Fuller & Anor v The Commonwealth Director of Public Prosecutions

[1994] HCATrans 381

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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

and

THE SOLICITOR-GENERAL FOR THE

STATE OF SOUTH AUSTRALIA

Intervenor

Application for a stay

Fuller 1 17/6/94

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 JUNE 1994. AT 9.30 AM

Copyright in the High Court of Australia

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

Mr Fuller and Mr Cummings.	(instructed by the
applicants)

MR N.R. COWDERY, QC:  May it please the Court, I appear with

MR S.F. VORREITER for the Commonwealth Director of

Public Prosecutions. (instructed by the

Commonwealth Director of Public Prosecutions)

HIS HONOUR:  I should note that the Deputy Registrar has

certified that she has received a letter dated

15 June 1994 from the office of the South

Australian Crown Solicitor advising that the second

respondent proposes to submit to the jurisdiction

of the Court and to any order it sees fit to make.

Yes, Mr Borick.

MR BORICK: Could I just give Your Honour a brief background

sketch - - -

HIS HONOUR:  I have read the fairly voluminous materials,

Mr Borick. I would not claim to be able to recall

off the top of my head every fact in the case but I

have got a very good working grasp of the case, I

think, so you may proceed on that basis.

MR BORICK: Very well, thank you. Could I then just briefly

summarize what I perceive to be the three main

propositions from our Full Court when they removed

the stay. They said, first, that the practical

effect of the application to adjourn was that it

really amounted to an application to stay the

proceedings and they said, given that, and applying

Grassby, they held the magistrate did not have

power to stay proceedings. Now, if this

application for special leave proceeds, we will

certainly be challenging that, saying that this was

the authorities were to reconsider the matter in in fact a true application to adjourn and that if

the light of what the court had to say, and I was

relying upon what Your Honour and the Chief Justice

said in Dietrich, that there may well have been a

reassessment of the position, and that it was a

true application to adjourn.

Secondly, the Full Court accepted that it had

power to stay the proceedings but they said they
did not have sufficient information before them to
decide the issue, and we would agree that they had

power, but we would disagree that they had

insufficient information, but that in any event we

should have been given an opportunity to put other

matters before them.

Fuller 2 17/6/94

Thirdly, the Full Court said that the

appropriate judicial officer to decide the issue

was the trial judge, assuming the accused were

committed for trial.

After the Full Court had given their decision,

we made an application to stay pending this

this time on the basis that this

application for special leave and that was refused. proceedings,

application was pending, but the magistrate refused

to adjourn and in the end result, the committal is

due to start next Wednesday when, if unrepresented,

Mr Fuller and Mr Cummings will have to embark on

the difficult task of explaining why special

reasons exist to have witnesses called for cross-

examination.	I will deal with that again in a few
minutes.

So at that stage it seemed to us that we were

left with two options: one was to apply to a

supreme court judge to have some sort of

investigation into the facts that the Full Court

thought were missing; the second was to make this

application. But in the light of the judgment of
the Full Court, and with particular reference to

the role of the trial judge when appointed, it

seemed to us that option was not open and that
therefore we have exhausted all our avenues in the

State system and we are here.

HIS HONOUR:  Could I just get this clear. Since 8 June, has

there been another application before the

magistrate to adjourn the proceedings? 8 June was

when the OPP put the matter back before the

magistrate, the day after you filed your special

leave application.

MR BORICK:  That was the day on which we made the

application to adjourn the proceedings because of

this application.

HIS HONOUR:  Yes, so there has only been that one

application.

MR BORICK: That one, yes.

HIS HONOUR:  I am sorry, from something you said, I thought

there may have been a subsequent application.

Thank you, Mr Borick.

MR BORICK:  No, that is all that has happened. We rely

principally on Grassby.	Has Your Honour got a copy
of that?

HIS HONOUR:  Yes.

Fuller 3 17/6/94

MR BORICK: It is just the one page.

HIS HONOUR: Is it in Justice Stephen's judgment?

MR BORICK:	No, the Chief Justice.
HIS HONOUR:	It is Mr Justice Mason's judgment.

