Fuller & Anor v The Commonwealth Director of Public Prosecutions

[1994] HCATrans 469

ffl ~~!;}':tr_~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A22 of 1994

B e t w e e n -

MICHAEL JOHN FULLER and JOSEPH

PATRICK CUMMINGS

Applicants

and

THE COMMONWEALTH DIRECTOR OF
PUBLIC PROSECUTIONS and

FREDERICK R. FIELD SM

Respondents

Application for special leave
to appeal

MASON CJ TOOHEY J McHUGH J

Fuller 26/8/94

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 26 AUGUST 1994, AT 12.35 PM

Copyright in the High Court of Australia

MR K.V. BORICK: If the Court pleases, I appear with my

learned friend, MR D. EDWARDSON for the applicant.

(instructed by the applicants, Mr M.J. Fuller and

Mr J.P. Cummings)

MR S.W. TILMOUTH, QC: If the Court pleases, I appear with

my learned friend, MR S.F. VORREITER for the

respondent. (instructed by Commonwealth Department

of Public Prosecutions)

MRS. WALSH, OC: If the Court pleases, I seek leave to be

heard amicus curiae with my learned friend,

MR C. CALDICOTT for the Law Society of

South Australia. (instructed by Caldicott & Co)

MASON CJ:  Now, Mr.Walsh, it seems to me that we ought to

ask you to standby.	We will see how the argument
develops.	If need be you can renew your

application at a later and appropriate time.

MR WALSH: If the Court pleases.

MASON CJ:	Yes, Mr Borick?
MR BORICK:	It is our submission that the issue is of more

than sufficient public importance to warrant the

grant of special leave. Your Honour, perhaps I

should sort out the position with respect to the

affidavit that we were seeking to tender, to which

we propose to address argument, not in any detail,

but simply to give the Court an indication of what

has been happening since the application for a stay
was refused by Justice McHugh and then the

committal process started to get underway.

TOOHEY J: Is that a document we should have, Mr Borick?

MR BORICK:  I understood that the affidavit had been filed

with the Court.

MASON CJ: We do not have it, at least I do not have it.

MR BORICK: Perhaps, Your Honour, I could just tell you

briefly what it is about. The committal got under

way and it is, in effect, a record of what has been

happening since the stay application, and we have a

number of complaints about the process that has

taken place there. It has been very - - -

MASON CJ:	But why should we be concerned with that?
MR BORICK:	The only reason for concern would be is if it

became necessary - if, at the end, we got leave,

perhaps it would be more appropriate if I did not

go on with this application now, that is, put the

affidavit in, but left that - - -

Fuller	26/8/94
TOOHEY J:	Can you identify the affidavit for us?

MASON CJ: Is it Joseph Patrick Cummings, with exhibits 1

to 15; in two volumes?

MR BORICK:  Yes, Your Honour.

MASON CJ: If there is that much material it looks as if it

will be a difficult matter to deal with. But why

should we be involved with all that, anyhow?

MR BORICK:  It would perhaps depend how the argument goes.

The only reason would be to show that, because of

lack of representation in what is happening in the

Magistrates Court at the moment, both applicants

are, in fact, being prejudiced by the lack of

representation. But perhaps, Your Honour, I think

I would r~ther go directly to our point, which is

that what is of special importance is the fact that

Dietrich itself said that an accused person should not stand trial - it would be unfair to stand

trial - without legal representation and the remedy

was an adjournment.

In our submission it cannot·ever be said that

trial starts from the moment the jury is empanelled

and the question then arises as to when does a

trial start? One obvious point is on committal for

trial and the filing of the information in either
the District Court or the Supreme Court, which

would immediately bring into play, in this State

anyway, a Dietrich type application.

TOOHEY J: But, are you arguing that the principle in

Dietrich extends to committal proceedings, or that

it should be extended to committal proceedings?

MR BORICK: That it should be extended. It is uncertain when

it refers to trial -

MASON CJ: It is clear enough what it was referring to. It

was referring to trial in the strict sense.

