Jago v The District Court of New South Wales

[1989] HCATrans 77

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S220 of 1988

B e t w e e n -

NOEL HAROLD JAGO

Appellant

and

THE DISTRICT COURT OF NEW SOUTH WALES

First Respondent

HIS HONOUR JUDGE BARRIE THORLEY

Second Respondent

THE ATTORNEY-GENERAL FOR NEW SOUTH WALES

Third Respondent

MASON CJ
BRENNAN J

DEANE J

Jago(2)

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 APRIL 1989, AT 10.17 AM:

Copyright in the High Court of Australia

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MR J.P. HAMILTON, QC: If the Court pleases, I appear with

my learned friend, MR P.I. LAKATOS, for the

appellant. (instructed by Director, Legal Aid

Connnission of New South Wales)

MR K. MASON, QC, Solici..tor-General for the St~te of New South Wales:

I appear with my learned friend, MR R. SACKVILLE, for the

third respondent, the first two respondents submitting.

(instructed by the Crown Solicitor for New South Wales)

MASON CJ:	Mr Hamilton.
MR HAMILTON:	May we hand up our outline of argument.

MASON CJ:  Thank you. Yes.

MR HAMILTON:  Your Honours, as we formulate them, the central

questions in this appeal are whether delay of itself
may ever justify the grant of a permanent stay of

criminal proceedings and, secondly, whether a stay

ought be granted in this case which is a simple

case where there have been long delays including

an unexplained delay of some five years between
connnittal and trial and some six years between arrest

and trial. Your Honours, perhaps a useful sunnnary

of the delays that have occurred is set out in the

appeal book at page 54 so that Your Honours can see an overall picture in the judgment of the president

of the Court of Appeal, and at about line 20

Your Honours will see that he tabulates various

periods, 11 years from the offences, eight from the

first complaint to the authorities, seven from the

reconnnendation of proceedings, six from arrest and

charge and five from connnittal.

(Continued on page 3)

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}'fR. HAMILTON (continuing): Your Honours, in some places it is

stated that the delay between connnittal and trial is

four and a half years because it is taken up to the

date when the matter actually came before His Honour
Judge Thorley in the district court when the
application was determined; that date was 13 February1987

but, Your Honours, it does appear in the transcript

of His Honour Judge Thorley's judgment at page 24

line 6, that:

The case has not been reached this week -

and, in the district court in New South Wales,

Your Honours, there is a weekly running list where

a number of trials are listed for a particular week.

If reached during that week, they are heard.

So you do not know which day of the week you are going

to come on if you are not number one or two, but at the

end of the week, that running list is cancelled and

there is a fresh running list for the following week

and cases not reached within the week stand over, I

think it is fair to say, for some months until they are

given a position in a new week. So, Mr Jago would not

have come to trial in February 1987, quite apart from

this application,but only at some later and unspecified

date fairly well into 1987.

DEANE J: But, Mr Hamilton, what would be the delay between

connnittal and renewed activity by the Crown? In

other words, what would that five-year period be

if one ignored delays in a matter coming on in a

district court?

}'fR. HAMILTON:  Your Honour~ I think that it was in the middle

of 1986 - June 1986 - the month is in my head, that

it was placed in a short trial callover list.	So
that it would be fair to say that from June 1986

onwards it was taking its ordinary place in the
criminal lists and that delay was inherent in the

court system at that point.

(Continued on page 4)

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BRENNAN J: When was the indictment presented?

MR HAMILTON:· The indictment was presented on 23 February

1987 before Judge Thorley. Your Honour, in

New South Wales, as I understand it, if the case

is called on for trial during the week it is

fixed for, the indictment is then presented;
if it does not come on for hearing during that

week the indictment will not then be presented, it will be presented during the later week when

the matter comes on for trial.

BRENNAN J: Do you mean that cases are put in the list in

the district court without an indictment being

presented?

MR HAMILTON:  Yes, Your Honour. It has been found and shown

but not formally presented. I am not sure

whether there are differences in terminology

between States or jurisdictions within Australia

but in New South Wales it is only when the matter

is actually called on for trial, both in the

supreme court and the district court - the

matter actually commences with the Crown

prosecutor standing up and saying, "I present

an indictment against", and handing it up to

the judge and that, in New South Wales, is taken
to be the point of presentment of the indictment.

