Grassby v The Queen

[1989] HCATrans 4

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S231 of 1988

B e t w e e n -

ALBERT JAIMIE GRASSBY

Applicant

and

THE QUEEN

Respondent

Application for a stay

MASON CJ

(In Chambers)

Grassby

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 1 FEBRUARY 1989, AT 10.15 AM

Copyright in the High Court of Australia

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DR G.W. WOODS, QC:  May it please the Court, I appear with

MR J. FOLEY for the applicant. (instructed by

Foleys)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR J. LAKATOS, for
the respondent who is the Director of Public

Prosecutions.

HIS HONOUR:  Yes, the present title to the proceedings ought

to be altered so as to conform with that description.

MR MASON:  Yes.

HIS HONOUR:  Yes, Dr Woods.

DR WOODS: If Your Honour please. Your Honour, this is a

matter by way of summons seeking a stay of orders made by the Court of Criminal Appeal of New South

Wales on 9 December last year and, Your Honour, can

I first of all - - -

HIS HONOUR:  The summons is dated 27 January and the affidavit in support is that of -

DR WOODS: Michael David Foley, dated 31 January 1989, and

exhibited thereto, Your Honour, should be two

judgments, one of His Honour Mr Justice Hunt of

9 December and the other of the court, dated the 12th.

Your Honour, I think in fact the first judgment is

a judgment of the court but principally of

Mr Justice Hunt.

HIS HONOUR: Yes, well he delivered a judgment first, or

delivered some reasons for not disqualifying himself

and the other members of the court expressed their
ag~eement with that course.

DR WOODS:  Your Honour, there is a draft notice of appeal which Your Honour has got late. I would seek the Court's

permission to hand up a substitute draft notice of

were sought. appeal because I omitted to put in the orders that

HIS HONOUR:  Very well, you may do that.

DR WOODS:  I have given my friend a copy of that. I am sorry,

Your Honour, I have got one which - no, that is the

correct version.

HIS HONOUR:  But this is not appropriate, is it? If you look

at the statement of the orders sought in the draft
notice of appeal, you seek an order that the orders

made by the Court of Criminal Appeal be stayed pending

the determination of the application for special leave

to appeal.

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DR WOODS:	That is so, Your Honour, yes.
HIS HONOUR:	But that is the order you are seeking on the

surmnons.	You are not seeking that in the appeal
itself.

DR WOODS:  I am sorry, Your Honour, that is certainly so.

I will have to amend that.

HIS HONOUR:  You will need ~o because you have not stated

there what orders ·you seek int?he appeal itself.	I
had better hand this back t~ you.

DR WOODS:  Thank you, Your Honour. Might I have the Court's

permission to amend that accordingly? Your Honour,

there is an affidavit in support cf the summons for
the stay by Michael David Foley relating to the events

of last Friday when the matter was before the learned

magistrate. There is no transcript of that but it

simply sets out briefly what occurred on that

occasion and I would seek - - -

HIS HONOUR:  Yes, I do not think I have read that affidavit.

DR WOODS:  No, Your Honour does not have that. I would

seek to file that. I can indicate that my friend

also has a similar affidavit, a brief affidavit, as

to the events of that day consistent with, I think

I can fairly say, with that affidavit.

HIS HONOUR:  Do you want to file that affidavit, Mr Solicitor?

MR MASON: ~es, I do, Your Honour.

HIS HONOUR:	Is there any dispute as to what occurred before the magistrate?
MR MASON:	No, there is not.
HIS HONOUR:	I grant leave to you to file an affidavit by

John Daniel Favretto sworn on 1 February also.

DR WOODS: The position then breifly, Your Honour, is that

there were orders made by the learned magistrate.
staying a charge of criminal defamation; it went to
the Court cf Criminal Appeal; that court ordered
that that stay be vacated and that the magistrate
proceed according to section 41(6) of the JUSTICES

ACT and the magistrate now indicates effectively that unless he has some order from this Court, he will

proceed to give effect to the orders of the Court of

Criminal Appeal.

HIS HONOUR:  You say you are seeking a stay of the orders

made by the Court of Criminal Appeal.	You only need
a stay of order 4, do you not?

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DR WOODS: Effectively that is so, Your Honour, yes.

HIS HONOUR:  So we can proceed on the footing that you are

seeking a stay of order 4.

DR WOODS:  That is so, Your Honour, yes. The essential

problem which we direct ourselves to is the problem

of the application that His Honour Mr Justice Hunt

disqualify himself being rejected. The short

essence of our argument on that point is that the

cormnents made by cnat judge in a previous case,
WATERHOUSE V GILMORE, and I hand up to Your Honour

a copy of that judgment - perhaps if I can give you

the proper version might be more convenient for

Your Honour.

HIS HONOUR: This is quite convenient if it is legible. Is

it a good print or not?

DR WOODS:  I think it is a good print. Can I direct you in

particular to page 288. The context of this case is

a prosecution for criminal defamation having nothing

to do with Mr Grassby or anybody connected with

Mr Grassby and in the course of the judgment in that

matter at page 288 point 8, His Honour proceeds to deal incidentally or obiter with Mr Grassby's case

which was then pending.

HIS HONOUR:  Had the case come in any way before

Mr Justice Hunt?

DR WOODS:  Yes, it had, in the sense that a civil defamation

suit bought by Mrs McKay and her son and a solicitor

of the family, Mr Salmon, had been dealt with at,

I think, on a preliminary basis anyway by

Mr Justice Hunt. But that was a civil matter having

nothing to do with the criminal matter.

HIS HONOUR:  Yes, now it is the last paragraph concluding on

that page, is it, that you are referring to?

DR WOODS; It is the paragraph which starts at F, Your Honour:

A prosecution has also been brought - - -

HIS HONOUR:  Now, what part of that paragraph do you complain

of?

DR WOODS:	The totality of that paragraph and the next paragraph, but in particular to the coloured
terminology.  The key part of it is this, and I.
quote about 10 lines up --from the bottom:

That prosecution is obviously an appropriate

use of the criminal law, as the fact of the

publication by Mr Grassby and the

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extraordinary circumstances surrounding

it were not discovered until a statutory

inquiry was held after the limitation period

had expired.

Now, Your Honour, there are two parts of that - - -

HIS HONOUR:  Is there anything else of which you complain

in that paragraph or not?

DR WOODS:	Yes.
HIS HONOUR:	Now, what else do you complain of?
DR WOODS:	We complain of the use of the term "his publication of grossly defamatory statements".
HIS HONOUR:	But the statements are grossly defamatory, are

they not?

DR WOODS: Your Honour, in the context of the civil law, that

might be so, but he is talking about the criminal

law here.

HIS HONOUR:  Is there any contest in this case that the

statements are defamatory?

DR WOODS:	In terms of civil law, no.
HIS HONOUR:	What about in terms of criminal law?
DR WOODS:	In terms of the criminal law, we say that you cannot

separate the elements of the offence. The principal

element of the offence with respect to which we

would, and have always indicated that we would mount

a defence, is that there was no intent to injure.