MR BORICK:  My submission to that, Your Honour, is that

trial in the strict sense is still not all that

easy to understand because, as I said, it - - -

McHUGH J: Why not? It is from the filing of the

indictment. How could a trial possibly begin with the committal proceedings? On that theory, if the information was dismissed the matter would be

autrefois acquit.

MR BORICK: Very well. Well then, if one accepts that the

word 11 trial 11 in Dietrich" means the filing of the

information, that much is clear. But then comes

the question of the extension of Dietrich to the

Fuller 26/8/94

pretrial process. Now, if counsel become involved

on the filing of the information, they still have

the duty, and the obligation, to go back to look at

what has happened during all the pretrial process,
including, obviously, the committal hearing. And what happens at the committal hearing is of vital

importance to the trial. It is at the committal

hearing, and during other parts of the, what I will

call generally, the pretrial process, which is the

process prior to filing the information in this

context, that that is where the lawyers involved,

when briefed, look at the investigation stage,

because, quite often, the lawyers are not involved

in that.

The committal itself involves probing into the

investigation stage and it is the investigation

stage which is often determinative of the outcome;

what the police did or did not do during the course

of their inquiry. And, in addition, at the

committal stage, the accused, on issues where there

is a factual issue, or a credibility issue, or

whatever - reliability issue - has the right to -

or at least did have the right - now you only get

it in this State if you have special circumstances.

And then there is the important decision by the

magistrate, whether or not to commit, and he is

entitled to have argument from a properly

instructed counsel to assist him on that issue, and

on a very important point, namely, whether or not

to commit for trial, and to bring the whole trial

process into play.

MASON CJ:  The whole point is, a committal proceeding is not

an exercise of judicial power.

MR BORICK: Well, it is sometimes said to be an

administrative function, but, in reality, it is a

process whereby the rights of an accused are

substantially and materially affected.

McHUGH J:	No, they are not.
MR BORICK:	And, whether it is called an administrative

process or some non-judicial process, it is still a key feature of our trial process and, in fact, as I

have suggested in my argument, it is the fulcrum on

which the criminal trial process as a whole turns.

The trial itself, from the moment the jury is

empanelled with properly instructed lawyers doing

their job competently, usually follows a fairly

clear cut plan, dictated by what has happened

during the preparation and - - -

MASON CJ:  But it is not an indispensable part of the trial

process. You can have ex officio indictments.

Fuller	26/8/94
MR BORICK:	Of course, but if there is an ex officio

indictment and the accused has the right to adopt

the Barton principle and to argue that he has been

denied proper committal proceedings, that remedy is

there. But, with the question of representation

during the pretrial process, including committal,

if that goes wrong, that is very difficult to fix

up later. In fact, it may never be fixed up if he

loses the right - or he does not succeed in getting

special circumstances and loses the right to

cross-examine key witnesses.

And, in fact, that is happening regularly in

this State where, because of our type of committal

process now, the prosecution often do not know what

Crown witnesses are going to say until they

actually get into the witness box at the trial.

Their statements are taken by police officers; some

well trained, some badly trained. The law makes no

allowance for that, and we venture to suggest that

one of the reasons for the very large number of

appeals to the Court of Criminal Appeal in this

State comes about from the type of pretrial process

we have got, which has almost eliminated the

committal hearing out of it.	And that applies to
both sides~

So, there can be no doubt, however it is

described, either administrative or judicial or

whatever term, it is a vital and important part of

the trial process, including the protection of the

rights of an accused person, and it is equally

vital, particularly in a case like this which is

complex to an extraordinary degree, many many

issues, as Your Honours have already seen, arise in

it, where it would be obviously impossible for an

individual without any legal training whatsoever -

it can be said that because Mr Fuller and

Mr Cummings are trained lawyers that it may be

easier for them, but the fact of the matter is that

they are still laymen in this sense.	They are
required to, with very very few resources, not much

more than a trolley, because they have no money,

they do have the chance to speak to either

Mr Edwardson or myself from time to time, but we do

not get a transcript of what is going on. They

have a variety of prosecuting authorities that are

mentioned in our argument, ranged against them, and

it is extremely difficult for them to represent

themselves.