Your Honour, there has been some discussion of this when the roles of the different courts

have been discussed and the question of where

these stay applications that have become quite

a frequent occurrence in New South Wales at the

present time go as to when the court becomes

seized of the matter and I think what has generally

been taken is that the Court is seized of the

matter when the file is sent there.

BRENNAN J: That means, to my ears, nothing.

MR HAMILTON:  No. That is the formulation of the way it is

done, Your Honour. As I understand the situation

in New South Wales the magistrate commits and

commits to a particular court, either the supreme

court or the district court, always adding after

that- the words - or generally adding the words,

"or such other court as the Attorney-General

may direct" but I think, as a matter of practice

the case virtually always goes to the court to

which it is committed and so that after committal

the file is in fact transmitted to that court.

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MR HAMILTON (continuing): But, as I say, Your Honour, whilst

a Crown prosecutor finds an indictment at some

point between what is taken in New South Wales as

the presentment is the announcement of presentment

in court at the commencement of the trial and its

handing up. And whilst I was not present before

Judge Thorley, Your Honour, as I understand the

situation, the presentment in this case unusually

took place at a point of time by which time it

was clear that the trial was not going to get on in

that week but the announcement then having been

made that the permanent stay application, with

which this Court is now concerned, was going to

be made, His Honour Judge Thorley indicated that

he would deal with that this week and the indictment

was then presented so as to be formally before the

judge for the application to be made.

Your Honours, there is, in WATSON V ATTORNEY-GENERAL,

8 NSWLR 685, at page 701 irt the judgment of

Mr Justice Priestley, 701E, some statement of the

procedure that is followed in the period that I am

at present being asked about:

My conclusions about the procedural aspects of criminal matters pending in the

District Court between committal for trial

and presentation of indictment, in regard

to persons in custody or on bail during that

period are: (1) The District Court has
jurisdiction to deal with matters relating

to trials that will take place if an indictment

is present. (2) During the period between

cornmittal and trial the Clerk of the Peace is

the custodian of the file -

That has, of course, now changed, Your Honours,_because time -

the Clerk of the Peace has been abolished and the

that corres into existence after the committal

and in which are or should be recorded all

matters relating to any exercise by the

District Court of what I will call its pre-trial jurisdiction. (3) The District

Court's power to require a person who has

been cornmitted for trial before it to appear

before it in exercise of pre-trial jurisdiction -

and various other matters that are stated there.

(Continued on page 6)

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MR HAMILTON (continuing):  Your Honours, having just

mentioned the question of bail, may I draw to

Your Honours' attention that throughout the period

of committal Mr Jago was subject to bail upon

conditions which included his weekly reporting to the police station in Taree and his passport remaining in

the custody of the officer in charge of the police

station at Taree, so that there were quite stringent

bail conditions which imposed limitations upon his

movement.

Your Honours, we say that the questions that we

posed as the central questions were correctly answered

in this case by His Honour Justice McHugh, a learned
judge of the Court of Appeal, but were erroneously

determined by the other members of the court and,

Your Honours, there are two principal matters of

error of which we complain:  the first is that we

say that Justice McHugh was right in finding that

there is in the common law, certainly in the law of

New South Wales - and I make the modification because

there is a statute to which I will take Your Honours -

a right of speedy trial distinct from and different

to, although perhaps overlapping to some degree with the right to fair trial which it is generally agreed

exists and may be enforced by the courts by their

rights to deal with their own process and to restrain

abuse of them.

