocutory appeals is a possibility, not a right.  It is not a new form of appeal, it is not another right that an accused has.  What it gives is a possibility to take out a case which is totally flawed – which a court recognises, effectively, has been totally flawed.  It is akin to summary entry of judgment in a civil proceeding.  The case can be identified clearly as being one that is going nowhere. 

Momcilovic itself is an example of a case which went to trial and Charter issues were brought up in both the Court of Appeal and the High Court and dealt with. So the remedy that the applicant actually has is the ordinary appellate remedy. What he is trying to do here is say “I should be entitled to have a second – or a first bite at the cherry, before the second bite – and go in front of the Court of Appeal in an interlocutory appeal”. Well, it is submitted there is no such right.

If your Honour looks at paragraph 3.4, they are the factors that have to be taken into account by the Court of Appeal when considering the grant of leave in an interlocutory appeal.  If your Honour looks at them, the catalogue of matters there are aimed at the administration of justice in a timely way and the management of the resources of the courts, both the Court of Appeal and also the courts hearing indictable matters, whether it is the Supreme Court or the County Court.  It is only if the court is persuaded that there is, in the circumstances, an advantage in the administration of justice to take this summary procedure that it is adopted. 

Now, in this instance the trial judge, who was on top of everything, said “No, I’m not going to certify this matter for an interlocutory appeal”.  What happened then was it was not an application for leave for an interlocutory appeal.  The review that occurred in the Court of Appeal was a review of the refusal of the judge to certify.  That was dismissed principally on the grounds set out in the judgment that there were insufficient prospects of success, putting it another way.

The foundational point for bringing anything into this Court, your Honour, is that; it is the review of the refusal to grant a certificate.  It is not the substantive matter.  It is not the hearing of the interlocutory appeal.  It is purely and simply the refusal to grant that certificate and then the refusal to reverse that decision.  It is, in fact, a very, very limited matter and, in my submission, the only option this Court would have, should such an application succeed, would be to send the matter back to the Court of Appeal on the basis that a certificate is granted, go into the interlocutory appeal and consider the matters that are set out in 3.4.

That is in the context where those matters can be raised before the court in a normal appeal and that is in the context where there were very, very tight timelines for bringing interlocutory appeals and that is in the context where the criminal law has always felt that fragmentation of criminal proceedings should not occur and should be restricted.  That is recognised in paragraph 3.4, in section 297(1)(a).  So it is submitted that what this Court would be looking at would be of such limited scope that it does not fit into the types of matters that this Court gives special leave for. 

In section 35A of the Judiciary Act a number of criteria are set out.  This does not raise any of them.  This is not the stuff of a special leave to appeal to this Court.  It does not raise issues of conflicts between judgments of courts of different States.  It does not raise issues of the conflict in the judgments within a particular court.  It does not raise, if one looks at the grounds of appeal, any matter of public importance.  In terms of the justice of the case, it is submitted that justice of the case can be appropriately served by going through the normal processes of the trial and then the normal appeal processes applying from thereon.

So that is the reason, your Honour, why it is submitted that the prospects of success here are insubstantial.  This Court only has the capacity to hear a limited number of cases each year.  There are a lot of very meritorious cases where errors have occurred that have come here for special leave and not been able to get it because of the workload of this Court.  This case just would not get through the eye of the needle, your Honour.

The other matter that I deal with, which was said this morning, was the exercise of the prosecutorial discretion, in particular, the reasonable prospects of conviction.  Reasonable prospects of conviction, your Honour, do not mean that the prosecutor gets it right every time and there is a 100 per cent success rate in convictions.  That phrase “reasonable prospects of conviction” is exercised within a judicial system in which the jury is the pre‑eminent fact finder.  The role of a prosecutor in such a situation is not to guess what the jury would do.  It is to analyse the evidence and say, well, a reasonable jury charged, on that evidence, could convict, but you do not usurp the function of the jury and decide whether the jury will convict.  That is not the way it works. 