MR BORICK: Perhaps I can hand it up. There His Honour

granted the stay.	He said, in the second paragraph
on the page, that:

in the light of the history of the case, the
nature of the judgment of the Court of

Criminal Appeal and the fact that the refusal

of a stay will almost certainly result in the

applicant's committal for trial, with a

consequential change in the nature of the

proceedings now on foot, which in turn might

create difficulties -

Now, His Honour in that case did not go on to

consider whether or not there was a good chance of

success of the special leave application. He based

it upon the, in effect, change in status and, in

our submission, we come within the principle of that case and our argument is that if these two people are forced on unrepresented, they would not

be able to cope with the difficult task ahead of

them in a long and complex case and that there may

well be irremedial prejudice.

HIS HONOUR:  Can I just put that to you, because it seems to

me this is the crucial issue in this case. To

succeed on the special leave application you would

have to establish, would you not, that not only

does Dietrich empower a trial judge to stay a trial

on the ground that by reason of the lack of legal

representation at the committal proceedings the

trial will be unfair, but you would have to go so

far as to maintain that Dietrich would empower the

Full Court or, perhaps alternatively, the

magistrate to stay the committal proceedings

themselves.

MR BORICK: Adjourn was probably the expression I would

prefer, yes.

HIS HONOUR: Adjourn, yes.

MR BORICK:  Yes, that is what we would have to do and my

proposition to Your Honour is that the expression

"trial" cannot mean the moment when the jury is

empaneled.

HIS HONOUR:  I understand that, but it raises this

difficulty from your point of view, as I see it,

Fuller 4 17/6/94

Mr Borick, and it is this, that unless you can make

a strong case that you would be likely to succeed
in establishing that proposition, then it would be

difficult to say that the special leave proceedings

would become futile, because if you are able to

establish that Dietrich does extend to the right to stay a trial on the basis of lack of representation
at the committal stage, you would still have that

remedy open to you even though the magistrate

committed you for trial.	So the special leave
application would not be futile.	Do you follow
what I am putting to you?

MR BORICK: Yes.

HIS HONOUR:  See, there are two - assuming that you are able

to extend Dietrich - and at the moment I think -
you may disagree with this, but at least in

substance I think you have to apply it to a novel

situation, namely committal proceedings as opposed

to a stay - but you have to extend it in one of two

ways: you have to say, well, the trial can be

stayed by reason of the unfairness of the committal

proceedings, but for present purposes I think you

have to go further and you have to say, we can stay

the very committal proceedings themselves. Unless

you can establish both propositions on the special

leave application, then it seems to me that a

refusal of a stay does not make the special leave

application futile because you can still fall back

on the first limb, that is to say you could get the

trial stayed by reason of the lack of

representation at the committal.

MR BORICK:  I hope I have followed Your Honour correctly,

but there is a special situation in South Australia

with respect to our pre-trial process.

HIS HONOUR:  I understand your point about the special

reasons application. I understand the grounds that

you put forward, that not only is there the

argument about whether or not you should have leave

to cross-examine the witnesses at the committal

proceedings, but you assert that there are seven

preliminary issues before that question is

determined concerning severance of charge, staying

of abuse of process, admissibility of evidence,

that sort of matter.

MR BORICK: All those things exist, yes. But the special

difficulty about the special reasons application as

they have been developing in South Australia is

that when you have to put your reasons forward,

almost invariably you have to disclose part of your

case. Sometimes that may be obvious to the
prosecution, sometimes it may not be, and if I

could briefly take up Your Honour's time with an

Fuller 17/6/94

example of that. There was a case R vs in South

Australia recently where a doctor was charged with

gaining sexual favours from a woman by prescribing

pethidine. The woman had given a statement which

was very vague but it seemed as though she had

received an awful lot of pethidine from this

doctor. The defence position there was that he

only could have a certain number of doses of
pethidine per month and if her story was right,

then there was not enough pethidine to go around.

That was the essential defence case, but it had to

be disclosed to the prosecution in order to show

why that woman should be called to be cross-
examined. That is just an example, but it happens

regularly and it is a very difficult decision.

