Fletcher v Harris

[2006] HCATrans 226

[2006] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Registry  No C16 of 2005

B e t w e e n -

GRAHAM WALTER FLETCHER

Applicant

and

STEPHEN NOEL HARRIS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MAY 2006, AT 9.30 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant was charged with an offence of failure without reasonable excuse to leave premises on being directed to do so by a person acting with the authority of the occupier contrary to s 11(2)(c) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). That charge arose out of the applicant’s refusal to leave the NRMA premises in Woden in the Australian Capital Territory on 15 April 2002 upon being requested by a staff member to do so following verbally abusive conduct on his part. Following a trial in the Magistrates Court of the Australian Capital Territory in which evidence was led from NRMA staff members and also in the form of a copy made by the police of a tape recording of the incident made by the applicant himself, the magistrate found on 17 May 2004 that the offence had been proven.

On appeal by the applicant to the Supreme Court, Higgins CJ on 18 April 2005 affirmed that the finding of guilt in respect of that charge was open.  A further appeal to the Court of Appeal on 9 November 2005 was unsuccessful.  Crispin P (with whom Gray and Marshall JJ agreed) held that the tape recording was admissible and that it was open to Higgins CJ to find that the evidence before the magistrate was sufficient to support the finding of guilt.  The ultimate order made by the Court of Appeal (after allowing a cross‑appeal by the respondent directed to the form of orders made by Higgins CJ) was to record an adverse finding but to dismiss the charge upon the applicant entering a recognizance in the sum of $200 to be of good behaviour for a period of 12 months to 18 April 2006.  That order was not however entered, being set aside by the Court of Appeal the same day it was made and replaced with an order convicting the applicant and fining him $200 in lieu of the recognizance.  The conviction occurred because the applicant refused to sign the recognizance. 

The application for special leave to appeal relies upon numerous vague procedural and evidentiary grounds said to support the proposition that the evidence before the magistrate did not justify a conviction.  In particular, the applicant alleges that the findings of guilt were based upon the copy of the tape recording which he claims was tampered with by prosecuting authorities who also denied him access to it so preventing him from making objections to it before the magistrate.  The applicant has been unable to point to any error of law in the reasoning of the Court of Appeal that the evidence of the tape was admissible and that it was open to Higgins CJ to find that the evidence before the magistrate was sufficient to support the finding of guilt.  There would be insufficient prospects of success to warrant a grant of special leave from the decision of the Court of Appeal in these proceedings.  Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.33 AM THE MATTER WAS CONCLUDED