If the prosecutor did that then the jury system would almost become redundant and yet it is the jury that we go to for our decision making.  In exercising that discretion Mr De Simone has put in, as part of his materials, the policy guidelines of the Director.  There are lots of factors that come into play.  You do not charge every charge that is possible to be charged.  You make an analysis on the basis that where does the gravamen of the offence lie.  What is a sufficient number of charges to prosecute in order to achieve the justice of the situation?  You take into account things like how will it be presented to the jury, will it become too complicated if I go into too many alternatives.  So it is not a black and white thing of you look at each charge, reasonable prospects, conviction.  No.

At the start of these proceedings it is the police who draft the charges that are looked at at committal.  The prosecutor only gets to it after the committal and after looking at the evidence in the committal brief and the depositions and it is then that the decisions are made.  Now, I hear Mr De Simone saying that is not right.  Well, that is the way it works, your Honour, because I do it every day.  That is the way it works.  Sometimes there might be a request from the police to help draft a charge, but that is very rare.

So what this comes down to, your Honour, is that Mr De Simone is not losing a right to raise these issues.  He has that as part of a normal appeal process.  The most that he has lost here is the ability to have the matter determined in an interlocutory appeal.  The Court of Appeal considered that this was not an appropriate matter really for that to occur.  In my submission, there is nothing in the decision of the Court of Appeal here that is wrong in law that should invite any review in this Court.  If it please, your Honour.

HER HONOUR:   Thank you.  Yes, Mr De Simone.

MR DE SIMONE:   Your Honour, I will be very brief.  If your Honour refers to the Prosecutorial Discretion Policy No 2 and paragraph 2.1.3, which is on page 1.

HER HONOUR:   Yes, I have that.

MR DE SIMONE:   Yes:

the existence of a bare prima facie is not enough. 

It is not where a jury might convict.  In fact, 2.1.4 makes that further clear.  It says:

requires an evaluation of how strong the case is likely to be when presented in court.

Further on, in that same paragraph at 2.1.4, that is in the second of the paragraphs in 2.1.4, it says:

application of this test dispassionately after due deliberation by a person experienced in weighing the available evidence, is the best way of seeking to avoid the risk of prosecuting an innocent person and the useless expenditure of public funds.

There is an evil in prosecuting cases where people are found not guilty and it is recognised by policy.  The application of the model litigant guidelines, your Honour, which the Director has bound himself to, in paragraph 15.2.1:

It is the Director’s Policy that the Office of Public Prosecutions will at all times behave as a model litigant –

is that there has to be a reasonable prospect of success. Now, “reasonable” does not mean a guaranteed prospect of success. In the light of what the policy says, it has to be a case which is objectively demonstrated to be strong. Your Honour, while I can agitate Charter issues in the event of my conviction, I can never agitate that I should never have been charged and put to the expense of a trial in the event of my acquittal. That is the real tragedy and prejudice to me, that if I win after trial, I get a finding of not guilty and very large bill from my lawyers and all the expenses on me and the State will have been wasted and unrecovered.

I will never again be able to agitate – because it is not going to be a relevant issue to any appeal on a finding of conviction whether the prosecution should have been held in the first place or not.  Those matters will all have fallen by the wayside.  Yes, there is an opportunity to advocate, as Momcilovic did, Charter issues in relation to the jury directions or the applicable law or even, if special leave was granted, to seek leave to add grounds of appeal which were not agitated below.

All those things are available, but they are not available, and it goes to the issue which I am seeking to agitate – I have been seeking to agitate it since December 2009 formally and prior to that, informally, that this is not a matter which should go to trial because it does not meet the Charter standards that are imposed on the public authorities who have made the decision to prosecute, that is, that they have not, in taking into account the presumption of innocence to which I am entitled, taking into account the right to equal treatment in section 8, taking into account the question of damage to my reputation of being charged and having a trial and the attendant publicity, taking into account the damage to my privacy, taking into account the fact that my freedom of movement is being restricted, taking all those matters into account which are Charter rights and are all impacted, whether it is still demonstrably justified because of the strength of the Crown case objectively, not the prima facie nature of the Crown case, which really is not much different to what the committal standard in Victoria is, whether it is worth the candle, to use the vernacular.

