Grollo v Bates & Ors; Howard v Bates

[1994] HCATrans 236

·~

~

IN_THE HIGH COURT OF AUSTRA.f.1!ff4''1'

Office of the Registry

Melbourne Nos M18 and Ml9 of 1994

B e t w e e n -

BRUNO GROLLO

Applicant

and

KIMBERLEY ELIZABETH BATES

First Respondent

LINDA DESSAU

Second Respondent

PETER MACAULEY

Third Respondent

COMMONWEALTH OF AUSTRALIA

Fourth Respondent

Office of the Registry

Melbourne Nos M20 and M21 of 1994

B e t w e e n -

ROBERT CHARLES HOWARD

Applicant

and

KIMBERLEY ELIZABETH BATES

First Respondent

Grollo(2)	11/3/94
MASON CJ
TOOHEY J
McHUGH J

LINDA DESSAU

Second Respondent

PETER MACAULEY

Third Respondent

COMMONWEALTH OF AUSTRALIA

Fourth Respondent

Applications for removal and
for special leave to appeal

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 1994, AT 3.04 PM

Copyright in the High Court of Australia

MR R. MERKEL, OC: If the Court pleases, I appear with my

learned friend, MR J. BEACH, in the Grollo matters

on behalf of the applicant. (instructed by Arnold

Bloch Leibler)

MR G.J. LYON: If the Court pleases, I appear on behalf of

the applicant, Howard, in these matters.

(instructed by the Galbally Fraser & Rolfe)

MR N.J. YOUNG, OC: May it please the Court, I appear with my

learned friends, MR C.M. MAXWELL and

MS R.E. CARLIN, in each matter for the first, third

and fourth respondents. That excludes the

magistrate. (instructed by the Director of Public

Prosecutions (Commonwealth))

MASON CJ:  The Deputy Registrar has received a letter from

the Victorian Government Solicitor advising that
the second-named respondent does not wish

representations to be made on the hearing of these

matters. Yes, Mr Merkel.

MR MERKEL: If the Court pleases. If we·could first address

our submissions to the question of removal. The

outline of our submissions sets out the

constitutional issues and, in particular, the focus

recently placed on the question of the trial by

jury and the entitlement of an accused not to have

to assist in his or her prosecution as summarized

in paragraph 10 of our outline. We say that the

recent decision of this Court in the Environment

Protection Authority case and also the decision in

Hammond's case indicates that this is clearly a

matter of some considerable importance.

The Commonwealth has conceded throughout the matter to date that the constitutional questions

Grollo(2) 11/3/94

are real and substantial and comprise the principal

issues in the case. Indeed, we would submit they

permeate the case. We would submit that it is in

the public interest that there be a removal and

there are two grounds w~ would put forward for

that. We would say that the evidence in this

matter was that there has been a widespread
applicability by the Commonwealth in the use of
these powers against persons charged with offences
by the route sought in this case, namely via the

Judiciary Act and, in Victoria, through 464M of the

Crimes Act which we would say were enacted for

State offences.

That was conceded in the court before the

magistrate. There is similar legislation in other

States and there is no reason to believe that that

legislation would not be similarly accessed and

there is now the issue arising in that Commonwealth
legislation entitling the police - or empowering
the police to compulsorily require the fingerprints

of accused persons charged with Commonwealth

offences to assist in their prosecution is

currently - - -

TOOHEY J:  Mr Merkel, will the constitutional questions

necessarily be reached?

MR MERKEL:  Your Honour, we would say, for the order to

stand, they must necessarily be reached because the
order itself raises all the constitutional

questions. It is possible that if there was no way

in which the State statutory powers were attracted

to this matter, the constitutional questions need

not necessarily arise in that event. But the
magistrate has purported to exercise power under
the Judiciary Act and therefore, as the order

stands, the constitutional questions must arise.

It has always been accepted and contested by

the parties that the constitutional questions

permeate the matter because the proper construction

of the Judiciary Act itself raises the question of

interpretation of the Constitution.

MASON CJ:	Why should not the Federal Court determine these const~tutional questions in the first instance? I do not subscribe to the view that every time there
is a constitutional question in a court below it
ought to be removed into this Court, simply because
you are going to get a final decision earlier if it
comes up here.
MR MERKEL:	I accept that, Your Honour, and we would submit

that the special reasons that attend the present
matter are, firstly, that the issue that is

arising, if our point be a correct one, would

Grollo(2) 3 11/3/94

demonstrate a widespread abuse of power in respect

of the criminal justice system throughout the

country.