If the two applicants here do not succeed in

their application to call witnesses - and it will

be a very difficult task for them - then that is

where the real prejudice will arise because it

would be extremely difficult to revert back to a

committal-type process to enable some sort of

cross-examination to take place. One possible

remedy would be a trial judge getting hold of it

and then saying, I will not let the trial proceed,

I will have some sort of pre-trial voir dire cross-

examination. That would be extremely

unsatisfactory. It would lead to certainly a great

deal of fragmentation and that, I think, is one of

the principal matters upon which I rely to

establish this sort of prejudice which could not be	cured subsequently, thereby bringing me back to the
reliance upon Grassby.

The other feature about this case is that it

is obviously a very complex case. It is going to

be very difficult. It is a conspiracy charge

linked with other charged and it is compounded by

the circumstances surrounding the third alleged co-

conspirator, one Malcolm Johnson. He is in the

United Kingdom. A newspaper article appeared the

other day which said that the authorities are now	about to commence extradition proceedings. Whether
they succeed or not, we just do not know. We do
not even know whether they have commenced them.
They have certainly had quite a long time to do something about it. But he certainly would not be
back here by Wednesday. So that if he arrives back
perhaps some time in the middle of the committal,
that will create special difficulties for these
applicants. So I raise those points, Your Honour, to attempt to demonstrate that, apart from the
normal difficulties one experiences in a trial of
this nature or pre-trial process of this nature,
there are special difficulties associated with this
one.

Fuller 6 17/6/94

HIS HONOUR:  I understand that, but perhaps I should mention

to you that things have moved on somewhat since

Grassby. Although Grassby v The Queen to which you

referred me is concerned with a stay, recently on

22 April in an application of Parker for special

leave to appeal, which was refused by a Full Court

consisting of Justices Brennan, Gaudron and myself,

Justice Brennan giving the judgment of the Court, said that:

Nothing is more clearly established than that this Court will not not grant special leave to

appeal to challenge a committal for criminal

trial.

That being so, it seems very difficult to contend that the Court should stay a committal when it will

not stay a committal for trial. It will not grant

special leave to appeal against an order committing

somebody for trial.

MR BORICK:  I would immediately distinguish that situation,

because I come back to my point that this was never

an application for a stay, nor could it ever be

perceived to be.

HIS HONOUR:  I know you dress it up that way, and I

understand the criticism you make, but I think the

distinction is largely a verbal one to a large extent. The difference between an adjournment

until you get legal representation and staying the proceedings, in a case of this nature, seems to me

to be one of form rather than of substance. If you

seek an adjournment of these proceedings on the

ground of lack of legal representation, that is an

effective stay of the proceedings. That is the
reality of it. And that is the way Dietrich works

out in practice as well, really.

MR BORICK:  Although in Dietrich when His Honour the Chief

Justice looked at that issue and raised the point

that no one had come along to give you any facts

and figures about what the financial effect of this

was, he went on to say that it may mean a

reordering of priorities. In my submission, it is not correct to say that this is the same as a stay

because there may well be a reordering of
priorities if the application for legal assistance

is put in the light of the fact that a court has

said, we will give these men more time in these

circumstances to get legal representation, and in

the light of their being given proper legal

assistance in their application for legal aid,

which they have not had to date, because there are

matters in my submission which should be bought to

the attention of the authority-which may not have

been bought yet. There is an added complication

Fuller 17/6/94

here that I am informed that Johnson as a UK citizen, if he is extradited, he may well be

entitled to legal aid under their system, which

would lead to an extraordinary situation of two

Australian citizens appearing at a trial

unrepresented with a United Kingdom citizen

represented under their system.

HIS HONOUR:  You are probably aware that this Court has

reversed the decision of the Court of Appeal in

Canellis.

MR BORICK:	Yes, I am aware of that.
HIS HONOUR:	Notwithstanding that certain people were

granted legal aid in that case, and others were

not, except on a very limited basis.

MR BORICK:  I am obviously aware; I do not know

whether - - -

HIS HONOUR:	We have not given reasons - - -
MR BORICK:	The reasons are not - I do not know,

Your Honour, that I can say -

HIS HONOUR:  I understand the case you make and it is a very

difficult application, but I think you have really

put the case as strongly as it can be put,

Mr Barick.

MR BORICK:	Thank you, Your Honour.
HIS HONOUR:	I do not want to hear from you, Mr Cowdery.

MR COWDERY: If Your Honour please.