(Continued on page 7)

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MR HAMILTON (continuing):  Your Honours, that situation is

stated quite shortly by Justice McHugh in the

appeal papers at page 91 commencing at line 8:

In ABOUD V ATTORNEY GENERAL I pointed out that the right to a speedy trial is distinct from the right to a fair trial. The speedy trial

right is a common law right. It does not

depend on statute. It needs no Constitution

to enshrine it. As the United States Supreme Court

has acknowledged, Magna Carta and the common

law are the source of the Sixth Amendment to the

United States Constitution right to a speedy

trial -

and His Honour refers to KLOPFER V NORTH CAROLINA
and then His Honour says something further on that

at page 96 of the book commencing at line 14:

The weight of authority -

in His Honour's conclusions -

in favour of the right to a speedy trial is

supported by Coke, Dicey's interpretation

of the HABEAS CORPUS ACT, the United States

Supreme Court in KLOPFER V NORTH CAROLINA and
by this Court in HERRON V McGREGOR. So far

as I am aware there is no authority which

holds that there is no such right. In these

circumstances, I do not think that this

Court should hold now that there is no common law speedy right to a trial because of

conclusions to be derived from the writings

of later historians.

The reference to "later historians" refers back

to some detaile9- historic analysis in Justice Samuel's judgment,

a copy of which Justice McHugh had seen before

its publication.

(Continued on page 8)

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:MR HAMILTON (continuing):  Your Honour, His Honour spells

the matters out, perhaps, a little more fully in
the case that he referred there, ABOUD V ATTORNEY-

GENERAL, (1987) 10 NSWLR 671 and the passage in

which he deals particularly with the existence of

the right is at pages 691G to 693C. His Honour

there refers to HERRON V McGREGOR and BARKER V WINGO.

The right to a speedy trial is one of freedom's

guardians. It is one of the great connnon law

rights -

at the top of page 692 -

The Supreme Court of the United States has

identified three interests of an accused

person which the right to a speedy trial is

designed to protect. They are: (i) the

prevention of oppressive pre-trial
incarceration; (ii) the minimisation of
the anxiety and concern of the accused and
(iii) the limiting of prejudice to the

presentation of the accused's defence - and His Honour refers to BARKER V WINGO and the

UNITED STATES V EWELL.

To these three interests should be added the

interest. of the accused in protecting his

reputation and his social and economic

interests from the damage which flows from
a pending charge: cf KLOPFER V NORTH CAROLINA.

But society also has interests which a speedy

trial protects. A speedy trial ensures that

vital prosecution evidence is not lost. It

ensures that those who should be incarcerated

for the protection of society are locked away

swiftly and that those who can be reformed

undergo rehabilitation and guidance as soon

as possible. It ensures that the lapse of

time between offence and conviction will not

A speedy trial also saves the great expense which delay and postponement inevitably cause.

Many countries and connnunities have given the

·right to a speedy trial the status of a

constitutional guarantee.

lessen the deterrent value of any conviction.

(Continued on page 9)

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MASON CJ:	What is the source of it?
MR HAMILTON:	The source of it, Your Honour, is Magna Carta.
MASON CJ:	But His Honour says that it existed before and 1s

recognized in Magna Carta, so presumably - - -

MR HAMILTON:  Your Honour, there is reference made in some

of the writing. It is said that the words repeated
in Magna Carta were first used in the Statute of

Clarendon in 1166.

MASON CJ:	Yes.
MR HAMILTON:	So the historial analysis does start from

there, but the re-enactment that is most often gone

back to is the enactment in Magna Carta of 1215 in

chapters 39 and 40 and in that enactment of the

charter in fact the two sentences that are now in

chapter 29 of the charter as it is in force in New

South Wales were originally in two separate chapters.

May I hand up to Your Honours - we have orovided a copy of the.Statute 25 Edward I c 29 and,

Your Honours, the source of that does

appear at the head. We have taken it from the

2nd edition of Halsbury's Statutes of England

rather than the current 4th edition because the

2nd edition, unlike the 4th edition, provides both

the Latin and the English texts.

MASON CJ:  What do you rely on in that to found the right to

a speedy trial?

MR HAMILTON:  Your Honour, we rely in that upon the second

portion:

We will sell to no man, we will not

deny or defer to any man either justice

or right.

May I say at once to Your Honour the Chief Justice

moment - we do not rely on that through a great void	that we do not - as I will attempt to develop in a
back to 1215. We say that from that source that right
has been taken to be a continuing part of the common
law and that in the United States and Canada, to take
two·examples, the two halves, the two sentences, have been separately given constitutional enshrinement, as the due process rule and the speedy trial rule
separately.