HIS HONOUR:  But that does not bear on the question of

whether the words complained of are defamatory- - -

DR WOODS:  Oh yes, Your Honour, it does with respect. We

say that one looks at the criminal charge, which is
a charge of, in effect, criminal defamation.	He is

either guilty of criminal defamation or he is not.

HIS HONOUR:  But he may not be guilty of criminal defamation

for a variety of reasons.

DR WOODS: Precisely.

HIS HONOUR:  But in this case you cannot dispute, can you,

that the words are grossly defamatory?

DR WOODS:  No.

HIS HONOUR: I do not see the point of that complaint.

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DR WOODS:  Your Honour, in context, it relates to the totality

of that paragraph.	Can I point to further aspects
of it.	He goes on to say:

following Mr Grassby's successful (but

hardly meritorious) claim that her right

to recover damages from his was barred by

the LIMITATION ACT 1969.

Now, Your Honour, the matter had been before

His Honour Mr Justice Hunt at - as it were, in the

defamation list. It had not got to a trial and never

did but there was argument ·there about the general
entitlement of the plaintiffs to succeed and one of

the questions which arose was the question of the

LIMITATION ACT, and it was by no means the only

matter that was raised in the course of those

proceedings but, in any event, what His Honour has

said there is that - in effect, he said that there

was a technical defence and it is to Mr Grassby's

discredit that he took it.

There is no other way, I would respectfully

submit, in which the word "meritorious" can be

interpreted.

HIS HONOUR:  Was there any debate in the earlier proceedings

before Mr Justice Hunt as to whether or not the

defence was meritorious in the circumstances or not?

DR WOODS:  I think there was just a question of - questions of

law. That is my understanding of it. I did not

appear but I have spoken with counsel. It was just

a question of law.

HIS HONOUR:	Yes.
DR WOODS:	We contend that - - -
HIS HONOUR:	By the way, can I ask you what submission was the

judge answering when he said "That prosecution is

obviously an appropriate use of the criminal law"?

I have some difficulty in my own mind in understanding

the point of His Honour's observation.

DR WOODS: 

Your Honour, our submission is - and it is a matter for Your Honour - but it has absolutely nothing to

do with any submission, as far as I can glean from

reading the case. It was otiose.

HIS HONOUR: 

But that does not seem to be right, because when

you look at the colillllencement of the next paragraph
His Honour says:

But that is the only defamation case in

which it could possibly be said that the use

of the criminal law has been appropriate.

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DR WOODS:	Your Honour, I think he is talking there about- - -
HIS HONOUR:	He seems to be responding to a suggestion that

the cases in which it is appropriate to institute

criminal proceedings for defamation are of a limited

or non limited kind.

DR WOODS:  That is so. There is no doubt about that,

Your Honour, that is the point he was making. But

he should not have.said it, with respect, about a

pending criminal trial, a pending criminal prosecution.

HIS HONOUR:	Yes?
DR WOODS:	Your Honour, most particularly, the most important

part of the proposition I am putting to you is that

in saying what he did there, His Honour has, in

effect, prejudged the very issue which he addressed

himself to and the court addressed itself to in the

stay application before the Court of Criminal Appeal.

These are the words:

as the fact of the publication by Mr Grassby

and the extraordinary circums.tances

surrounding it were not discovered until a

statutory inquiry was held after the limitation

period had expired.

(Continued on page 8)

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DR WOODS (continuing):  Now, if Your Honour goes to exhibit 2,

to the affidavit of Michael David Foley, of

31 January, that is to say, to the long judgment

of 12 December, there are some pages there which

deal with this point; in particular, pages 27 to,

in effect, 31. Towards the bottom of that page,

about point 7 of page 27:

The principal ground upon which

Mr Grassby sought a stay -

Now, Your Honour, 'the facts of the case are that

the document was handed to Mr Maher in 1980.

Your Honour will see there that there is reference

to the facts - publicity given to it and then

on the next page there is an analysis of the

sequence of events that followed. I would invite

Your Honour to read those; the next page, page 28,

or most - part of it.

HIS HONOUR: 

When I read them what should I have in mind?

was not until 1986 that the royal commission of inquiry
was set up - the special commission of inquiry was

DR WOODS:  The short point, Your Honour, is this: that it

set up which dealt with the McKay inquest. The

document was handed to police in 1980 by Mr Maher
and it went to Inspector Tuppman and it went all the
way up in the police force and it was looked at and

it was known at that point that there had been a

document of this nature given to police.

Now the Court of Criminal Appeal says, for the

purposes of the law which governs delay as a basis

for stay on the ground of abuse of process you

identify the commencement date at which the authorities

were seized of the issue, so to speak, as being

1986.       We say - we submit to you that the appropriate -

and we submitted to the Court of Criminal Appeal -

point in time at which one says the authorities

were seized of these issues and therefore delay

can be held against them in terms of abuse of process

from 1980, or late in 1980.

HIS HONOUR:  But this is another point. You have moved away

altogether - - -

DR WOODS:  No, Your Honour, no. It is another point in itself

but it also relates back to the quotation from

WATERHOUSE V GILMORE because what was said by

His Honour in WATERHOUSE V GILMORE was, at page 288G:

That prosecution is obviously an appropriate

use of the criminal law, as the fact of the

publication by Mr Grassbv and the extraordinary

circumstances surrounding it were not discovered

until a statutory inquiry was held after the

limitation period had expired.

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His Honour Mr Justice Hunt expressed a view

there -

HIS HONOUR:  Yes, I see. So, you are saying that he prejudged

this issue which went to the time of co1Im1encement of

the period of suggested delay?

DR WOODS:  Yes, Your Honour, that is the point. That is the

short point and the second part of it is that there

was an error in the Court of Criminal Appeal in

taking a view that ,the authorities were not seized

of the issue, as ft were, for the purpose of the law of

delay until 1986 whereas, they should have said

it was late 1980 that they were seized of it for

the purposes of the law of abuse of process. That

is the short point. The question crystallizes into

the issue of how precisely must the authorities be

seized of the issue before it can be said, "Well,

they are in possession of material which justifies

prosecution and it can be held against them." What

we say is that it is sufficient, if they are generally

in possession of the material - they do not have to

have the particular section of the Act under which a prosecution will be brought pointed out to them, they have their own advice, skills and knowledge.

They had the document; they knew there had been a

meeting between Mr Maher and Mr Grassby. They should

have applied their own minds to it. Whereas what

the Court of Criminal Appeal says is, "Well, that

is not specific enough.", and that is the point which

we would seek to, principally, put before the Court

on the question of a special leave application.