HIS HONOUR:	This is an application for a stay of committal proceedings until the hearing of a special leave
application that will probably be heard in Adelaide
at the sittings of this Court commencing on
22 August 1994. The committal proceedings are
scheduled to commence next Wednesday, 22 June.

The principal ground upon which the applicants

will rely in the special leave application is that

the principle laid down by this Court in Dietrich v

The Queen, (1992) 177 CLR 292 applies to an

application to stay or adjourn committal

proceedings. They contend that a stay of the

committal proceedings against them should be

ordered because, unless it is, their special leave

application will probably become futile.

Both applicants are bankrupt. They have made numerous attempts to obtain the grant of legal aid

from various State and federal bodies. Those

Fuller 17/6/94

applications have been so far, at all events,

unsuccessful. Arguably, their situation would

attract the operation of the Dietrich principle at

a trial, notwithstanding that both applicants have

been admitted to practice as barristers and

solicitors. The first applicant was admitted to

practice, I think, in 1964 and practiced until 1982

and the second applicant practiced from 1982 to

1988.

The applicants say that, notwithstanding that

they are legal practitioners, they would attract
the Dietrich principle if it extends to committal
proceedings because they did not practice at the
bar and that they are unable, by reason of their
lack of experience in litigation and the complexity

of the issues in the proceedings, to take

advantages of their rights under the Summary
Procedure Act 1921 (SA) and the Magistrates Courts

Rules made thereunder.

Section 104 of that Act provides:

"(l) Where a charge of an indictable

offence is to proceed to a preliminary

examination, the prosecutor must at least 14

days before the date appointed for the

defendant's appearance to answer the charge -

(a) file in the Court in accordance with the

rules -

(i) statements of witnesses for the

prosecution on which the prosecutor relies as

tending to establish the guilt of the

defendant;

(ii) copies of any documents on which the

prosecutor relies as tending to establish the

guilt of the defendant;

(iii) a document describing any other

evidentiary material on which the prosecutor
relies as tending to establish the guilt of
the defendant together with a statement of the

significance that the material is alleged to

have;

and

(iv) any other material relevant to the charge

that is available to the prosecution;

"

Section 104(1) also provides that copies of all documentary material are to be served on the

Fuller 17/6/94

defendants. Section 104 also provides that a

statement filed in the Court must conform with

certain requirements.

Section 106 of the Act deals with the taking

of evidence at a preliminary examination. It
provides that:

"(l) Where a charge is not admitted by a

defendant at a preliminary examination, the
following procedure applies:

(a) the prosecutor will tender the statements and other material filed in the Court and the

Court will, subject to any objections as to admissibility upheld by the Court, admit them

in evidence;

(b) the prosecutor will call a witness whose

statement has been filed in the Court for oral

examination if -

(i) the defence has given notice, in

accordance with the rules, that it requires

production of that witness;

and

(ii) the Court grants leave to call that

witness for oral examination;

If

However, subsection (2) of section 106 provides

that:

"The Court will not grant leave to call a

witness for oral examination under
subsection (1) unless it is satisfied that

there are special reasons for doing so."

Subsection (3) provides:  "In determining whether special reasons

exist for granting leave to call a witness for

oral examination, the Court must have regard

to -

(a) the need to ensure that the case for the

prosecution is adequately disclosed;

(b) the need to ensure that the issues for

trial are adequately defined;

(c) the Court's need to ensure (subject to

this Act) that the evidence is sufficient to

put the defendant on trial;

Fuller 10 17/6/94

and

(d) the interests of justice".

The applicants are charged with an offence of

conspiracy to cheat and defraud and a number of
offences concerning the fraudulent application of

property. The charges arise from transactions in

which the applicants were allegedly involved while

they were officers of a corporation. Very large

sums of money are involved in the charges. The

charges are clearly serious ones within the meaning

of the Dietrich principle. Moreover, it is

undoubted that, if the proceedings run their

course, they will be lengthy and complex. They

will apparently cover much the same ground as was

involved in civil proceedings heard in the Federal

Court in Beach Petroleum NL v Johnson, (1993)

115 ALR 411, a case that lasted for about

10 months.

The applicants were charged with one offence

on an information dated 25 June 1993.

Subsequently, additional charges were laid against

them by an information dated 20 September 1993. In

October 1993, a magistrate ordered that the prosecution file the witness statements and other

documents and materials required by section 104.