(Continued on page 10)

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BRENNAN J:	What do you contend for as the content of this right to a speedy trial, speed as between what
termini?
MR HAMILTON:	Your Honour, in various places the two

termini that are suggested are that one takes

the trial process as a man, in effect, being

put under threat of his trial when he is committed

so that it is between committal and the commencement

of the trial; alternatively, Your Honour, it

is between the first charge which virtually

universally throughout Australia is by the laying

of an information before justices that

proceedings are first formally brought.

BRENNAN J: That is hard to reconcile with the passage at

the top of page 692 of ABOUD as to the purposes

of them, is it not? ABOUD pleads pre-trial

incarceration.

MR HAMILTON:	I am sorry, Your Honour, which passage was Your Honour referring to?
BRENNAN J: At the top of page 692 of ABOUD.	In identifying

the three interests which are protected by this

right, the first of them is:

the prevention of oppressive pre-trial·

incarceration -

As I understood it, the right for which you contend

is one which commences with the threat of trial,

that is with, in modern terms, committal?

MR HAMILTON:  Yes, Your Honour.

BRENNAN J: If that is the limit of the right for which

you contend, how is it susceptible of preventing

oppression in pre-trial incarceration?

MR HAMILTON:  Your Honour is taking the latter of the two

points? I would put forward, Your Honour, that - - -

BRENNAN J: If a man is arrested and not brought before

justices or not dealt with in any way, does the

right to speedy trial have anything to say to

tha~?

MR HAMILTON:  Your Honour, yes, we would say that it did.

That, in Australia today, I think in virtually

all jurisdictions, is, of course, separately

protected by various provisions which deal with
the subject of anybody arrested being speedily

brought before justices to be dealt with. That

is a period that generally has its own protection

but, Your Honour, certainly, whilst drawing to

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Your Honour's attention that it has been said,

on a number of occasions, that the relevant period

is from committal, we would contend a.right

from the time of arrest.

BRENNAN J: The purpose of my question is that you took

us back to Magna Carta and then in reference

to, as I understood, Magna Carta, you gave content

to the meaning by saying that it was from the

time of committal, in modern terms; if you now

go back to the time of arrest, does Magna Carta

still support that right?

MR HAMILTON:  Yes, Your Honour.

BRENNAN J: Are we just using words as we choose?

MR HAMILTON: No, Your Honour. What we say is -

Your Honours will note that that second sentence

is cast in the royal plural as spoken by the

King and that, of course, today, means a promise

or permitment on the part of the government.

Your Honour, certainly, a man commences to be

brought to justice - to have the criminal procedure

set in motion against him - when he is arrested.

(Continued on page 12)

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MR HAMILTON (continuing):  So that, Your Honour, we put that as

a promise to ensure, from that point of time

henceforward that there will not be a delay in his

being brought to trial. Your Honours, whilst

not seeking to avoid answering Your Honours' questions,

may I make it quite plain that there is material

between this statate in 1297 and today, which

develops it. We certainly put it that that statute

is in force and to be given effect today but there

has been development of it in the intervening time.

TOOHEY J:	Mr Hamilton, you are giving "defer" the contemporary
meaning that it has and you may be right in doing
so. I just wonder whether that is the meaning it has always had or, whether, in fact, that is an
accurate translation.
MR HAMILTON:	Your Honour, I have seen no other translation

suggested. I have seen in some places"differemus"

translated as "delay rather than defer,' the only

two translations that I have seen are "delay" and

"defer" and, Your Honours, I have not seen any

suggestion that that word is not used in a sense

corresponding with the modern word "delay." What

is said about it in his historical analysis,

Mr Justice Samuels narrows the right and, in effect,

says that nothing that could be regarded as a speedy

trial right today could be spelt out of that by

an analysis of the system of judicial arrangements

and the immediate complaints that were being dealt

with by the statute. Although, Your Honour, even in

that case, it seems to go to delay iu litigation

because he suggests that .one of the complaints that

led to the enactment of that provision was the
taking by the Crown of fines from people who sought

to take criminal proceedings and of counterfines

from defendants in each case to grant procedural

advantages and it would seem advantages that, when

taken from other parties, could cause delay.	So
it does seem to be, even on the narrow analysis,

a.delay in the doing of. justice which was pointed

to.

