Ghomari v The Queen

[1991] HCATrans 179

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S46 of 1991

B e t w e e n -

MOHAMED GHOMARI

Applicant

and

THE QUEEN

Respondent

Application for directions

MASON CJ

(In Chambers)

Ghomari 1 23/7/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 JULY 1991, AT 10.05 AM

Copyright in the High Court of Australia

MR P. BYRNE:  May it please Your Honour, I appear for the

applicant in this matter.	(instructed by Baker
Ryrie Rickards)

MR T. BUDDIN: 

May it please Your Honour, I appear for the

respondent. (instructed by the Commonwealth
Director of Public Prosecutions)

HIS HONOUR: 

Mr Byrne, this matter has a similar history but

as it is a more recent matter we are not concerned

with the same time spans of delay.

MR BYRNE:  I can say - and I do apologize for any failure to

comply with the rules - the notice of application for special leave to appeal was filed on the last

day available. Together with that an affidavit in

support of non-compliance was filed. The problem

initially was obtaining the judgment of the Court

of Criminal Appeal. It took some two months or

slightly in excess of two months to obtain that

document.

HIS HONOUR:  What was the reason for that?

MR BYRNE:  I do not know, Your Honour. I cannot inform

Your Honour.

HIS HONOUR: Is that a common problem?

MR BYRNE: It happens from time to time, certainly.

HIS HONOUR:	Mr Buddin, do you know the reason for it?
MR BUDDIN:	I do not know the reason but I can share my

friend's concern and misgivings that it is - I

think it could be fairly characterized as common.

HIS HONOUR:  What is the range of delay from delivery to

ability to obtain a copy of the judgment?

MR BUDDIN:  It varies depending on whether it is a severity

appeal or conviction. If it is a conviction

appeal, clearly the period is longer and of
occasions that are within my experience, certainly
a number of months have occurred. I am not saying

that that is the common practice, but they

certainly have occurred, well outside the 21 day

per~od.

HIS HONOUR:	I see.
MR BYRNE:	Your Honour, I should say just in explanation of

that: the real problem occurs when judgments are

delivered extempore. When a judgment is reserved

and then delivered at a later time, the judgment is

published at the time of delivery but it is the

extempore ones that cause the problems.

Ghomari 2 23/7/91

HIS HONOUR:  Yes, well one does not quite know what the

cause is. It may be a problem of delay in getting

a typescript back from Court Reporting. That

probably is the cause in most instances. Then, of

course, there may be problems in confirmation,

depending on the physical availability of judges at

the time.

MR BYRNE:  Yes, certainly. Your Honour, whilst that

judgment was being awaited, I took steps to give a

preliminary advice which was sent to the Legal Aid

Commission. That was then used to grant legal aid

for the purpose of obtaining an advice from one of the Public Defenders. That advice was obtained on

18 June 1991. I should say that the result of that

advice left the applicant in the position where he

was not entitled to legal aid. He then sought to

obtain further advice in relation to the merits of

the appeal at his own expense and that advice has

now been obtained and, indeed, the documents which

should have been filed have been prepared and are

ready to be filed. I have got here, Your Honour, a

summary of the argument for the applicant.

HIS HONOUR:  And the affidavit. in support of the

application?

MR BYRNE:	Yes, Your Honour.
HIS HONOUR:	Are you in a position to file both of them

today?

MR BYRNE:	Yes, Your Honour.
HIS HONOUR:	And are you prepared to give an undertaking to

file them both today on behalf of your solicitor?

MR BYRNE:	I will, Your Honour.
HIS HONOUR:	Very well.

MR BYRNE:	Your Honour, in fact they were ready to be filed late yesterday but we were told by the registry by
telephone that because the matter was in this mornings list that they would not accept service of
them. They can be certainly filed today.
HIS HONOUR:-_ Very well.	As far as I am concerned, they can

be filed today. Mr Durie, do you want to say

anything about this case?

MR G. DURIE of the Legal Aid Commission: Only these points,

Your Honour: the application for legal aid in this

matter was made on 26 April. An authorization to

obtain an opinion from a Public Defender was

granted on 2 May and there was a telephone

conversation with the solicitors on that date, a

Ghomari 3 23/7/91

letter being sent on 7 May. Yesterday contact was

made with the Public Defender who provided the

advice and we were advised that it had been sent to

Mr Byrne's solicitor on 19 June, although we at

that stage did not have a copy of Mr Sides' advice.

Mr Sides forwarded that directly to us yesterday.

We are in a position now to determine the application today.

HIS HONOUR:  You are in a position

MR DURIE: Today, yes, Your Honour, having received

Mr Sides' advice yesterday.

HIS HONOUR:  How soon do you think you would be able to do

that?

MR DURIE:  When I get back to the office it will be

determined, Your Honour, unless Mr Byrne's

solicitor wishes to put in further advice.	We are
in a position to determine it instantly.	As I say,

Your Honour, we were told by Mr Sides that the

advice was forwarded to Mr Byrne's solicitor on

19 June. We only obtained a copy directly from

Mr Sides yesterday. We have not received an advice

from Mr Byrne's solicitor as to that opinion, nor

of the further opinion which has been obtained.

HIS HONOUR:	Yes, Mr Byrne.
MR BYRNE:	Your Honour, I was just going to say there was

certainly no attempt in what I said to criticize

any delay on the part of the Public Defender or the

Legal Aid Commission.

HIS HONOUR:  No, I had not understood you to offer criticism

of them at all.

MR BYRNE:	We were told, indeed, on 18 June 1991 what the form of the advice would take and that led us to
seek further advice, if I can put it in those
oblique terms.
HIS HONOUR:	Now, will you keep the registry informed as to

progress in this matter?

MR BYRNE: Certainly, Your Honour.

HIS HONOUR: For example, if legal aid is not forthcoming,

is that going to have an effect on the further

prosecution of this application?

MR BYRNE:  No, Your Honour. We have been working since

19 June on the basis that it would not be and we

have taken steps - - -

HIS HONOUR:  So it will be proceeding in any event?

Ghomari	4	23/7/91
MR BYRNE:	Yes, it will be.	As I say, those papers which

are ready to be filed today have been prepared by

other counsel.

HIS HONOUR:  Very well. Do you want to say anything about

the case, Mr Buddin?

MR BUDDIN:  No. I assume from what my friend says that

service will be effected today.	Then we will be in
a position to respond - - -

HIS HONOUR:  Yes, and then you will proceed to prepare your

summary of argument in due course. Very well, the

matter can be left on that footing.

AT 10.12 AM THE MATTER WAS ADJOURNED SINE DIE

Ghomari. 23/7/91