Shortly before 16 December of last year, the prosecution delivered a brief purporting to comply

with the magistrate's order. The material provided

contained, among other things, 66 witness

statements and 21 Lever Arch files of documents.

On 16 December, the magistrate ordered the

applicants, if they were so advised, to file and

serve, before 25 March of this year, notices as

required under rule 20 of the Magistrates Courts

Rules for applications to examine witnesses orally

at the committal proceedings. The magistrate fixed

a hearing from 11 April to 15 April 1994 to

consider the applications. Between December 1993 and April of this year,	solicitors who were acting on a pro bono basis for
the applicants engaged in voluminous correspondence
with the Director of Public Prosecutions concerning
the furnishing of further and better particulars
and the alleged inadequacy of material furnished by
the prosecution. During this period, strenuous
efforts were also made by or on behalf of the
applicants to obtain legal aid, but without
success. Nevertheless, the applicants complied
with the magistrate's order of 16 December and
filed the notice required by rule 20.02 of the
Magistrates Courts Rules.

Fuller 11 17/6/94

The notice for the second applicant contained

a preamble that the applicant could not exercise

his rights under sections 104 and 106 of the Act by
reason of various inadequacies in the material
furnished to the applicants. However, the notices
did indicate that at the committal proceedings the
applicants wished to examine a large number of
witnesses - I am not sure if it covers all

witnesses, certainly a large number of them - but

subject to and provisionally upon the determination

of seven preliminary issues. Those issues, set out
in the notice for the first applicant (which the
second applicant adopted), deal with (1) the grant
of particulars, (2) the furnishing of further

evidentiary material, (3) the severance of the

first charge laid in June from the charges laid in

September 1993, (4) the hearing of the informations

separately, (5) the striking out of the September

charges on the basis that they reveal no offence on
which the Magistrates Court or any court could

commit the applicants for trial, (6) the

admissibility of witnesses' statements and whether,

having regard to the admissible evidence, there was

any case to answer, and (7) the tendering of

statements or the calling of oral evidence by two

persons whom the applicants claimed were necessary

witnesses if the unfolding of the transactions was

to be properly understood. The ground upon which

the application to examine witnesses is based is

that the applicants wish to elicit information from

the witnesses that is relevant to the issues which

arise from the furnishing of particulars and their

request for further particulars.

On 11 April this year, Mr Barick of Counsel,

who appeared pro bona for the applicants before the

magistrate, applied for an adjournment of the

committal proceedings on the basis of Dietrich's

case. He relied on an affidavit that set out in

great detail the voluminous correspondence between

the Director of Public Prosecutions and the

solicitors acting for the applicants. Mr Barick

argued that, unrepresented, the applicants would not be able to effectively exercise their rights

that the committal proceedings and any subsequent

under sections 104 and 106 of the Act.

trial on indictment would be unfair to them. The

magistrate rejected the application. He said:

"Committal proceedings do not involve the

presiding Magistrate in determining major

legal rights of the accused. The 1992

amendments to the Summary Procedure Act in

section 105 and 107 have the effect of

limiting the function of committal proceedings

further by removing issues of credit and

Fuller 12 17/6/94

admissibility from the responsibilities of the

Magistrate."

The learned magistrate concluded that the Dietrich

principles do not apply to committal proceedings.

Accordingly, he rejected the application.

'

An appeal was brought to the Full Court of the

Supreme Court of South Australia against the

magistrate's holding that he had no jurisdiction to
stay or adjourn the proceedings indefinitely. The

Full Court upheld that holding. It also held that although it had power to stay committal proceedings

itself, there was insufficient information before

the court upon which it could exercise its

discretion to stay the proceedings.

Both in the affidavit filed in support of the special leave application, and in the oral

submissions this morning, a number of criticisms of

the Full Court judgment have been made. In

substance there are four main criticisms. First,

it is contended that the Full Court treated the

application to the magistrate as an application for

a permanent stay when, in reality, it was an

application for an adjournment. But, as I pointed

out during the argument, it seems to me that in

substance there is very little difference in this

particular case between those two types of

applications. If legal aid is not granted~ the

effect of ordering the adjournment of the

wrongly applied the decision in Grassby v

proceedings will be to stay the proceedings.