But, Your Honours, as I say, I have seen nothing

that suggests that "delay" or "defer" in the sense

of delay is not the sense in which the word "differemus"

was 1ised in the original Latin text or "defer" as

used in the text in Halsbury's Statutes.

Your Honours, that statute is - that is, the

statute of 25 Edw I - is maintained in force in

New South Wales by section 6 of the IMPERIAL ACTS

APPLICATION ACT 1969. The pattern of the IMPERIAL

ACTS APPLICATION ACT is that by section 5(2) a
number of imperial acts listed in a schedule are
repealed, that is, the acts in the first schedule.

Section 6, which I will come back to, has the s.ide note "Preserved Imperial Enactments" and it

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operates to preserve particular enactments. Then,

in section 8, 8(1) provides:

In addition to the repeals effected by

subsection two of section five of this

Act, all other Imperial enactments (commencing

with the Statute of Merton •.... in force in

England at the time of the passing of the Australian Courts Act -

are so far as they are in force in

New South Wales hereby repealed.

(Continued on page 14)

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MR HAMILTON (continuing):  Your Honours, it is the second

schedule which is divided into two parts, one

headed Constitutional Enactments and the other

headed Criminal Law, Treason, Piracy, that this

statute appears, and it appears as the first statute

in the Part I Constitutional Enactments 25 Edward I

(Magna Carta) c 29. The words of section 6,

Your Honours, are as follows, that:

Each Imperial enactment mentioned in Part 1

..... so far in either case as it was in force

in England on the twenty-fifth day of July,

one thousand eight hundred and twenty-eight -

and then it does three things, or four things perhaps,

it:

is declared to have been in force in New South

Wales on that day by virtue of the -

Australian Courts Act and that, of course, Your Honours,

removes any argument that it was not suitable to

the conditions of the colony or did not otherwise
meet the preconditions that brought English Acts

into effect in Australia on the day on which that

Act commenced. Secondly:

except so far as affected by any Imperial

enactments or State Acts from time to time

in force in New South Wales -

(i) is declared to have remained in force in

New South Wales from that day -

and then perhaps the most important words -

shall from the commencement of this Act be in force

in New South Wales; and is not repealed by

section eight of this Act.

Your Honours, that is perhaps rather an unusual

form of enactment. It does not re-enact the Act

in ipsissimis verbis or by direct reference to the
provision saying that it is re-enacted.	But it

does say, it does provide quite specifically that

the Act shall be in force in New South Wales from
the commencement of the 1969 Act. It is our submission

to Your Honours, it is our primary submission to

Your Honours that that in fact amounts to a re-enactment

of the Act. If it does not amount to a re-enactment

it certainly, Your Honours, is a legislative

declaration of the continuing relevance of the Act

placed as it is in an Act designed to remove

antiquated verbiage and old statutes of doubtful

import from the book in New South Wales. One thing

I did not mention to Your Honours about the pattern
of the IMPERIAL ACTS APPLICATION ACT is that quite

a number of the repealed statutes that are regarded

as of importance are re-enacted in modern language

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which either has the same effect or, in some cases,

is modified and if Your Honours glance through the

balance of the Act that is apparent, for instance,

the CHARITIES PROCEDURE ACT of 1812 is enacted in

modern form in section 17, the force of - just to

take the next section - the FORCIBLE ENTRY ACT.

Acts of 1381 and 1429 are re-enacted in sections 18

and 19. But those constitutional statutes in

Part 1 are declared to be, as well as it being made

plain that they are to be regarded as having come

into force in New South Wales and to have remained

in force in New South Wales apart from legislative

repeal and that they should be in force in New South

Wales henceforward is declared by that Act.

(Continued on page 16)

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MR HAMILTON (continuing):  Now, Your Honours, in the meantime

these provisions of 25 Edward I c 29 had not been

forgotten. They had been treated as having

significance at various times over the centuries

and, perhaps, if I could take Your Honours to one
declaration of that in KLOPFER V NORTH CAROLINA,

(1967) 386 US 213. I am not sure, Your Honours,

whether Your Honours have that report or whether

that was one of the ones that was indicated to us

required copying.

MASON CJ:  Yes, we do not have it, Mr Hamilton.