In my submission, there can be no doubt that

this is a case in which legal representation would

be at least - at the very least - highly desirable,

but, in the practicalities of it, absolutely

necessary.

Fuller 26/8/94

TOOHEY J: That cannot be the foundation of an application

for special leave to appeal, though. I mean, are

you inviting the Court to extend Dietrich to

committal proceedings generally, or the committal

proceedings in this particular case?

MR BORICK:  I am inviting the Court to extend Dietrich to

long, serious and complicated trials of the sort

referred to in Dietrich itself, and for the Court

to say that accused people in that circumstance

should have legal representation for the process to

be fair - and I have changed the word "trial" to

"process" - process to be fair, because of its

importance, and, yes, we submit very strongly that

that is a matter of great public interest and of

importance.

McHUGH J:  Where does the unfairness come in, if somebody

has to represent him or herself at the committal

proceedings? Does it mean any more than, at the

trial, counsel then appearing have got to take some

risks when they ask questions, because they do not

know what the answer is, and the answer may revert

to the detriment of the accused? That is about

what it comes to, is it not?

MR BORICK:  No. I think there would be thousands of

situation that could arise where unfairness could

arise. It would vary in degree from the degree of

intelligence of an individual, but if the -

McHUGH J:  Give me some illustrations, if you could, just of

how unfairness at the committal proceedings will

affect the trial - will make the trial unfair.

MR BORICK: Well, in the ability to get particulars and

assess, say, overt acts in a conspiracy case, for

example.

McHUGH J:  But you get those at the trial, what the overt

acts are.

of the indictment. The trial judge will order particulars

MR BORICK: But any counsel, faced with a case like this

would be looking to require the Crown to

particularize, give as overt acts, prior to the

committal so that that process could take place

fairly and effectively. Another one is the matter

I put to Your Honour on the State application; the

argument for the special reason circumstances. You

have got to put your own case in order to show what

the special circumstances are.

Now that is a particularly important one, because an accused person, having to argue an issue

like that, particularly in a complex case like

this, being required, almost in a vacuum, to put

Fuller 26/8/94

what his case is, is committing himself, at that

point of time, before he knows fully what the case

against him is. All of what he says at that time

is recorded. He gets to trial; he finds himself

committed by that. His counsel may well have done

it altogether differently at committal hearing, but

he is stuck with what happens.	So that is another
example.

MASON CJ:  Mr Borick, we will adjourn now and we will resume

at 2.15 pm.

AT 12.50 LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ:	Yes, Mr Borick.
MR BORICK:	Now, Your Honour Justice McHugh, I am in the

middle of answering your question and I would

particularly like to finish it, but I would preface

it by saying that the decision in this Court in

Barton specifically refers to the importance of

committal proceedings and, in fact, it was referred

to there as a fundamental prerequisite to fair

trial. And Justice Stephen, in particular, placed

particular emphasis on the damage or, as he

referred to it, the irretrievable loss if the right

to cross-examination is lost. And then Your Honour
put to me, I think, a proposition there might be a
few things you have got to find out for yourself at

trial, or ask the occasional blind question, is the

way I would rephrase it. But those questions are,

without doubt, the most dangerous where, very

often, the most damage is done.

And I turn then, in my answer to Your Honour,

long time, but~ have only got a few minutes left,	I was giving some examples and I could take a very
and I refer to the conspiracy type situation where,
if you have the overt acts before the committal,
well you know what you are looking for during the
committal process. And that is important to
properly investigate the police investigation
procedures and processes, or, if there has been something happened while someone has been in custody, a questioning, that sort of issue; sexual
assault cases, where often there is a great deal of
vagueness if the sexual assault allegation is spread over a long period of time, and we get many such cases, in particular, forensic evidence, where it is so important to be able to cross-examine the expert to see precisely what he is saying and what

Fuller 26/8/94

his base is. And, for all those reasons, the

importance of having legal representation is that

the cross-examination techniques involved in that
sort of process is vital to going through the

process of finding out what the case against you is

and defining the issues, and that can only be done

in certain cases by sophisticated and experienced

cross-examination.

