In the Matter of An Application BY John Richard Walsh

[2011] HCASL 7

IN THE MATTER OF AN APPLICATION
BY JOHN RICHARD WALSH
[2011] HCASL 7
M146/2010

1. The Acting Registrar of the Court of Appeal of the Supreme Court of Victoria advised the applicant that an application he made for an order that a grand jury be summoned pursuant to s 354 of the Crimes Act 1958 (Vic) (now repealed) did not satisfy the terms of s 354. Her ground was that s 354 required a committal hearing to have been held, and none had been.

2. The Court of Appeal (Warren CJ and Mandie JA) dismissed a summons filed by the applicant challenging the stand taken by the Acting Registrar.  The applicant's argument was summarised by the Court of Appeal thus:

   "Mr Walsh submits that the fact that a Magistrates Court has not declined or refused to commit the alleged offender is not fatal to his application because when he commenced a private prosecution against the alleged offender it was taken over by the DPP and was terminated pursuant to powers in that regard. Mr Walsh submits that, as a consequence, the position should be regarded as analogous to or the same as one in which a Magistrates Court did decline or refuse to commit the alleged offender. He says that the termination of his private prosecution had the indirect effect of a declining or refusing to commit. Mr Walsh further submits that an alternative pre-condition of s 354 is satisfied in that no presentment has been made against the alleged offender (again because of the termination of his private prosecution which had the effect of preventing such presentment)."

3. The Court of Appeal in effect held that the language of s 354 had to be satisfied and that the applicant's method of sidestepping it was not available.

4. The applicant's summary of argument filed in support of his application for special leave to appeal to this Court does not demonstrate arguable error in the conclusion reached by the Court of Appeal.  The applicant's application for special leave must be dismissed:  to grant it would be futile since any appeal would fail.

5. The application is dismissed.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

J.D. Heydon
9 February 2011 V.M. Bell