Those rights, if the stay is not granted, to have those matters agitated will be closed against me forever.  It is a matter, in my respectful submission, of public interest what the proper conduct of the Office of Public Prosecutions and the Victorian Police should be when an allegation is made or a submission is made that the prosecutorial discretion should be exercised against a prosecution continuing.  Once that is enlivened, are we to give meaning to the term “demonstrably justified”?  Is the right meaning the meaning which the Supreme Court of Canada in Oakes Case gave it roughly the same time as his Honour Justice Brennan was pronouncing on the Jennings Case – they are both about 20, 25‑year‑old cases – or should it be given its ordinary meaning or should there be some Project Blue Sky meaning where it seeks to give an understanding in the life of legislative intent.

The purposive basis of the Charter was and remains setting a standard of a free and democratic society where rights of citizens are respected, even accused persons. I do not have any other opportunity, other than today, your Honour, to agitate those rights, to be left alone and not to be put to the expense of a trial. They will be gone forever and that, I believe, your Honour, is not just of interest to me, but it is of interest to every person who will be accused of a crime and what the obligation of the public instrumentalities that take those matters to court ought be in relation to that.

There is, of course, also the other aspect which is, what exactly is the section 6 obligation of, obviously not this Court, but the Court of Appeal

and the County Court in relation to the function of protecting those rights?  The reason why this matter is relevant is because it clearly falls within what the Parliament expressed in the interlocutory appeal process as being the important considerations and one of them is whether the trial would be rendered unnecessary as a factor militating in favour of leave being granted.  Most self‑evidently, if a permanent stay is granted, a trial is rendered unnecessary. 

The right to seek a permanent stay exists in the inherent jurisdiction of the courts to prevent an abuse of their processes. With the layering of the Charter over that fundamental inherent jurisdiction, it is at least, in my respectful submission, arguable that the onus has shifted from the person seeking to assert wrongdoing to demonstrate that wrongdoing or the requirement for a permanent stay to the Crown as the instrumentality – in this case the Director of Public Prosecutions and the Victorian Police – demonstrate that prosecution ought continue. As your Honour pleases.

HER HONOUR:   Thank you.

The applicant was charged on indictment with three offences: obtaining a financial advantage by deception, publishing a false statement as a director with intent to deceive a creditor of the company, and perjury. Shortly before the commencement of his trial in the County Court of Victoria in relation to those offences, the applicant applied for a permanent stay of the proceedings on the following grounds: that the charges were brought for an improper purpose; that the charges were brought in breach of section 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”); and, alternatively, that the legal foundation of the charge of perjury had not been established. Pursuant to section 206 of the Criminal Procedure Act 2009 (Vic) (“the Act”), an entry of not guilty was made on the record in respect of the charge of perjury.

On 14 February 2012, in the County Court the trial judge (Judge Howie) ruled on the first two of these grounds and dismissed the applicant’s application for a permanent stay. On 15 February 2012, in response to a further application by the applicant, the trial judge refused to certify, pursuant to section 295(3)(b) of the Act, that his decision to refuse a permanent stay was of sufficient importance to the trial to justify it being determined on an interlocutory appeal, on the basis that the decision was not attended by sufficient doubt to warrant an expedited review.

The applicant applied to the Court of Appeal for review of the trial judge’s refusal to certify.  On 16 March 2012, the Court of Appeal of the Supreme Court of Victoria (Warren CJ and Buchanan JA) dismissed the applicant’s application on the basis that the trial judge’s decision was not attended by sufficient doubt to warrant the grant of a certificate.  The Court of Appeal also refused an application, made orally, for the stay of the applicant’s trial.

On 23 March 2012, the applicant applied to this Court for special leave to appeal against the judgment and orders of the Court of Appeal.  That same day, the trial judge set down the applicant’s trial to commence on 11 April 2012 and declined to adjourn the hearing of the appeal until the determination of the applicant’s application for special leave to appeal to this Court.  By a summons filed on 30 March 2012, the applicant now seeks an order from this Court that the trial scheduled to commence in the County Court on 11 April 2012 be stayed until the hearing and determination of the applicant’s application for special leave to appeal. 