MASON CJ:	The Federal Court is c~pable of deter,.aining whether that is the position or not.
MR MERKEL:	That is so, but the second aspect to it is that

it would really not be until an authoritative

determination - and in fact what has been put

forward against us in this case - until a

determination of this Court that the law would be

accepted as - - -

MASON CJ: But that is true of practically every

constitutional point.

MR MERKEL:  I appreciate that, Your Honour. I think all we

can say is that given the concession made as to the

extent that these powers are being used from day to

day against accused persons charged with offences

against the Commonwealth, and what was said below

is that the federal police have been obtaining

evidence under these provisions without any

difficulty for quite some time, that the rights,

not just of my client, but many accused persons are

being interfered with on a daily basis. We say

that is a very serious and very important matter.

We would say that until there is a determination of

this issue, and we would say be this Court, the

outcome of that will remain up in the air.

I secondly say that because this now is

demonstrated not just to be limited, but to arise

under different State legislation - and it extends

just beyond fingerprinting, it can extend to

intercepts, to blood sampling, and now through

Commonwealth legislation, the issue is one of quite

considerable public importance in the criminal

justice system.

Thirdly, the effect of the order of the Full

Court is that until there is a decision by this

Court, there ought not to be a stay on orders made

by the magistrates court in similar circumstances,
because the Full Court adjusted rights of the

parties not between the date of commencement of the

application and trial but really on the basis that

this matter will, on the view of both sides,

probably ultimately, almost certainly ultimately,

come to this Court. We would say that those issues

do make it appropriate for this Court to deal with

the matter, particularly given the view expressed

by both sides - and this has been from the outset -

that ultimately it is unlikely that this issue

would be resolved prior to the High Court dealing

Grollo(2) 11/3/94

with it, either be refusing special leave or

otherwise.

The fourth matter we would seek too put on

that -

TOOHEY J: Just before you leave that, Mr Merkel, the

question of the stay or continuation of

undertakings can be dealt with by the Federal Court

if the matter arises when the Full Court has dealt

with the appeal, can it not?

MR MERKEL:	Your Honour, the problem at the moment is that subject to what occurs in this Court today,
Mr Grollo will be required to give his
fingerprints.

TOOHEY J: Yes, I appreciate that, but that is in the

context of the undertakings that have been given,

is it not?

MR MERKEL:  But the undertakings that have been given,

Your Honour, were only to cease use of the prints

if, after final hearing in this Court, the order is

set aside. In the meantime, they are to be used at
the committal commencing on 11 April and if there

was a trial, they could be free to be used at the

trial, and that really is the essential vice and

injustice that arises on the special leave

application.

So we say that the circumstances that have, in

effect, confronted the applicant in the present

case, where he has sought to get as early an

expedited hearing in each instance as he has been

able to, result in quite a considerable injustice

which will not be capable of being rectified in any

court if these orders are allowed to stand.

But we do say, what we say is the fourth

reason for removal is that the reality of the

matter is that the recent decisions of this Court	have laid down the principles that would govern -
and that is as recent as the EPA case - the use of
power after charge, and that the Court left open,
certainly in the majority decision, the question of
what happens with those principles under the
Commonwealth Constitution, which did not arise in
that case. Now, we say that arises directly in
this case.
But it is for those reasons, together with the reasons we have set out in our outline of
submissions as to why it was appropriate for
removal, and that is at paragraph 13, that there be
a removal of the matter at this stage. We do
emphasize that removal would clearly avoid expense,

Grollo(2) 11/3/94

delay and risk of injustice to both sides and other

accused persons in a similar position. It seems
quite clear that both parties have sought, and do

seek, the speedy disposition of the matter, which becomes all the more essential as a result of tl~

scheme adopted by the Federal Court, both before

single judge and Full Court, for dealing with the

stay, which really is that it is refused and that

the undertakings will not have operative effect

until disposition of the matter in this Court.

We would also emphasize that the removal

cannot interfere with the criminal process because

the Crown has consistently maintained that they

wish to proceed with the committal, irrespective of

whether they get the fingerprints in the present
case, and that has been repeated throughout these

proceedings.