HIS HONOUR:	When you say it is the principal point, what do you mean by that?
DR WOODS:	Your Honour, there are two, as it were - there are

two issues: one is the question of possible

apprehension of bias. I have been cautious in

preparing the two in the sense that it could be said

that if the Court took the view that there was a

reasonable apprehension of bias then the Court would

On the other hand, the Court might take the view,	not need to address any other questions of substance.	''Well, there was bias but they're right anyway" and
what I seek to put to you and subsequently to the
Court is the proposition that there are major questions of law as to abuse of process itself, as distinct
from bias, which justifies special leave.

HIS HONOUR:  I take it then if the special leave application

proceeds you want to present an argument that the

Court of Criminal Appeal was too restricted in the

view that it expressed as to the jurisdiction of the
magistrate to grant a perpetual stay of proceedings

and to dismiss the information?

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DR WOODS:	Yes, Your Honour, yes.
HIS HONOUR:	That the power conceded to the magistrate by the

Court of Criminal Appeal was much narrower than you

say it should be. How wide do you say it goes?

DR WOODS:	Wide enough to cover this case.
HIS HONOUR:	That is not very helpful, is it?
DR WOODS:	Yes. Well, in teirms of principle, Your Honour, we

say it is so wide as is described by the Court

in BARTON V REG where, the classic statement - - -

HIS HONOUR:  You say the magistrate has the same power as a

superior court has?

DR WOODS:	Yes.
HIS HONOUR:	The trial court has?
DR WOODS:	Yes, within the limits of what his functions are

but, yes, that is so. He is a judicial officer

exercising judicial powers and has - - -

HIS HONOUR:  And how do you relate section 41 to the possession

and exercise of these wide powers, because section 41

does not seem to refer to them at all?

DR WOODS:  No. Well, in the same way, Your Honour, that

criminal defences exist, as it were, independently

of statutes. If you looked at a criminal statute

which sets out a criminal offence you would not think

there were any defences. We say that there was, in a
magistrate, an inherent power similar to the powers
exercised by superior courts not such as to usurp

but, certainly, of a similar type.

Can I indicate to Your Honour the particular

pages of the long judgment, if I can so describe it,

which relate to the particular grounds I have set out

in the notice of appeal and which are all set out in

the affidavit supporting the summons, Your Honour?

Perhaps I cannot do that in view of the fact that the

notice of appeal is not properly before you for which

I apologize. Your Honour, if I can take you to the

affidavit of Michael Foley of 31 January, paragraph 10

thereof, Your Honour will see that l0(i) is the bias

point or suspicion of bias point; l0(ii) is the -

HIS HONOUR:  It would be more exact to say your case is

reasonable apprehension of prejudgment, is it not?

Bias arising from prejudgment?

DR WOODS:  Yes, that is so, Your Honour, yes. Your Honour, I

think I may have been bold enough to suggest actual

bias but I withdraw that. Obviously the case is

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more properly put on the basis of reasonable

suspicion of bias.

HIS HONOUR: Yes. Well, I see paragraph 10.

DR WOODS:  Your Honour will see that paragraph lO(ii) is the

point which I have just made, that the authorities

were not seized at a particular point or were seized

as from the end of 1980.

HIS HONOUR:	Yes.
DR WOODS:	The next, lO(iii), is dealt. with particularly at

pages 29, 30 and 31 of the judgment. I am sorry, no,

that is incorrect. Can I direct Your Honour to

page 19 point 10, the last line, in effect - the last

three lines:

whilst clearly acknowledging at the same

time that the opportunities for the

exercise of that power will be extremely

limited.

We contest that as a part of the other points which I

seek to put to you.

Can I take you to page 9 of the affidavit?

charges.

Your Honour will recall that the context of this case - were two

HIS HONOUR:	Yes, I recall that.
DR WOODS:	Yes. And the first charge was a charge based upon

the lengthy evidence of a criminal informant who had

been a heroin dealer, was an admitted liar - - -

HIS HONOUR:	But what has that got to do with this charge?
DR WOODS:	And we say that it is inappropriately limiting to

say, as the court did in this case, that this is not

a circumstance which the magistrate could take into

account the fact that there had been proceedings

before him in which these serious allegations were

made against Mr Grassby and he could not take it into

account in the judgment that he made, ultimately,

that there ought to be a stay of proceedings.

HIS HONOUR:	Why, normally, would that be relevant?
DR WOODS:	We say it is relevant on this basis, Your Honour:

that as a matter of sheer fairness - the criminal

law does not operate in a vacuum, we contend, and

it is proper for him, acting judicially, having

regard to the proceedings before him, to look at the
totality of it and to say, "Well, I'm not concerned

simply with delay, I'm concerned with fairness generally.

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The abuse of process doctrine is a doctrine of

fairness and amongst other things, looking at delay

as well - but amongst other things, I can take

account - - -"

HIS HONOUR:  It cannot be right, can it, to say that because

a defendant has been wrongly proceeded against

in respect of one criminal charge that it is right

to stay proceedings against him on another criminal

charge when there is evidence on which a jury could

T2	find him guilty of that charge? I can understand
that if you had a ·series of findings which enabled
you to come to the conclusion that the prosecution
was mala fide because it wa·s· seeking the attainment
of some ulterior object, it is conceivable that you
could get to that situation but you have not got any findings of that kind in this case.

DR WOODS:  I accept that, Your Honour, but what we contend is that

not that that factor alone would be sufficient. If
there were, for example, two charges, one of them

baseless and the cause of great trouble and distress

to an accused person and subsequently discharged, and
a second one, on its face, not subject to any possible

argument in terms of abuse of process, I would concede

clearly that there was no doctrine or basis for saying

that in that case the magistrate can stay, as it

were, collaterally. But what we do say is that when

you have got other factors - delay as the principal

consideration - when you have those other circumstances

as a factor, peripheral it may be but as a factor, His Worship can refer to that, can, to some extent,

take it into account which is all that we say he has done.

It is not proper, we say, not lawful, for the analysis that the Court of Criminal Appeal conducted to purport

to represent the law, that is to say, that any such

consideration must be excised completely, in effect.

HIS HONOUR:  But it seems to me that your submission really

travels a long way, in effect, the discretion that

the law officer has to decide whether or not to file

a bill in a case where there is evidence fit to go

to a jury is altogether excluded if you acknowledge

that the magistrate has this power. What is more,

it seems to me, there is a quite remarkable

contrast between the position of the magistrate

and the position of the trial court, the superior

court. It has been held in BARTON's case· that a

superior court will not review the Attorney-General's

decision to prosecute. Yet, on your submission,

the magistrate, in effect, because you concede to him

this very wide power, can exclude the Attorney-General

from exercising the relevant discretion thereby

putting the magistrate in what seems to be a position

of comparatively greater power than that of the trial

court.

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DR WOODS:  Your Honour, it is always subject to appeal.

The magistrate, as in this case, is subject to

appeal. If the High Court properly takes the

view that discretion was improperly exercised it

can so determine but, with respect, I appreciate

the substance of what Your Honour puts. But the
logic of that is that the power that the magistrate

exercises is not a power based upon a doctrine of,

as it were, general fairness. There must be another

independent doctrine, if we accept that there is

such a power, for ~elay to be the basis for abuse

of process, as it were, as an independent power.