MR HAMILTON: Well, I do have copies for Your Honours. May

we hand up copies of that case in the United States

Reports, Your Honours.

Your Honours, the opinion of the court was

delivered by Chief Justice Warren and, at page 223,

His Honour said,near the top:

We hold here that the right to a speedy

trial is as fundamental as any of the rights

secured by the Sixth Amendment. That right has its roots at the very foundation of our

English law heritage. Its first articulation

in modern jurisprudence appears to have been

made in Magna Carta (1215), wherein -

His Honour quotes that second sentence -

but evidence of recognition of the right to

speedy justice in even earlier times is found

in the Assize of Clarendon (1166). By the

late thirteenth century, justices, armed with

commissions of gaol delivery and/or oyer and

terminer were visiting the countryside three

times a year. These justices, Sir Edward Coke

wrote in Part II of his Institutes, "have not

suffered the prisoner to be long detained, but

at their next coming have given the prisoner

full and speedy justice, ... without detaining

him long in prison." To Coke, prolonged

detention without trial would have been
contrary to the law and custom of England; but

·he also believed that the delay in trial, by

itself, would be an improper denial of justice.

In his explication of Chapter 29 of the

Magna Carta, he wrote that the words "We will

sell to no man, we will not deny or defer to

any man either justice or right" had the

following effect:

"And therefore, every subject of this

realme, for injury done to him in bonis, terris,

vel persona, by any other subject, be he

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ecclesiasticall, or temporall, free, or

bond, man, or woman, old, or young, or be he

outlawed, excommunicated, or any other

without exception, may take his remedy

by the course of the law, and have justice

and right for the injury done to him,

freely without sale, fully without any

deniall, and speedily without delay."

His Honour refers to the currency in the colonial

United States of Coke on Lyttleton and continues on page 225:

To Coke, in turn, Magna Carta was one of

the fundamental bases of English liberty.

Thus, it is not surprising that when

George Mason drafted the first of the colonial bills of rights, he set forth

a principle of Magna Carta, using

phraseology similar to that of Coke's

explication -

and then it sets out the words used in that initial

draft. So that the United States' court there indicates

that second sentence of 25 Edward I c 29 as the source

of the relevant sixth amendment right and, also,

Your Honours, suggests, declares that that principle

existed in the meantime in the common law.

(Continued on page 18)

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MR HAMILTON (continuing):  Your Honours, there is also

some support, as Justice McHugh has pointed out,

in the decision of the Privy Council in

BELL V DPP, (1985) 1 AC 937, for the existence of

a right of speedy trial in the common law.

Your Honours, that case was a case decided on appeal

from the Court of Appeal of Jamaica concerning
the Jamaican Constitution, the relevant provision of

which is set out at the commencement of the headnote

on page 937:

Section 20 of the Constitution of

Jamaica provides:
"(l) Whenever any person is charged with
a criminal offence he shall, unless the

charge is withdrawn, be afforded a fair

hearing within a reasonable time by an

independent and impartial court established

by law."

Your Honours, that seems to run together the concepts

or to place, at least, in the same prov is ion the concept of the speedy trial and the fair trail

so far as the Jamaican Constitution is concerned,

whereas the United States Constitution appears to
deal with the matter in two places, as indeed does
the Canadian Charter of Rights that is now in force

in Canada.

Your Honours, the opinion of Their Lordships was

delivered by Lord Templeman and the relevant passages

are at page 950 of the report, just a.hove letter D:

Their Lordships do not in any event accept
the submission that prior to the Constitution

the law of Jamaica, applying the common

law of England, was powerless to provide a

remedy against unreasonable delay, nor do

they accept the alternative submission that

a remedy could only be granted if the accused

proved some specific prejudice -

and when one turns to this case, Your Honours, the

presence or absence of specific prejudice is of

particular importance -

such as the supervening death of a witness.

Their Lordships consider that, in a proper case without positive proof of prejudice, the courts of Jamaica would and could have

insisted on setting a date for trail and

then, if necessary, dismissing the charges
for want of prosecution. Again, in a proper
case, the court could treat the renewal of

charges after the lapse of a reasonable time

as an abuse of the process of the court.

