Ferguson v The Queen & Anor

[2009] HCATrans 16

[2009] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B27 of 2008

B e t w e e n -

DENNIS RAYMOND FERGUSON

Applicant

and

THE QUEEN

First Respondent

THE HONOURABLE THE ATTORNEY‑GENERAL OF QUEENSLAND

Second Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 FEBRUARY 2009, AT 10.17 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   May it please the Court, I appear for the applicant with my learned friend, MR P.E. SMITH.  (instructed by Fisher Dore Lawyers)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with MR M.J. COPELY, SC on behalf of the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes, Mr Callaghan.

MR CALLAGHAN:   Our draft notice contains three grounds, each of which involves a question of law which has public importance.  We propose to address them in reverse order, and commence with the question as to whether the decision of this Court in Doney v The Queen 171 CLR 207 has any relevance to a court which is considering an application for a stay of proceedings.

The starting point is the order for the stay and the reasons for it.  The critical passage of the application book is at page 28, lines 23 to 45, and especially lines 30 to 40.  That is where his Honour concluded that a stay should be granted in this case and gave his reasons for it.  The structure of the sentence and the use of the conjunctive is important.  His Honour there lists a number of factors, the cumulative effect of which led him to the conclusion that a stay had to be to be granted.

One such factor was the weakness of the Crown case.  His Honour’s analysis as to the strength of the evidence has not been challenged and was reproduced in the judgment of the Court of Appeal at application book 38. Your Honours can read what is contained there.

Now, for a stay to be granted following the synthesis of this collection of circumstances is probably unusual if not unprecedented but, of course, the power to order a stay is not to be confined to closed categories and may be exercised as and when the administration of justice demands.  It must follow, in our submission, that there can be no limitation upon the matters to which a primary judge may have regard in this context, especially when such matters are being considered in conjunction with one another. 

The respondent, however, contended in the Court of Appeal and here that it is not open to order a stay in any case where there is some evidence which might support a conviction.  That was the ground of appeal in the Court of Appeal which appears in application book 32 at dot point 5, and it was the position adopted by the Court of Appeal at application book 55 and in particular in paragraph [61], where the Court held in this context:

Where there is evidence which might support a conviction –

the case must go to the jury.

HAYNE J:   Now, do you challenge what the Court of Appeal says in paragraph [64], particularly its last sentence?

MR CALLAGHAN:   We challenge paragraph [64], yes, because that is where the Court reflects in clear terms that it is this insistence upon following the procedure of assessing whether there is a case to answer in the sense discussed in Doney and then allowing, as it did in paragraph [63], that there is appellate procedure which can kick in after the trial.  The court there, in that paragraph [64], says: “Well, we have regard to those facts, and that’s all we need.  We don’t need a power to stay once the Doney threshold is crossed”.

HAYNE J:   That is not, I must say, Mr Callaghan, how I read it.  I read [64], particularly its last sentence, as pointing out that it is for the Executive to decide what and whether to charge and that the court should be slow to intervene in a way that would usurp the role of a trial.

MR CALLAGHAN:   Slow, indeed, but it is not precluded from doing so and it is not the decision as to whether the charge is laid or brought that is being reviewed, it is the use of the court’s processes to prosecute that charge that is under review and that is what the stay prevents, the abuse of the court’s process.  It has nothing to do with the power of the Executive to bring the charge in the first place.

HAYNE J:   Does your argument accept that there appears at the moment to be evidence fit to leave to a jury?

MR CALLAGHAN:   Implicitly, we must accept that but we point to the obvious deficiencies in the Crown case which are great indeed.  Indeed, his Honour allowed that there was a case fit to go to the jury.  He applied the Doney test to the letter, notwithstanding his grave reservations as to the strength of the Crown case.  He made a positive finding.

HAYNE J:   I think we grasp what you say about Doney.  Is that the point on which you place chief weight or do you need time to deal with the other two points that you make?  It is a matter for you, Mr Callaghan, how you present it.

MR CALLAGHAN:   Your Honour, I do need time but I will conclude this point by simply saying that Doney is a case of general application.  The cases to which we source a court’s power to order a stay are cases of general application.  The Court of Appeal has drawn these two lines of authority into the same arena and declared Doney the winner and that, we say, raises a real question of public importance.  We have had only, I suppose, that the two lines of authority have no business being in the same arena in the first place.

A further matter of public importance can be identified within the manner in which the Court of Appeal approached the review of his Honour’s discretion, and this is our second ground.  The clearest demonstration of the court’s technique is exposed by reference to application book 54 in paragraph [56] of the judgment of the Court of Appeal wherein it was characterised as an error the learned primary judge’s failure to advert to section 47 of the Jury Act.

The terms of that section are set out at application book 50 and, relevantly, we turn to subsection (1) which allows that this section, these procedures, are engaged only upon “an application by a party”.  Neither party before his Honour Judge Botting even suggested that this section might be operative.  In particular, and relevantly for these purposes, the Crown Prosecutor did not refer to it, make application under it or suggest that the defence should make application under it and yet the Court of Appeal has found, whilst reviewing the exercise of a discretion, that it was an error by the trial judge not to advert to it.