My submission is that the d~ctrine is a doctrine

of fairness. He is entitled judicially to take

into account any factor of fairness and the matter

then can go on appeal if necessary, it is true,

and we concede that it inhibits to some extent the

discretion of the law officers. But, Your Honour,

with respect, that is a perfectly rational

and sensible systematic way of proceeding. If the

magistrates do not have these kinds of powers, do

not have broad powers, then we end up with a

judicial system pushing ever towards the top,

pushing ever towards the decision-making process being at the high level and, of course, as the Court that you preside over has recognized in

recent years, it is unworkable ultimately. The vast

bulk of criminal work is done by magistrates. The

vast bulk of criminal work depends upon them

exercising discretions and making important decisions

all the time, subject to appeal. But if they are to

be denied that power then the courts will be clogged.

HIS HONOUR: Essentially, that is a political question, is it

not, and a decision that has to be resolved

politically? I mean, are powers of this kind to be
exercised in the way you suggest they should be
exercised by magistrates or should one seek to

preserve untrammelled a wide discretion in the law

officer? Now, essentially, that is a political

question. When you look at section 41 it does not

contain any evidence that indicates that the

legislature was intending to resolve the question in

the way that you suggest.

DR WOODS:  The section itself does not, Your Honour, that is

true. All we can look to is the doctrines of abuse
of process that have been developed by the courts
including the decision in BARTON's case. We say,
with respect, that it is proper for the High Court

not to deal with political issues, as such, or make

political decisions but to deal with matters of

legal policy. Now, this is a legal policy decision,

it is not a matter for the Metropolitan Water

Sewerage and Drainage Board, it is essentially an

issue concerning courts and fairness.

HIS HONOUR:  I do think.¥ou have come to the right jurisdiction

if I may say, Dr Woods.

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DR WOODS: If Your Honour please. And with respect, I would

submit to you that there is an issue here which

justifies special leave.

HIS HONOUR:	You do not have to persuade me of that. All you have to persuade me of is that you have an
arguable case on your special leave application.
If you have an arguable case on your special leave
application then you. are well advanced along the road towards securing a stay pending the hearing of
that  application ...
DR WOODS:	Your Honour, I would respe.c.tfully submit that in

regard to the bias point there is clearly an arguable case. The question then arises, if

Your Honour takes the view that even if that - or

if the Court takes the view that even if that

have referred to, right in principle, that gives me some difficulties and if Your Honour were to

were so, it would not matter any way because the

say that there appears to be an argument on the bias point and it would automatically logically

follow that no part of the decision of that

court could stand as a result of that, then it would not be necessary for me to put the other

matters. So, could I invite Your Honour to consider it on that basis, there being two separate elements?

HIS HONOUR:  Mind you, all you have to do, as I have said, is

to persuade me that you have an arguable basis for

a special leave application and that does not entail

arguing at length the points that you would seek to

put to the Court on the hearing of an appeal. It is

merely a matter of giving me a conspectus and my

forming a judgment as to whether, really, it is

worthy of the Court hearing a special leave application.

DR WOODS:  Can I generally say this, Your Honour, that there

have been a multitude of cases on abuse of process

in New South Wales recently. It has even prompted

the learned Solicitor-General to write articles

for the Australian Law Journal about the subject.

MR MASON: No, that is not right.

DR WOODS: Well, for journals. But in any event, Your Honour,	we say ,that this case raises, in a number of aspects as
set. out- ·in the summons, the broad issue of the power
of a magistrate to make stay orders and that is
something which requires, and we would respectfully
say justifies, the attention of the highest tribunal and we say, with respect, that there arguments. There is, for example, a division of opinion in the Court··· of Appeal itself. between your brother
as he now is, Mr Justice McHugh, on the point of
whether there is only a doctrine of fairness - - -

SlT3/3/PLC	14	1/2/89
Grassby

HIS HONOUR:  He is not my brother until another ten days,

Dr Woods.

DR WOODS:  I am sorry, Your Honour, I apologize. But between

Mr Justice McHugh and other judges as to the

basis, I would respectfully submit that this is a	jurisprudential nature of this doctrine and on that
case which will justify substantial argument as to
that doctrine leaving aside the bias point.

HIS HONOUR:  Dr Woods, if the matter is to go ahead by way of

a special leave application, how long is it going

to take?

DR WOODS:	To argue the point?
HIS HONOUR:	Yes.
DR WOODS:	Your Honour, the bias point would take an hour,

perhaps, and certainly the other matter would take,

I should say, two hours.

HIS HONOUR:  So, the case would take the better part of a

day?

DR WOODS:	I think that is probably right, Your Honour, yes.
HIS HONOUR:	Is it a case that would be assisted by your

filing a comprehensive written submission, particularly

on the second point?

DR WOODS:	It certainly would be, Your Honour, yes.
HIS HONOUR:	Very well. You have covered the ground fairly

exhaustively. I cannot think that there is anything

else you want to say, is there?

DR WOODS:  No, Your Honour, thank you.

HIS HONOUR:. Yes, Mr Solicitor?

MR MASON:  I put my submission in three broad bases: first,

addressing the question of whether there is an

arguable case for a grant of special leave; secondly,

reminding Your Honour the fact that there has been

no application made to the court below which,

according to the practice as I understand of the

Court. is. a prerequisite to making an application

to this Court and, thirdly, to address the question

of balance of convenience. This issue as we would

see it is whether there is an arguable case not just
of error but of error that would attract a grant of
special leave and with that focus may I turn to the
question of bias? Looking firstly at the statement

about which complaint is made in GILMORE's case, Your Honour. raised the question of what was the

context of the statement. The submission of my

SlT3/4/PLC	15	1/2/89
Grassby

learned friend was that it was made without context

or justification. May I take Your Honour to

page 287, the preceding page of the report, to show

that it was a relevant and proper statement in the

context of WATERHOUSE's case. I appreciate that is

only part of the way but since the point has been

taken I seek to respond to it. At page 287F or

just above line F the context is introduced by the

statement that:

It was a-1,so submitted by the defendants

that the prosecutions brought against them by

the plaintiff were an· abuse of process.

And it was in response to that submission that

His Honour then said at the beginning of the next

paragraph at the bottom of the page that:

There is a vast difference between

the functions of the criminal law and that

of the civil law.

And referred to the interests that were justified

or represented by civil and criminal law respectively.

GILMORE's case related, as Your Honour would

be aware, to a criminal defamation prosecution and

it was in that context that the statement was made

about the GRASSBY case at page 288F and then His Honour,

as it were, closed by submission on page 289C by

saying:

Although a magistrate is not able to

determine whether the use of criminal

proceedings is appropriate in the particular

case, I see no reason why this Court should

be obliged to send back for further hearing
in the Local Court a case in which such use of

criminal proceedings is entirely inappropriate

(as it is in this present case).