C2Tl4/l/HS	18	11/4/89
Jago(2)

Then His Lordhsip quotes form the well-known speech of Lord Devlin in CONNELLY V DIRECTOR OF PUBLIC

PROSECUTIONS, that however dealing with the matter

upon an abuse of process or fairness basis rather

than a de 1 a y bas is , but at about letter	H His Lords h i p
continues:

But similar reasoning applies to the

power of the court to prevent an oppressive

trial after delay. Their Lordships agree

with the respondents that the three elements

of section 20, namely a fair hearing within

a reasonable time by an independent and

impartial court established by law, form part

of one embracing form of protection afforded to the individual. The longer the delay in

any particular case the less likely it is

that the accused can still be afforded a fair

trial. But the court may nevertheless be

satisfied that the rights of the accused

provided by section 20(1) have been infringed

although he is unable to point to any

specific prejudice.

Now that, at letter H onwards, Your Honour, appears

to be His Lordship's view of how the right is to be

regarded as established by the constitutional

provision in Jamaica, but the passage on page 950

certainly points to Their Lordships' view that there

was a right to have unreasonable delay provided

against in the common law of England as imported into

Jamaica and that relief could be granted by courts

along the general lines of the relief sought in

this case.

(Continued on page 20)

C2Tl4/2/HS	19	11/4/89
Jago(2)

BRENNAN J: Is that right, because the two ways in which

the common law relief was said to be available

was, first, by setting a date for trial and then,

on that date for trial, dismissing for want of

prosecution or treating a renewal of charges

after a lapse of a reasonable time as an abuse

of process? Which of those ways comes in here?

MR HAMILTON:	Your Honour, what we say - and it does not accord entirely with that - there is controversy
in the cases about what the available remedies
are and how the matter should be handled and
there is a variety of opinion as to that, for instance, as well as in other places in the
decisions of the Supreme Court of Canada.
We say, and there is some opinion, that what
should now be regarded as the only remedy is
a stay and a stay rather than a dismissal of
proceedings.  The principal submission that we
would put to Your Honours however is that the
courts have the power to redress the situation in whatever way is appropriate, that their only
power is not necessarily one to dismiss or
permanently stay proceedings but that in an appropriate case if a defendant is anxious to
get on for trial and time is passing he certainly
may bring an application for expedition and for
a setting of the trial date which would be given by the court within that.
If, however, Your Honours, sufficient time has passed for the delay to be regarded as
irremediable, for the situation to have come
that in the court's view it would be oppressive
now to hold a trial, then the court will not go through the process, of course, of setting a trial date but will permanently stay the proceedings.
GAUDRON J:	What do you mean by oppressive in that context?

MR HAMILTON:  Your Honour, these good round words are used

in good round ways in the cases and in the end

Mr Justice McHugh says, and no doubt rightly -

perhaps it is trite but it is the situation,

that_ in the end it is a matter of judgment whether

the situation has become unreasonable or oppressive

and there are other judgments in other cases

that deal with that. What we do say, in particular,

that is relevant to this case, in answer to it is not a prerequisite for the exercise of

the jurisdiction for there to be found some

specific or particular prejudice peculiar to

this accused person.

C2Tl 5/1 /ND	20	11/4/89
Jago(2)

MASON CJ:  How do you demonstrate oppression without

inquiring into matters of that kind?

MR HAMILTON:	Your Honour, because it is said that there are rights of the accused which are infringed
by the continuance of the situation without particular prejudice peculiar to him such as the loss of a witness and various cases point to various elements there: the threat of trial over the accused's head, the anxiety naturally
produced by that, the obloquy that, in reality,
despite the existence in law - in law there is
the presumption of innocence but people particularly in small communities and even in
larger communities come under some obloquy because
they are the subject of criminal proceedings.
Life is affected in many ways: there is a
limitation, for instance, in this case, as I
have put to Your Honours, whilst the appellant
was not incarcerated, of limitations upon his
liberty; it would be difficult for him, quite
simply, to go and get a new job if he needed one - for a person in that situation, if they have, hanging over them, the fact that they are
about to be imprisoned or that there is a risk
of them being brought to trial and imprisoned.