But we have set out the six grounds we would

say are appropriate for removal at this stage and

they are the submissions that we would put as to

why it is appropriate for removal.

The second part of our submissions relate to

the special leave application. I am not sure

whether Your Honours wish to deal with the removal

discretely and then deal with the question of

special leave at the same time.

MASON CJ: Yes, go on with the special leave application,

Mr Merkel.

MR MERKEL:  If Your Honour pleases. The special leave

application raises a number of questions of

principle, a number of questions of error and a

number of question of injustice. If we could,

first of all, address the questions of principle,

but the error which results from them, we say, does

demonstrate an injustice.

There are four questions of principle which we

say arise from the Full Court's decision. The

first is the Full Court propounded a test on an

interlocutory order of this kind as requiring error

and injustice. We submitted to Their Honours that

it is error or injustice and that there should be
no definitive definition of how that should occur.

In fact, the Full Court wrongly stated that we had accepted the principle of error and injustice but

we had certainly put the contrary proposition.	So
that the Full Court wrongly stated a matter in respect of the submissions that we had put.

The second point which is of importance is

that we had put to Mr Justice Gray and to the Full
Court that, particularly in the present case but in

Grollo(2) 6 11/3/94

any case, the strength of the case on the merits

waG a relevant consideration to the balance of

convenience.	Mr Justice Gray refused to hear
submissions on that point at all.	The Full Court

indicated they would return to that question if

they wished to consider it, and did not deal with

it. So they did not deal with the nature or

strength of the case on the question of the balance

convenience, and we submit that that was matter

that was required to be considered.

Thirdly, we say that the undertakings from the

Crown were given in circumstances to facilitate what, on the Commonwealth's case conceded, was a

seriously arguable interference with the judicial

power. We say that was a matter that raises

serious issues and important issues of principle

that were not considered or dealt with by

Their Honours as such.

Fourthly, we say that what happened before the

trial judge and the Full Court was an adjustment of

rights not between the commencement of the

proceeding and the hearing and determination at

trial, but until the hearing and determination of

the matter after final determination in this Court.

We say that there was injustice in the result.

We say that the matter dealt with substantive

rights, not just procedural matters, and there are

three basic points we wish to make. Could I take

Your Honours to page 65 of the application book.

At line 13, Mr Justice Gray put forward essentially

one reason for why there was a balance to be

addressed in favour of the Crown. His Honour

said:

a stay altogether -

which is the stay we sought -

will frustrate the investigative process - As a very secondary and minor matter he said:

and will perhaps delay or fragment the

committal and possibly delay any resulting

trial -

TOOHEY J:	Mr Merkel, can I just interrupt you to ask you, as a matter of timing, are the dates mentioned in
the summary for the hearing of the appeal to the committal as set out in the summary, 21 March and
11 April?

Grollo(2)	7	11/3/94
MR MERKEL:	Yes, Your Honour, those dates are accurate.	The

problem that arose is that His Honour made a

finding that a stay will altogether "frustrate the

investigative process". That finding was made

without any basis whatsoever to support it.	The
investigative process, on the evidence before
His Honour, had concluded.	The fingerprints were

sought solely for the purpose of being tendered in
evidence in the committal and not for any other

purpose. So, at that stage, the primary finding of

fact before His Honour that there would be

frustration of the investigative process, was just

unsupported by any evidence or any inference one

could draw from the evidence. Indeed, on appeal,

it was conceded that there was no basis for that to

be considered as a matter separate from

fragmentation.

So that the sole basis upon which His Honour found there to be a balance that had to be

addressed just did not exist. We say that not only

was there no investigative process, there was no

evidence that whatever was to be done could be

frustrated by the stay.

We say that we suffered a very considerable

injustice concerning that. Not only was there no

basis for the finding before His Honour, but when

we put that to the Full Court, that the central

basis upon which His Honour operated was without

evidence or support, the Full Court did not deal

with our submission in its reasons at all. We say

that there was an injustice and, indeed, a denial

of natural justice in the court not dealing with

that question at all because remove that finding

by His Honour, all that one is left with is -a

possibility that a stay will perhaps delay or

fragment the committal and possibly delay any

resulting trial.

We say that in the events that occurred before

His Honour, where it was open to His Honour to

grant a stay until further orde·r and not move into

the hypothetical or the possibilities, His Honour instead chose his own course. That was a course, not of addressing the question between then and

trial, His Honour not knowing when the trial was to

occur, but really saying, "Well, I don't know when

it will occur; I will allow this to occur so there

is no possibility of fragmentation."