Now, I turn then to the question of whether the

making of that statement in the earlier case could

.	lead a reasonable person to believe that there had
been a prejudgment on a relevant issue. I take it

from what my friend has said that the relevant test

to be applied is not sought to be raised in this

proceeding and I understand that test to be as

stated in LIVESEY's case, and I have a copy of that.

I do not intend to refer Your Honour to it except one passage but I will just hand it up at this stage if I may - LIVESEY V THE NEW SOUTH WALES BAR

ASSOCIATION. So, what we are concerned with in this

case is the application of the principle rather
than its formulation and that is a factor relevant
to whether the Court would grant special leave on the
bias point.

SlT3/5/PLC	16	1/2/89
Grassby

On the application of the LIVESEY test, the applicant fails in two respects, in my submission.

The first is that all the applicant points to is

that there was a finding in a prior case. Now,

that cannot, in my submission, in itself give rise
to a reasonably apprehension of prejudgment. If

the finding was relevant, it is really no different

to a judge in an earlier case supplying the rule in

BAIN V FOTHERGILL setting out what his or her

reasons were and then having a later BAIN V FOTHERGILL

case. One has to go a step further and find that

the making of that, 'statement was so inappropriate,

in the earlier context, or so framed in such a way

that a reasonable-minded observer would think that

that judge should never be allowed to deal with that

sort of issue in a later case. That has not been

made out in the present situation, in my submission.

(Continued on page 18)

S1T3/6/PLC	17	1/2/89
Grassby

HIS HONOUR:	But is that right? Let us assume that a judicial officer makes a finding on issue X in a previous case
and the finding is adverse to the plaintiff in the
later case.  May that not be enough to constitute bias
arising from prejudgment in the later case whether or
not the finding was appropriate in the first case?
MR MASON:	It may but it need not - it may but before it becomes such the Court must ask the broader question, would a
reasonably minded person say that the making of that finding in the ear,l.ier case meant that this judge had
an unfair predisposition to the - - -
HIS HONOUR:	If the issue to which that finding related was

either the same issue or a related issue in the second

case there would be a prima facie presumption, perhaps

not in the legal sense, of reasonable apprehension of

bias, would there not, on the footing that the judge,

the judicial officer would be approaching the issue in the second case with that very attitude in mind.

MR MASON:  Yes. It would depend on how specific the finding

was; how central it was to the later case.

HIS HONOUR:  Yes, there would be a matter of relationship between

findings that you would take into account in coming to

a conclusion. Now it does not seem to me that in the

context in which I am putting the question to you that

the appropriateness of the finding in the first case

would have a great deal to do with it.

MR MASON:	No, I accept that.
HIS HONOUR:	I can understand that in cases of actual bias the appropriateness of the finding in the first case may
be particularly relevant. If it was an inappropriate
finding in the first case that would rather tend to
suggest that there was some bias.

MR . .-MASON: Yes, I accept that merely to show it was appropriate,

.it does not get me home on that point.	The second, .and
'in view of the discussion that has just passed between

Your Honour and myself, it perhaps is a development
rather than a second point in which the LIVESEY test

is not met is that it was stressed in LIVESEY that the

issue found in the earlier case has to be relevant and
of course in LIVESEY it was centrally relevant to the
question that was raised in the second case, the question

of the credit of a key, potential or actual witness in

LIVESEY's situation.

HIS HONOUR:  Yes, it is difficult to see how in a reasonable

apprehension case something said that was irrelevant

to all the issues in a case would really have a

bearing.

MR MASON:  Yes. Now, if it is marginally relevant, well then

that may turn upon whether the reasonable observer

S1T4/l/BR	18	1/2/89
Grassby

would treat that finding, if appropriately made in the present case my learned friend then as it were sort to make good the relevance of the finding of fact by
earlier case,as evidencing an inappropriate predisposition.

saying that His Honour in WATERHOUSE found or indicated

a willingness to find that time only started to run in

1986 and that, he said, was a central issue in GRASSBY.

Not so, in my submission, and may I take Your Honour

to page 8 in the first place.

There are really two points I wish to make here.

The whole thrust of the attack by the Court of Criminal that it was inappropriate for the magistrate to sit in

judgment upon the decision to prosecute the criminal

defamation and he had in his reasons for staying the
proceedings indicated that the charge in his view
should never have been brought, was only a back-up

charge to the conspiracy case and that Mr Grassby had

suffered enough harassment at the hand of the Crown.

It was to reiterate the point that Your Honour

has mentioned this morning that BARTON's case made

plain that this was not an appropriate matter to be

reviewed under an abuse of process decision, that the

separation of powers was such that the decision on

that regard was for the executive; the power to
stay after the decision had been taken was for the

court. That was the central finding in the Court
of Criminal Appeal's decision and that was sufficient

to lead to the quashing of the stay and in view of

what the magistrate had said about there being really

nothing else left to do and in view of the terms of

section 41 then it was inevitable that there would be

the direction --No	4 which is that which is complained
about.

The court said that at page 8 and Your Honour will

have read the other parts of the judgment where its

reasons were given. At page 27, may I read one passage

which is immediately before the bit that my learned

Appeal addressed the question of whether time started	out, on page 27 and following the Court of Criminal friend started to read. As my learned friend pointed	to run in 1980 and 1987, but the immediately preceding
sentence or paragraph makes plain that what the court was saying was, the magistrate did not have power to
stay by reason of an unfair trial. In any event, if
he did, he exercised wrong grounds. It will be a
matter for the trial judge. And then in the last
sentence of that paragraph:

The matters considered by the magistrate have,

however, been debated in detail during the

course of this appeal and it may be helpful to

the trial judge if this Court's views concerning

those matters were expressed briefly.

S1T4/2/BR	19	1/2/89
Grassby
HIS HONOUR:	Now, does	an appeal ..... lie from an exercise

of discretion by the trial judge to stay or not to

stay to the Court of Criminal Appeal as distinct

from the Court of Appeal? There was an amendment to

the legislation, as I recall it.

MR 11ASON:	Yes, that is correct.
HIS HONOUR:	And the purpose was to take it away from the

Court of Appeal, divest it in the supreme court subject to an appeal to the Court of Criminal Appeal.

MR ~.iASON:  Yes.

HIS HONOUR:  I see. So that we have got the situation here that

what follows from page 27 onwards was a review of the

position by the Court of Criminal Appeal with a view

to providing assistance to the trial judge in the event

that an application was made to the trial judge for a

stay. And, of course, whatever be the fate of the

special leave application and the appeal in this present

proceeding in this Court, there is no basis on which
this Court would review what the Court of Criminal Appeal

said on this branch of the case, for the simple reason it did not result in an appealable order of any kind.