In this particular case - I do not know a

great deal about the facts of the case, but I am
informed there will be issues involving evaluations

of oilfields in America; we have to look at Swiss

banking records and practices; very complicated

inter-company relationships spreading around the

world, and most of the witnesses are, what I will

broadly describe as, sophisticated witness;

bankers, lawyers, accountants, geologists and the

like, and it would be an extraordinary - - -

McHUGH J:  But in this case, of all cases, you have already

had a 10 month civil trial, have you not?	So there
must be a mountain of material there.

MR BORICK: There is a mountain of material and, of course,

that was an entirely different context - - -

McHUGH J:	I appreciate that.
MR BORICK:	- - - and what is happening now is that

information is emerging which would have been

extremely important in that civil trial.

McHUGH J:  I must say, I do think the importance of

committal proceedings is overstressed,

notwithstanding what was said in Barton's case.

never asked any questions in committal proceedings.

Indeed, it is my understanding that at the New

And, for a cautious cross-examiner, who proceeds

step by step, very cautiously, there is fairly
minimal risks about asking questions.	I mean, in a

civil trial, parties meet each other without any

more than a general knowledge of each other's case.

I have never understood this emphasis on committal

proceedings. Of course it is a great benefit to

the accused; you can take risks and you can explore

lines, but -

MR BORICK: Well, with respect, I would disagree with

Your Honour. I think that, in some cases,

committal proceedings are not all that important,

because the issues are not all that great. But, in

some cases, and this is one, the committal process

and the right to cross-examination is vital and if

this Court were to suggest that when Barton spoke

about the fundamental prerequisite to fair trial,

Fuller 26/8/94

if that is to change well that, in itself, in my

submission, would make this case important -

sufficiently important to require the grant of

special leave.

We concede that the importance of

cross-examination will vary from case to case and

witness to witness. What we are asking for is a

direction that, at least in unusual, complex, serious cases of this type, that the fairness principle enunciated in Dietrich should normally

require that an accused be represented at

committal. I refer also to the value of counsel in

the sense that experienced counsel tend to look at

what I call the fulcrum stage of the committal -

tend to look backwards and forwards. You look

backwards at the investigation process and the

things that are happening there, but you are also

looking forward. You are looking forward and

planning how the trial will unfold and almost

always you are thinking of the final address to the

jury as you are doing it. That is not something

that a lawyer without that fundamental experience

and training can do.

Also I refer to the difficulty in preparation

if opportunities are lost because the right to

cross-examination is lost.	I refer to the
difference between a stay and an adjournment.	We

are asking for an adjournment here and it ought not

to be thought because there is an adjournment that

necessarily - would Your Honour allow me two more

minutes?

MASON CJ:	I do not see any occasion why we should extend time in this case, Mr Borick.
MR BORICK:	Very well, Your Honour.
MASON CJ:	Mr Walsh, you indicated you were going to apply

for leave to appear as amicus curiae, but after all

we have heard argument in support of a party, to

the effect that you want to put to the Court, why

should we grant you leave to appear as amicus

curiae?

MR WALSH:  If Your Honours have actually seen the outline of

argument that was previous supplied, and also the

letter that was annexed to that - - -

MASON CJ:	We have.
MR WALSH:	- - - there is really  little else I can put to

the Court in any event.	Unless the Court felt that
the Society could be of	assistance in this matter I
would be repeating what	is contained in - - -

Fuller 26/8/94

MASON CJ:  Yes, yes. Well; the case is one in which we do

not think we should grant leave to the Society to

appear as amicus curiae.

The Court need not trouble you, Mr Tilmouth.

In the view of the Court, this application for the proposed appeal does not enjoy sufficient

prospects of success to warrant the grant of

special leave to appeal. The application is

therefore refused.

AT 2.22 PM THE MATTER WAS ADJOURNED SINE DIE

Fuller 10 26/8/94