But given the Crown's position, that they were

proceeding in any event, there was simply no basis

to conclude there was a likelihood of

fragmentation, and we say the possibility was a

bare thread on which to hang orders as far reaching

as those that His Honour made - or orders that

Grollo(2) 11/3/94

His Honour in effect made by accepting the

undertakinqs and refusing the stay.

On the second question on the fragmentation,

we have set out at paragraph 29 the facts as they

were before His Honour. The matter, when it came

before His Honour, was ready to be set down for

trial. No interlocutory steps or no further

interlocutory steps were required. His Honour

could not find a trial date and had no idea when

one would be fixed and approached it on that

matter. We say to use the possibility of

fragmentation, particularly when it would not be a
matter that would delay the committal, was somewhat

unjust and really had no proper basis for it.

The third aspect of the order is that

His Honour made orders for the purpose and with the

intention that if the applicant is successful, the

applicant could not be restored to the position

that he would have been in if he succeeds at trial.

In paragraph 25 of our outline we set out the reasons for saying that there is no way he could

avoid the injustice that will arise if that stay is

refused and he is required to submit to an order

which he contends is being forced upon him without

power.

We have set out at paragraph 25 the

consequences of that, that he will be irreparably

harmed in relation to the committal proceedings

because evidence will be sought to be relied upon

not able to be used at his trial; he will lose the

rights of an accused on a committal in respect of

these matters; and he will be required to infringe
the principle so recently discussed in this Court

in the EPA case of where an accused person is not

required, he cannot be required by testimonial

evidence or otherwise to assist in the prosecution

of his own case against him. This is not a case

where what is sought is part of some wider process.

This is a case where what is sought is solely for

the purpose of being used against the applicant in
the criminal process which the Crown has instituted

against him and would be used against him at his

trial.

We would say, thirdly, there was injustice in

the process by which this matter was dealt with.

Their Honours did not deal with our primary

submissions on frustration or the strength of the

case. Their Honours applied a test of an error of

law, not the House v The King case, by saying that

there was inadequate or too much weight. They said

we had failed to demonstrate that His Honour had

not even considered the matter.

Grollo(2) 9 11/3/94

Could I finally go to the question of the

motion. After the decision of His Honour, a trial

date was fixed for 21 March and it was put that

that was a changed circumstance. The Full Court

adopted as a principle that the applicant must

establish the occurrence of events which are shown

to have been outside the contemplation of the trial

judge. We say that that is a wrong principle and

it stands as a principle in the Federal Court in

respect of changed circumstances. Certainly in

this Court in Phillip Morris Your Honours adopted a

far lower threshold and, indeed, in doing so said

that was not the only circumstance where there

would be a right to set aside an interlocutory

order. The trial date having been set within a

time the Crown had accepted would greatly weaken

their arguments for a refusal of a stay, the very

event the Crown had conceded before His Honour

would weaken their case, had occurred. We say that

that is clearly a changed circumstance and we say

the test enunciated was wrong in principle and its

application resulted in an injustice. We would

submit that that does raise an important question

for this Court.

TOOHEY J: Given the timing of events, Mr Merkel, and the

likely hearing of any appeal if special leave were

granted, the grant of special leave would not avail

you, would it, unless it were accompanied in turn

by an interlocutory stay or the sort of

undertakings that have already been given by the

respondents.

MR MERKEL:  Your Honour, that is right, except we would say

this, that if the Court granted special leave the

stay could be until further order and the trial

would commence, if this Court does not remove the

matter, before the Federal Court on the 21st, and

we would say that the trial judge having heard

argument, and completing the matter within a period

well in time for use of the evidence at the

committal, is best placed to deal with the matter
then.	We say that what this Court could do is, if

it were prepared to grant special leave, was to
grant a stay until further order, it being

indicated that really the matter should be dealt

with - or can be dealt with by the trial judge in

his unfettered discretion on the conclusion of his

hearing, which will be on 23 or 24 March.	We say
that the injustice of that course not being

followed is demonstrable in the present case.

TOOHEY J: But without an interlocutory stay in the

circumstances that you have mentioned, you are no

better off than you are at the moment.