MR MASON:  That would be my submission. And therefore any error

in relation to when time started to run,and I submit

none has been suggested really by my learned friend in

his argument, and any relevance of Mr Justice Hunt's

remarks in WATERHOUSE about that factor become matters

that are not relevant to the issue upon which the

Court of Criminal Appeal decided the matter and made

its orders and for that reason,applying the test in

LIVESEY - and I have regard in particular to a short

passage at page 300 in the judgment in 151 CLR, at

the very top of the page:

It is, however, apparent that, in a case such

as the present where it is not suggested that

there is any overriding consideration of

necessity, special circumstances or consent of

the parties, a fair-minded observer might

entertain a reasonable apprehension of bias by

reason of prejudgment if a judge sits to hear

a case at first instance after he has, in a

previous case, expressed clear views either

about a question of fact which constitutes a

live and significant issue in the subsequent

case or about the credit of a witness whose
evidenc is of significance on such a question
of fact.

Now, as the case has worked its way out through the

judgment of the Court of Criminal Appeal, the remarks

by Mr Justice Hunt in the earlier decision clearly do

not, in my submission, fit in with that test.

SlT4/3/BR	20	1/2/89
Grassby

Your Honour, just in closing on bias I would

iterate that it does not appear that the test is in

issue, it is the application of it, and it would be

relevant in the decision whether or not to grant
special leave to have regard to the correctness of
the actual decision even if there was a possibility of

the matter being vitiated in its particular instance

by a possibility of bias.

Now, turning to the correctness of the decision

it is - - -

HIS HONOUR:	That must be right in th~ sense that if the case admits only one result then· there would be no point in
granting special leave or even in hearing the appeal
with a view only to dismissing it.

MR MASON:  Yes. Now, if I may just lead from that to one of

the other points. My learned friend sought to highlight

the general importance of the question of whether a magistrate has a power to stay the criminal process

after the magistrate has heard the matter. In my

submission, the Court of Criminal Appeal decision was

clearly and demonstrably correct in saying that that

power does not exist, but secondly, I would submit

that even if that itself were a matter of general public

importance to be examined by the court, it is not going

to lead in this case to any success so far as this

particular applicant is concerned and therefore ought

not to ground a stay at this stage of the proceedings

in this Court because it is quite clear that the

magistrate's judgment was vitiated by errors, particular

errors. The proceeding having gone all the way up to

the end, he having stated his satisfaction of the

relevant tests in section 41 and he having then granted

a stay on grounds that were clearly inappropriate, so

that, in my submission, the Court in considering the
likelihood of granting special leave and in considering
whether, if special leave were granted, it would lead

in effect to a reversal of a decision to corrnnit, it

would be very unlikely that that issue would be

determinative in the applicant's favour.

On the other issues, namely, the specific errors

assigned to the magistrates reasoning, in my submission

they were demonstrated clearly and that nothing my

learned friend has said today has provided any basis
for considering that there is an arguable case of error.

I do not wish to develop the question of whether my

friend should have gone to the Court of Criminal Appeal

before coming here. I simply submit that that appears

to be part of the practice as stated by the court in

recent years.

Turning to the balance of convenience, this

corrnnittal has run its course and all the benefits, if
one can use that expression, to both parties have been

achieved. It was wrongly stayed and it is quite clear,

SlT4/4/BR	21	1/2/89
Grassby

in my submission, that we are now looking at the

matter going on quickly, one hopes, for a trial with

a possibility, a real possibility, that the stay

application will be renewed in a proper jurisdiction,

namely, before the trial judge.

The affidavit of Mr Favretto which I handed up

this morning contains in its last two paragraphs some

information about the listing situation which is
relevant to the balance of convenience, in my submission.

And in substance tt, is this: if the committal order

is made tomorrow and if, as the Court of Criminal Appeal

indicated, the matter shoul'd.proceed with some expedition,

the earliest callover in the supreme court would be

10 February and the earliest trial date - - -

HIS HONOUR:  Now, this is paragraph 9, is it?

MR MASON:  9 and 10, yes. The earliest trial date that would

be allocated would be June. If the matter were not

dealt with until May or June - I think that date was

picked as a likely hearing date of any special leave

application - ~ would be looking at possibly a December

hearing date. What this means in the present context is,

in my submission, that no real or significant prejudice

is suffered if the formal order of committal is made	tomorrow. If the 1Court were to grant special leave in
May or June there would be ample time at that stage to
make appropriate orders to defer the trial. It is
quite clear, as we would understand the position, that
this - - -

HIS HONOUR:  You say if the Court were to grant special leave

in May or June. As I understand it there would be a

prospect of this case coming on for hearing in March.

MR MASON:  Coming on where, Your Honour?

HIS HONOUR:  In the High Court. That is the special leave

application in March.

MR MASON"":c And it would be a criminal special leave.

HIS HONOUR:	It would be a criminal special leave application.
MR MASON:	Well then, if the Court heard the matter and found

in Mr Grassby's ::faYOur there would be ample time in

which to put an end to the trial that would then be

fixed for some months hence. If the stay is granted
now nothing will happen, as it were, to get the

matter in a queue for a trial and we are looking at

about six months delay between callover and a possible

trial date.

SlT4/S/BR	22	1/2/89
Grassby

HIS HONOUR:  Mr Solicitor, what would be the position if

no stay were granted, the magistrate committed

for trial tomorrow and the applicant proceeded

with its special leave application and appeal?

What would be the position and jurisdiction of

this Court?

MR MASON:  On the assumption that a bill is found and the

matter was set down for hearing in the supreme

court, this Court would, if it thought that the

matter should have peen stayed by the magistrate,

have power to set aside the decision of the Court

of Criminal Appeal to make the correct decision

and if that decision were that the magistrate

should not have - well, a decision could be that

the magistrate should not have - - -

HIS HONOUR:  It would reinstate the magistrate's dismissal of the information.

MR MASON:  Yes. The way I sought to work this through in

my thinking~ in my submission - is that what would

happen if the magistrate had refused a stay and
committed and the matter then went on an appeal?

The Court of Criminal Appeal and/or the High Court

could, in my submission, say a stay should have

been granted in some appropriate circumstances

and have set aside the order of the magistrate
committing and made an order staying the proceedings

at that stage. This Court would, in my submission,

have the power to delve back into the magistrate's

court, as it were, by putting the matter back in

the magistrate's hands. Alternatively, if this Court
thought the matter was one that ought to be stayed

then there would be no difficulty in this Court exercising the supreme court's power which they

acknowledge they had to stay the matter itself

without bothering about what the magistrate had

done concerning committal.

HIS HONOUR:  Yes. The difficulty though would be that although

the High Court could set aside the order made by

the Court of Criminal Appeal and,if it were not

futile, could dismiss the information, in fact,

what would have happened in the intervening period

of time is that a bill would have been filed.	Now, what
about the proceedings consequent upon the filing of	jurisdiction would the High Court have to do anything
the bill?