The Queen, (1989) 168 CLR 1, which held that a

magistrate had no jurisdiction to stay proceedings. Thirdly, it is contended that the Full Court erred

in not holding that the magistrate had power to

adjourn the proceedings for a time or from time to

time as proposed by the applicants.	That point was
not put before me orally this morning but it is one

of the grounds in the draft notice of appeal.

Having read the Full Court's judgment, I note that

certainly Mr Justice Bollen and to an extent Mr power to grant an adjournment while legal

representation is arranged. Fourthly, it is

contended that the Full Court, having found that it

had jurisdiction to intervene to protect the

applicants against abuse of process or unfairness,

was bound to go on and consider the application on

its merits and give directions for the conduct of
any necessary inquiry into the question of

unfairness.

After the Full Court dismissed the appeal of

the applicants on 3 June 1994, an application for

Fuller 13 17/6/94

special leave to appeal against their order was

expeditiously filed in this Court on 7 June. On

the following day, however, the Director of Public Prosecutions had the committal proceedings brought

back before the magistrate. On that day, the

Director of Public Prosecutions sought to commence the hearing of the Special Reasons Application to

examine prosecution witnesses on 22 June and

continue, although with some short intervals
apparently, until 15 July 1994.

On the same day, Mr Borick, again appearing pro bono, applied for an adjournment of the

proceedings to a fixed date after August 1994 on

five bases. First, on the previous day the

applicants had filed an application for special

leave in this Court. Second, as the committal

proceeding had not yet commenced, to adjourn the

matter to a date after August would avoid potential

fragmentation of the committal process. Third, the

applicants would be prejudiced by the requirement

to argue the Special Reasons Application to examine

prosecution witnesses if they had to without legal

representation. Fourth, the prosecution would

suffer no prejudice by delaying the commencement of

the committal process until after August 1994.

Fifth, extradition proceedings against another co-

accused were under way in the United Kingdom and
complications would occur if he became involved in

the South Australian committal proceedings after

they had commenced.

The applicants contend that, unless this Court

stays the committal proceedings, there is a real

prospect that those proceedings will conclude

before 22 August, with the prospect of a possible

committal for trial with prejudice which cannot be

cured thereafter. The applicants contend that,

without legal representation they will not be able

to present their submissions effectively and that

of their rights under section 106 of the Act to that fact is likely to render futile the exercise	advance reasons to examine witnesses. They also
contend that being unrepresented will result in their inability to persuade the magistrate that
some or all of the counts in the information should
be dismissed and that their inability to do justice
to themselves in the committal proceedings will
render any subsequent trial unfair.

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. But it is a jurisdiction

that is rightly recognized as extraordinary and one

that will be exercised only in the most exceptional

Fuller 14 17/6/94

circumstances. In Beljajev v The Queen, (1991)

173 CLR 28, Justice Brennan said at page 31:

"It is imperative that the jurisdiction to

grant a stay be recognized as extraordinary
and that applications seeking to invoke that jurisdiction are not made simply in order to

secure the intervention of this Court in the

preservation of a status quo.

In Edelsten v. Ward {No.2], I said that

the jurisdiction can be exercised only in

extraordinary circumstances and added:

'It is as well to emphasize that observation .

again lest the impression be created that, in the conduct of litigation, the orders of this Court are available to keep matters in statu

quo until the litigation is finally resolved.

That is not the purpose of the inherent

jurisdiction. Something quite exceptional

must be shown before that jurisdiction is

exercised. '

This must be so, particularly in the case of

interlocutory applications in a criminal

jurisdiction."

His Honour went on to say (at p.32):

"The jurisdiction of this Court is not

fitted to the supervision of interlocutory

processes of a criminal trial."

Recently, in an application for special leave in

the matter of Parker, heard on 22 April 1994,

application for special leave to appeal, said:

Justice Brennan, giving the judgment of

"This application is misconceived.

Nothing is more clearly established than that this Court will not grant special leave to

appeal to challenge a committal for criminal

trial."

His Honour, in giving judgment, repeated his

statement from Beljajev that:

"The jurisdiction of this Court is not

fitted to the supervision of interlocutory

processes of a criminal trial."