Grollo(2) 10 11/3/94

MR MERKEL:  No, but Your Honour, we would need an

interlocutci:i..'Y stay. but in ef feet to enable the
trial judge to deal with this matter because his

consideration of the matter on a final basis puts

him in a unique position and the only person well

placed to deal with what should happen concerning

this issue. We say that the decision and way in

which this matter has been handled by the Federal

Court is a wrong application of principle, a wrong

enunciation of principle and an injustice. The

combination of those circumstances say that this

Court should ensure, in the administration of an important aspect of the criminal justice system,

that that injustice is avoided. It can be avoided,

not necessarily by having a stay until the hearing

and determination of the appeal, but by a stay

until further order which enabled us to put these

matters to the trial judge who would be well placed

to know, one, when he will deal with the matter and

whether it would be well before committal; two,

whether there was substance or an absence of

substance on the substantive issues; and three, no

injustice of any kind could be suffered by the

Crown or the applicant if it were dealt with in

that way. No unfair advantage could be gained, nor

would the system be brought into the kind of

disrepute we would say it is brought into if it is
found by the trial judge, in accordance with

Hammond's case, that the taking of fingerprints constituted an interference with the judicial

power.

That would mean the Crown gave an undertaking

which was accepted by the court which constituted a

contempt, or facilitated a contempt. Now, we say

they are weighty issues, and when you weigh them up

in the balance against the very modest relief that

is sought, in effect, a deferral of the

fingerprinting until the judge can hear this

matter, we say that is a way in which justice can

be achieved.

We say that the way in which this matter has

been dealt with, with the greatest of respect, has
just not taken into account the simple fact that it

was within the power of the Federal Court to defer

the matter till a trial date was granted. Had that

occurred, no one would have been before a Full

Court and no one would have been here. So through

no fault of the applicant, he is confronted with

these risks of injustice. We say that now the

Federal Court has been able to accommodate us on a

hearing date, the matter should be set right.

I should add one other thing.

MASON CJ:  Mr Merkel, your time has expired.

Grollo(2) 11 11/3/94

MR MERKEL: Sorry, Your Honour.

MASON CJ:	Mr Lyon.
MR LYON:	Your Honour, the situation in relation to

Mr Howard, the applications by Mr Howard are

identical to the submissions put forward on behalf

of Mr Grollo by my learned friend, Mr Merkel. I

would simply seek to adopt his arguments and the

summary of arguments placed before the Court and
unless Your Honours have any queries in relation to
the applicant Howard, I do not propose to take the

matter any further.

MASON CJ:  Mr Young, could I ask you at this stage what is

your attitude with respect to the removal

application?

MR YOUNG:	Our attitude is this, Your Honour: it is a matter of discretion for the Court. On that question, the
most pertinent factor is the special fixture in the
Federal Court fixed for 21 March. It is our
submission that that - - -
MASON CJ:	I really want to know are you supporting it or

opposing it?

MR YOUNG:  We oppose it, Your Honour, although we do not

have a strong view about it.

MASON CJ: That is all I need to know.

MR YOUNG:	For the reason simply that there is a trial date fixed in the Federal Court.
TOOHEY J:	Your summary sets out the various reasons for an

exercise of discretion against removal.

MR YOUNG:	Yes.
MASON CJ:	The Court will take a short adjournment to

consider what course it will take in relation to

these matters.

AT 3.30 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.33 PM

MASON CJ:  The Court need not trouble you further, Mr Young.

Grollo(2) 12 11/3/94

We do not consider that the applications for

removal should be granted. An early date for

hearing has been fixed by the Federal Court on

21 March and it would be of advantage to this

Court, in the event that the matter should come

which may arise. In the circumstances, the matters should take their normal course in the Federal Court.

here, that we should have the benefit of the questions

The applications for special leave to appeal

relate to decisions made in interlocutory

proceedings. It is therefore necessary that there

should be exceptional circumstances shown before

this Court will grant special leave to appeal. In

our view, no such exceptional circumstances have

been shown. The applications for special leave to

appeal, as well as the applications for removal,

are therefore refused.

MR YOUNG:	If Your Honours please, we would seek costs.
MASON CJ:	You cannot resist that, Mr Merkel?
MR MERKEL:	No, Your Honour.
MASON CJ:	The applications are refused with costs.

AT 3.35 PM THE MATTER WAS ADJOURNED SINE DIE

Grollo(2) 13 11/3/94