By letter dated 2 April 2012, the Victorian Government Solicitor’s Office has advised that the Attorney‑General would not intervene in this proceeding under section 34 of the Charter. By letter dated 4 April 2012, the Victorian Equal Opportunity and Human Rights Commission has advised the Court that it will not be seeking leave to intervene in this proceeding in relation to issues arising under the Charter.

The respondent has appeared by senior counsel, Mr Gyorffy, to oppose the application, principally on the basis that the application for special leave concerns an interlocutory decision in a criminal proceeding and it is undesirable to fragment a criminal proceeding. 

The relevant legal principles are well established.  In Fuller & Cummings v Director of Public Prosecutions (Cth) (1994) 68 ALJR 611 at 614, McHugh J said that:

The jurisdiction of this Court to order a stay of criminal or committal proceedings in other courts pending the hearing of a special leave application is undoubted.

However, as his Honour went on to note, “it is a jurisdiction that is rightly recognised as extraordinary and one that will be exercised only in the most exceptional circumstances.” 

In Beljajev v Director of Public Prosecutions (1991) 173 CLR 28 at 31, referring to an earlier observation in Edelsten v Ward [No 2] (1988) 63 ALJR 346 at 346 that “[s]omething quite exceptional must be shown” before the Court will exercise its inherent jurisdiction to grant a stay, Brennan J stated that:

This must be so, particularly in the case of interlocutory applications in a criminal jurisdiction –

and noted that –

The jurisdiction of this Court is not fitted to the supervision of interlocutory processes of a criminal trial.

On a review of the trial judge’s refusal to certify, the Court of Appeal must consider matters referred to in section 295(3) and, if satisfied, as required by section 297 of the Act, the Court of Appeal may grant an applicant leave to appeal against an interlocutory decision. However, if the Court of Appeal refuses leave to appeal, under section 297(3) “the refusal does not preclude any other appeal on the issue that was the subject of the proposed appeal”.

The affidavit filed by the applicant in support of the application for a stay pending a hearing and determination of an application for special leave to appeal contains a chronology of the applicant’s efforts to obtain a permanent stay.  The written submissions filed in support of the application have been considered in the light of the established principles referred to above.  The submissions traverse a number of matters, some of which are not relevant and repeat complaints advanced before the trial judge and rejected by him.  The written submissions do not contain any cogent reason why the applicant’s circumstances should be treated as exceptional.

Oral submissions focused principally on a complaint that the trial judge erred in placing a burden of proof on the applicant in respect of allegations of breaches of the Charter. It should be noted that the particular points which the applicant seeks to raise in respect of the Charter do not, in my opinion, give rise to exceptional circumstances. However, the applicant’s critical submission for present purposes, which was repeated orally, is that, if no order is made, his right to seek special leave to appeal and, if granted, appeal, will be rendered nugatory.

The applicant contended that the circumstance that the original application to the trial judge was for a permanent stay based in part on alleged breaches of standards in the Charter is itself an exceptional circumstance. The determinative consideration in the context of that submission is that the decision, the subject of the application for special leave to appeal, is the decision of the Court of Appeal to dismiss an application for review of the trial judge’s refusal to certify that his refusal to grant a permanent stay was of sufficient importance to the criminal trial to be determined in an interlocutory appeal.

This Court has drawn attention repeatedly to the undesirability of fragmenting the criminal process by granting special leave to appeal from interlocutory decisions[1].  On the materials before me there seems little prospect that the applicant will establish sufficient prospects of success to warrant a grant of special leave in respect of the decision of the Court of Appeal.  In any event, a refusal to grant special leave to appeal from an interlocutory decision in a criminal proceeding does not prevent an applicant from raising the issues, the subject of the application, in any substantive appeal against conviction in the event that the applicant is convicted.

[1] See, for example, Yates v Wilson (1989) 168 CLR 388. See also R v Iorlano (1983) 151 CLR 678; R v Elliott (1996) 185 CLR 250; and Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 133 [23].

In these circumstances, there is no basis which would justify the grant of a stay of the applicant’s trial pending the hearing and determination of the application for special leave to appeal.  The application is dismissed.

Adjourn the Court.

AT 11.33 AM THE MATTER WAS CONCLUDED