MR MASON:  It would be my submission that the Court could

order the matter to be sent back for further hearing

on the committal. That does occur from time to time

where there is an ex-officio indictment and the

court has said, "That indictment should be stayed

pending a committal." This Court could say, "The

hearing of that bill, that indictment, should be

stayed pending the further hearing of the committal

SlTS/1/PLC	23	1/2/89
Grassby

proceedings before the magistrate." It would have

that power. Alternatively, it could by its

reasons, if it indicated not only that ..

Mr Magistrate Williams was wrong but that tnis

was a suitable case to be stayed - of course, they

are separate questions - but if that was the

Court's view and that was indicated, then quite

clearly that matter would be taken into account

in a stay application that would then be made to the

trial court. But I would concede that this Court

would have the pow~r, in effect, to undo the
committal, to recommit it in a different sense to

the magistrate and by that .m~ans preclude the trial

proceeding on the indictment until the committal

process had been duly completed.

HIS HONOUR:  Yes. I suppose the Court would, in any event,

have power to make a declaration whatever the

limitations may be in terms of making an order

staying proceedings that were consequent upon the

filing of a bill.

MR MASON:	Yes.
HIS HONOUR:	So that it may not be beyond the power of the

Court to grant effective relief at that stage.

MR MASON:  I am submitting and, if it is relevant for the

purpose of this case, accepting that it would be

within the power of the Court to do that, if that

is a relevant fact to be taken into account.

HIS HONOUR: But, of course, there is the other problem too

to which you have adverted: why should the Court

exercise its jurisdiction in this case when it is

open to the applicant to make an application embracing

all the matters that were taken into account by the

magistrate to a trial judge?

MR MASON:  Yes. So, as Your Honour saw there were some

statements in the judgment of the Court of Criminal

Appeal about not allowing the grass to grow under	anybody's feet. After all, the statement does	involve events of 1980 and there would be some
concern if there were any undue delay in the ultimate trial if it is to proceed and, in my
submission, a refusal of the stay does not lead to any prejudice even if an arguable case that special
leave would be granted had otherwise been made out.

HIS HONOUR:	Yes, thank you, Mr Solicitor. Yes, Dr Woods?
DR WOODS:	Your Honour, may I refer to the question of the

balance of convenience firstly? If the matter were to proceed in the way that this application was not to be granted, the inescapable consequence will be, in terms of my client's position, that notwithstanding

SlTS/2/PLC	24	1/2/89
Grassby

that there is a special leave application proceeding

and notwithstanding that that may be an arguable

and, indeed, strongly arguable case, he will

attract the headlines that will undoubtedly flow

from the committal which would take place in the

normal course of events tomorrow unless an order a case which has attracted enormous publicity.
is made by this Court. It is a matter of which

It is said in BARTON's case that there are a

multitude of reason's why committal proceedings

are important and one of those, I would

respectfully submit, is to avoid the unnecessary

ordeal of trial or committal for trial in cases

where it is inappropriate. My client has already,

as a result of these proceedings, lost his job;

suffered enormous financial and personal difficulties.

It would be, in my respectful submission, appropriate

for this Court to recognize the reality of that fact

and, if the Court does see that there is an arguable

proposition on the special leave application, to

make the order sought. The Crown will not be

disadvantaged. This is not a case, despite its

age, where there are multitudes of witnesses for the

prosecution. It is a case which is largely, the

way it has been constructed now, on paper.

Mr Grassby gave evidence before the Nagle Inquiry;

the material is there. Another six months is not

going to make all that much difference. It is a matter

for the prosecuting authorities to construct their

list. Of course, Your Honour, it is a case where we

are asking you to interfere with committal proceedings

in the sense that certain consequences will probably

follow tomorrow unless an order is made. But it is,

we say, an exceptional case in that it is something
extraordinary that, regardless of the accuracy or

otherwise, it is highly unusual that a judge will make

in the course of proceedings in open court in one

matter comments upon pending proceedings of an unrelated

type. We say that that element of unusualness

justifies this Court in making the orders sought.

Secondly, my friend argued that the point which I put to you with respect to whether the prosecution

was seized in 1980 or seized in 1986 of the matter

for the purposes of the law of abuse of process - he

says that is irrelevant because it does not go to the

decision that was made by the Court of Criminal Appeal.

Now, with respect, we submit that that is not the case,

the magistrate clearly had delay in mind. In the

course of proceedings before the learned magistrate

there were a series of applications for stay. It is
the practice in committal proceedings, consistent with
the notion that they should proceed expeditiously, for

magistrates to reject early applications and say,

"Well, let's hear the evidence." Now, that is, in

effect, we say, what happened in this case. He let

SlTS/3/PLC	25	1/2/89
Grassby

bias demonstrated or reasonable apprehension of bias demonstrated on some side issue,clearly,

the matter proceed; the evidence came before him. were

we have not got a case, we accept that. But the

particular point in question goes to the crux of
this whole case; goes to the crux of the appropriateness
of the stay. If the police did appropriately have

within their power the opportunity to prosecute and

they let it go for six years, we say it justified a

stay and justified.~hat the magistrate did.

HIS HONOUR:  Dr Woods, the Court norm~lly grants a stay in

circumstances where the granting of the stay is

necessary for the purpose of preserving the
subject-matter of the litigation. Now, you cannot

say, can you, that a stay is necessary on that

ground in this case?

DR WOODS:  Your Honour, in this case we say that the consequences

of not granting a stay are such that my client will

suffer the harm of further adverse publicity from

the process of commitment.

HIS HONOUR: That is another matter, is it not?

DR WOODS:	Your Honour, we say that is a prejudice which - - -
HIS HONOUR:	It may be a prejudice but what I am putting to you

is that the ordinary case in which the Court grants

a stay is where it is necessary to grant the stay

for the purpose of preserving the subject-matter or

the integrity of the litigation.

DR WOODS:  Your Honour says that the matter might get on

before this Court in March. Of course, I do

not put the proposition to you that the Court

would be affected by any publicity that flows.

HIS HONOUR:  Of course, it would not.

DR WOODS:  Of course, it would not be but none the less it

is not only the Court that is an integral part of

the process going forward, it is also my client.

He, like Her Majesty, or the Director of Public

Prosecutions is apart of this exercise; he is a part
of the litigation and he is part of the substance

of the litigation and we say that the reality is

that he - - -

HIS HONOUR:  I mean, the principle does not relate to the

party, the principle relates to the subject-matter

of the litigation.

DR WOODS:  Your Honour, let me put it to you that although

that is the normal basis upon which a stay is

brought, the circumstances of this case are such that within the broad terms of the stay power it

would be appropriate to order a stay. This is a

SlTS/4/PLC	26	1/2/89
Grassby

case where we concede that the listing arrangements

are such that the appeal will probably get on before

the matter would come to trial. But the difficulty

we have is that if it is listed for trial in June

and it is listed in the High Court in March, perhaps

at a late date, it will be necessary for Mr Grassby,

his legal advisers with limited facilities and

resources, to prepare two cases at once.