That dictum of His Honour was also applied by

Mr Justice Dawson in Re Rozenes; Ex parte Bill

Burd, (1994) 120 ALR 193.

Fuller 15 17/6/94

As I pointed out during argument, if the Court

will not grant special leave to appeal against an

order of committal, it must be reluctant to grant a

stay of committal proceedings before they are

completed.

However, Mr Borick in his able argument this

morning relies on the judgment of

Chief Justice Mason in Grassby v The Queen, (1989)

63 ALJR 348, where His Honour said:

"Generally speaking this Court exercises

its jurisdiction to grant a stay of

proceedings pending the hearing of a special

leave application when the grant of a stay is

necessary to preserve the subject matter or

the integrity of the litigation. I am not

persuaded that this is necessarily such a

case.

However, in the light of the history of

the case, the nature of the judgment of the
Court of Criminal Appeal and the fact that the

refusal of a stay will almost certainly result

in the applicant's committal for trial, with a

consequential change in the nature of the

proceedings now on foot, which in turn might

create difficulties in terms of the relief

which this Court could grant in the proposed

appeal, I have come to the conclusion that a

stay should be granted so that the applicant

can present his application for special leave

as the proceedings currently stand."

It is to be noted that one distinction between that

case and this case is that His Honour was of the

view that the refusal of a stay would almost

certainly result in the applicant's committal for

trial. That certainly cannot be said of this case

at this stage.

In my view, this application for a stay must

be refused. Before the Court would exercise the

extraordinary jurisdiction to stay committal

proceedings pending the hearing of a special leave
application it would need to be convinced that
there was a high degree of probability that the
special leave application would be granted and that

the right to make the application would be rendered

futile if the stay was not granted. In this

application, those two issues tend to be, if they
are not, interrelated. To succeed in this

application the applicants would need to make a

strong case that not only can an accused person

have a criminal trial stayed or adjourned on the

ground that he or she was unable to obtain legal

representation at the committal stage but that the

Fuller 16 17/6/94

principle laid down in Dietrich extends to staying

the committal proceedings themselves. Indeed, I

tend to think that to obtain a stay from this Court

the applicants would have to go so far as to

establish that ultimately they would probably be

able to obtain a stay of the committal proceedings. Unless the applicants can make out both

elements to the requisite degree of probability,

they cannot establish that the hearing of the

special leave application will be rendered futile

unless a stay is granted. That is because,

assuming that lack of legal representation at the

committal stage may render a subsequent trial

unfair, the trial judge can prevent unfairness to

the accused by adjourning or staying the trial

until there was a proper committal. In that

situation, it seems to me that the principle laid

down in Barton v The Queen (1980) 147 CLR 75 is

wide enough to cover the case if the principle of

Dietrich's case applies to a trial being unfair by

reason of lack of legal representation at the

committal proceedings.

Accordingly, if the applicants can ultimately

persuade this Court that lack of legal

representation at a committal may entitle a trial

judge to stay or adjourn a subsequent trial, they

will have remedies open to them, even if they are

committed for trial. It cannot be said, therefore,

that the refusal to grant this stay will make their

special leave application futile notwithstanding

that Mr Borick contends that some prejudice will

arise to the accused if they are committed for

trial. He says that without effectively exercising

their section 104 and 106 rights they would be

unable to cross-examine witnesses.

However, for the reasons I have given, I am

strongly of opinion that they have failed to make a

case for a stay.

In those circumstances, the application for a stay of the proceedings pending the hearing of the

special leave application is refused.

Mr Borick, is there anything further?

MR BORICK:  Mr Cummings just wanted to know if he can get an

order for a free copy of the transcript, being in

circumstances of not - - -

HIS HONOUR:  Of here, today?

MR BORICK: Yes.

Fuller 17 17/6/94

HIS HONOUR:  Make an application and I do not think there

will be any problem about that, Mr Borick.

MR BORICK:  Thank you very much, Your Honour.

HIS HONOUR: Anything further, Mr Cowdery?

MR COWDERY: Nothing further, thank you, Your Honour.

HIS HONOUR:  Very well. I thank you, Mr Borick, for your

assistance. The proceedings may be adjourned.

AT 10.20 THE MATTER WAS ADJOURNED SINE DIE.

Fuller 18 17/6/94