We say simply this, that if that is a legitimate approach to the review of a discretion then it may be good news for appellate lawyers but not so for the administration of justice.  If a primary judge is to be corrected on appeal for failing to do something that he was not empowered to do, then we submit that the process of appellate review is being taken across a new frontier and that that involves a question of public importance.

BELL J:   Mr Callaghan, we are here talking of the administration of criminal justice.  On the face of it, section 47 is addressed, in particular, to precisely the sorts of concerns that the applicant was raising in his application for a permanent stay, namely, the effect of prejudicial publicity on the capacity of the court to afford a fair trial to him.

MR CALLAGHAN:   Yes.

BELL J:   In those circumstances, true enough it is that it is necessary for a party to make application for section 47 to be engaged, but when a trial judge is being asked to make an exceptional order, namely, the permanent stay of a trial, in circumstances where the applicant has not sought to avail himself of that mechanism, is that not a matter that the trial judge might properly take into account, whether the Crown happens to raise the matter or not?

MR CALLAGHAN:   It might, but it cannot be said to be an error that he does not.  We come back to what we are concerned with here, which is review of a discretion; that is what the Court of Appeal was doing.  Section 47 no doubt is something which is going to be engaged in cases of this nature, and no doubt it would be a good idea for everyone to be alive to it, and had the Court of Appeal in obiter made that suggestion that would have been a good thing, but they did not.  They made it a part of a finding of error.  We say that, in context of the review of discretion, was simply not open.  As we say, it is not part of the process of reviewing a discretion to impute these sorts of obligations to the decision‑maker.

Of equal importance we say to our second point is the first one that we have made on the notice of appeal, of equal importance at least to the administration of justice in Queensland, and that concerns the powers of the Queensland Court of Appeal.  In elaboration of this ground we must go to the statute itself, which is the Criminal Code (Qld), and to section 669A(1A), which was the provision under which the appeal was brought to the Court of Appeal.

HAYNE J:   Now, can I just get you to the bottom line, Mr Callaghan?  Is your bottom line the Court of Appeal has power to hear it but no power to do anything following the hearing?

MR CALLAGHAN:   Yes.

HAYNE J:That is a rather startling proposition, Mr Callaghan.

MR CALLAGHAN:   It is.  It is, your Honour.  It is a startling omission from the statute.

HAYNE J:   It is a proposition which if true, I think, may have application to the Court of Appeal’s powers in civil appeals, may it not, because there, I think, the court is given jurisdiction by the Supreme Court of Queensland Act in relation to civil appeals, but I do not think the powers of the court on appeal are then specially set out?

MR CALLAGHAN:   We have not addressed that, your Honour.  We have confined ourselves to the statute with which we are concerned, and it is to the terms of that statute that we say regard must be had for the purposes of determining the powers of the court.

HAYNE J:   So it can hear the appeal and then adjourn and that is all?

MR CALLAGHAN:   Well, we ask the question, wherein lies the power to set aside the regularly made, ostensible binding order of another court in the

absence of specific statutory grant of power to do so?  We illustrate the point by reference to the other parts of the section which create other powers of appeal, or other rights of appeal rather, and provide for specific power by which they might be disposed, the other parts of section 669A itself.  We have taken, in the written submissions, you through the rights of appeal and the concomitant powers to dispose of them.  There is no such power attributable to the right of appeal granted under 669A(1A).

The point is simply made and, with respect, we agree…..  We are sure that Parliament’s intention was that the court should have a power, but we make the point, if it does have a power what is the nature of that power?  The Court of Appeal has asserted that it is an appeal in the strict sense.  Well, we ask why that is necessarily so when the other rights of appeal granted by the section contemplate the exercise afresh of discretions which were being reviewed.

There was no reason, we say, if the court was empowered to dispose of the appeal why it could not do that.  No reason why it could either because our principal submission is that there was no power at all.  If there was a power we respectfully ask, well, what was its nature, and how was it that the Court of Appeal defined it as being an appeal in the strict sense?  We have made all of those points in our written submissions and do not propose to labour them further in oral argument unless your Honours wish any point clarified.

HAYNE J:   Thank you, Mr Callaghan.  Mr Solicitor, we will not trouble you.

The applicant’s argument that section 669A(1A) of the Criminal Code (Qld) conferred jurisdiction on the Court of Appeal of the Supreme Court of Queensland to hear the appeal instituted by the Attorney‑General, but did not give the Court of Appeal power to make any order disposing of that appeal, is an argument that would enjoy insufficient prospects of success in this Court to warrant a grant of special leave. It being not disputed that there is evidence fit to be left to a jury, questions about the intersection between what is said in Doney v The Queen (1990) 171 CLR 207 and the power to order a stay would not arise. Finally, questions about review of the exercise of discretion raise no point suitable to a grant of special leave. This Court has repeatedly pointed to the need to avoid fragmentation of the processes of criminal justice that follow from appeals against interlocutory decisions. See, for example, R v Elliott (1996) 185 CLR 250.

Special leave is accordingly refused.

AT 10.34 AM THE MATTER WAS CONCLUDED