HIS HONOUR:  But it is not difficult to prepare a special

leave application.

DR WOODS: That is so, Your Honour, but as Your Honour

foreshadowed it is a case in'which - and I agree

with the proposition that a substantial effort

needs to be made. One does not go to the High Court

without making substantial efforts. Your Honour,

it is a very complicated trial. If the trial proceeds

in June, that gives us six months for the litigation

in the High Court and the trial. With respect, given

the expenditure and difficulty that my client has

already been put to in these proceedings, it would be,
in the circumstances, inappropriate that he should be

compelled to divert his attention, divert his resources.

The trial itself involves - - -

HIS HONOUR:  But the presentation of this special leave

application does not call for the employment of vast

resources. The case has already been presented to the

magistrate; it has been presented to the Court of

Criminal Appeal; it has been, basically, prepared.

You have even prepared it for the purpose of presenting it today.

DR WOODS:  Your Honour, that is true. That is true, but the

process of - it is a case which involves such a

degree of complexity that the trial - - -

HIS HONOUR:  What, the trial?

DR WOODS:  The trial itself will be very complex. The High Court

application will, inescapably, involve the diversion

Gf counsel's resources and solicitors' resources.

HIS HONOUR.: For one day?

DR WOODS:  No, Your Honour. No, with respect, one does not

go to the High Court in one day.

HIS HONOUR: Well, a lot of other counsel do.

DR WOODS:  Your Honour, I certainly do not although I must say

I have on occasion - I recall an occasion before
Your Honour when I had forgotten to prepare a case
list and I felt suitably chastized and I was.

Inescapably and in reality, and also not just in

terms of time but in terms of money, how will this

man contend with the necessary investigations, the

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Grassby

preparation of the trial which will take a long time.

It does not really disadvantage the Crown. We say

the substance of the High Court appeal will itself,

in reality, be prejudiced by an order being made now.

It is not necessary for the Crown's position,

with respect. It is an old matter, true, but the

essence of that, we say, is the prosecuting

authorities.' very own fault and for them now to

contend that speed is of the essence, with respect,

is in contradistinction to the conduct of other

arms of the prosecuting authorities at an earlier

point in time. · ·

(Continued on pag~· 29)

•

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DR WOODS (continuing):	We say that there would be prejudice

to the substance of the High Court case and on

balance of convenience there is no real justification

for doing anything other than making a stay. The

stay does not exculpate Mr Grassby, it merely determines

that there is an arguable proposition before the Court;

it will be dealt with swiftly. Your Honour has indicated

that the High Court list is such that it can be dealt

with relatively swiftly, and for those reasons,

Your Honour, we contend that the matter is one where a stay is justifi~d.

HIS HONOUR:  Why did you not apply to. the Court of Criminal Appeal

for a stay?

DR WOODS:  Well, I must say frankly I did not think that it was

in fact the practice. I have been before this Court in

other cases in which that has not been done and the

point has never been taken as far as I know.

HIS HONOUR:  Ever since BURGUNDY ROYALE it has been considered

that it is appropriate for somebody who seeks a stay

to apply to the court appealed from first and

BURGUNDY ROYALE is now at least two years old - I would

have thought three~years old.	When was it decided,
Mr Solicitor?

MR MASON:	1986, Your Honour - December.
HIS HONOUR:	December.
DR WOODS:	Well, Your Honour, if in fact it is the practice - which I accept it if Your Honour says so that that
is in fact the practice.
HIS HONOUR:	Well, you do not have to accept my word. All you have got to do is read BURGUNDY ROYALE.

DR WOODS:  Yes, Your Honour, exemplifying precisely why

going to the High Court is not a matter of one days

exercise in effort.

HIS HONOUR:  Maybe it only requires half an hours effort

well directed, Dr Woods.

DR WOODS:  That is probably so, Your Honour, but with respect,

I would submit that there is nothing that would

technically inhibit this Court from making the order.

, I certainly will not put the proposition to you that

the Court of Criminal Appeal would probably have

rejected the argument anyway but what I will say is

that the - - -

HIS HONOUR:  It would be against your interest to put that.

DR WOODS:  Yes. The decisiveness of what the Court said, the

terms that it used, the tone that it employed, has

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Grassby

been such as to impel the magistrate to feel a sense

or urgency.

HIS HONOUR:  Yes, I can understand that. I do not detect any

note of encouragement for you in the judgment of the

Court of Criminal Appeal.

DR WOODS:  No, Your Honour. And again, if I had been aware, as

I was not and I apologize for my ignorance, that it

was the practice we would have done it, but again it

would have been anpther financial difficulty. The

matter now being before Your Honour, I ask Your Honour

to exercise your undoubted power to make the order.

Those are my submissions. ·

HIS HONOUR:  Yes, very well. I will give my decision in this

matter at 2.15 this afternoon.

AT 11.37 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

..

41.

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Grassby

UPON RESUMING AT 2.19 PM:

HIS HONOUR: 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

connnittal 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.

In coming to this conclusion I recognize that

the applicant has the considerable burden of showing,
first, that it is an appropriate case for the grant

of special leave, in particular that it is proper

for this Court to intervene at what is an

interlocutory stage of the criminal process, when he

could make an application for a stay after connnittal;
and secondly, that the decisions of the Court of

Criminal Appeal are incorrect. The Court can hear

the application in the March or perhaps the April

sittings of the Court and this should not entail

any significant prejudice to the Crown in the event

that the application fails and the matter goes to

trial.

I therefore make an order staying order No 4

made by the Court of Criminal Appeal until the

determination of the applicant's application for

special leave to appeal.

I also order that the applicant file and

serve on the respondent a comprehensive outline of

the argument to be presented in support of the

application for special leave, that argument to be

filed and served on or before 15 February, and I

order the respondent to file and serve a comprehensive

outline of its argument on or before 1 March 1989.

It is possible that the Court could hear the

case in March but there is a case called Jago which

may perhaps involve similar considerations at a

31

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Grassby

different stage of the criminal process. Jago,

I think, is likely to be heard by the Court in the April sittings of the Court. Now, it may be better

that the two cases are heard together.	Do the
parties have any view on that matter?

DR WOODS:  That sounds sensible and convenient. That is no

difficulty for us.

HIS HONOUR:  What about you, Mr Solicitor? . .

MR MASON:  Yes, we would support that. It has elements of

personal convenience as both my junior and myself
are on opposite sides in Jago, but the issues could
well overlap. For one thing the GRASSBY judgment

addresses some of the issues in the Jago case.

HIS HONOUR:  As I understand it at the moment, there is a

for the two cases to be listed together, this case

likelihood that Jago would be listed for hearing on,

to follow Jago'.s case and if that is convenient to

the parties, I will see what can be done tc

implement that.

Court will now adjoumsine die.

AT 2.23 PM THE MATTER WAS ADJOURNED SINE DIE

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