(Continued on page 22)

C2Tl5/2/ND	21	11/4/89
Jago(2)

MR HAMILTON (continuing): There are all sorts of limitations

upon the ways in which the person, the subject of

the trial process, can conduct his life, as well as
the necessary anxiety in most cases, one would imagine,
of having the trial procedure hanging over the head.

Now, those, Yours Honours, who espouse the cause of

speedy tri~l as a separate right say that if
sufficient time passes, then those disadvantages,

whilst inherent in every case where a person is

facing a trial which may result in imprisonment,

become so serious that their very existence and

their continuation for a period which is unduly long,

leads to oppression. I suppose, Your Honours,

oppression perhaps really is not a state of fact

but a conclusion of law. It is perhaps little more

than a statement that the delay has been so long

and the person has been under these implicit
disadvantages and difficulties that a person is

charged is under for a time that it has become

inordinate. That is another word that is used but,

of course, it is no more objective or concrete in

its content than"oppressive."

DEANE J:  Of course, one of the problems is that most people,

even lawyers, would think that justice delayed was
advantageous to the accused in that Crown witnesses

might disappear; the proceedings are less likely

to go ahead unless the Crown thinks it is a strong

case and the sentence is likely to be lighter because

of the delay in bringing the matter to justice.

In that context, what is the right of waiver of

this right to a speedy trial?

MR HAMILTON:	Right of waiver by the accused?
DEANE J:	By the accused.

MR HAMILTON: Well,.Your Honour, I think all those who have

dealt with the matter have perhaps put it in

different ways but have said that this is a common

law right which may be waived. For instance,

Your Honours, we would be unable,to take the example,

to rely upon delay that occurred after 23 February 1987

when the application for a permanent stay, that is
now being considered by Your Honours, was first

made by this appellant. Your Honours, the only

possible exception to that is, in so far as it can
be taken into account, is trial was - as I pointed

out to Your Honours - not to occur for some time

after that. But the latest time that could in any way be taken into account would be the date later

in 1987 when his trial would have occurred.

Now, certainly after that point, it is the

fact that he brought that application before

Judge Thorley and has maintained proceedings for

its review, in a loose sense of the word, since

that time that causes the delay after that. In so

far as he has chosen to do that, he waives his right

C2T16/l/VH	22	11/4/89
Jago(2)

during that period and it is put in various places

that it is a fundamental right of the common law

which cannot be given away absolutely but can

be waived and is waived in circumstances where the

action or acquiescence of the accused person is

taken as producing the delay.

Your Honours, differences are made between cases, for instance, where the matter has kept coming back

before the court and adjournments have been asked for and certainly, if they have been asked for by

the accused, then in relation to the delay caused

by that he has waived his right. There are other

cases; I think it does not happen so much in the
superior courts, Your Honours, but in local courts or
courts of petty sessions in the land where matters
are not stood over generally and put back in the

list but are fixed from day to day, there are cases

Your Honours will find among the cases where there

have been 12 or 13 adjournments and on each occasion

the defendant in those proceedings has turned up

and specifically consented and, in some of the cases

he has been said to have waived his rights in those

circumstances. So there may be waiver by the accused.

(Continued on page 24)

C2Tl6/2/VH	23	11/4/89
Jago(2)

MR HAMILTON (continuing): Your Honours, the general run

of the cases appears to be that if, as in this

case, the accused has stood by and merely done
nothing while the Crown was doing nothing, then
he is not to be taken as waiving his right.

Your Honour, I suppose, he could, in accordance with his speedy trial right, have applied for an

expedited hearing of his case. That he did not do.

That is the only thing during that central period

that could be alleged against him and, Your Honours,

as we say, in our submission, that ought not be taken

as acquiescence or waiver but positive actions of the
accused universally are taken as being able to have

the effect and having the effect of waiving the right

so that he cannot rely on the periods.

Your Honours, in REG V RAHEY, (1987) 1 RCS 588

at 634 to 636, Mr Justice La Forest in the Supreme

Court of Canada took the right of speedy trial - by

this time, of course, incorporated in the Canadian

Charter of Rights as stemming back, however, to the words

of Magna Carta and as having existed in the meantime

and His Lordship discusses that matter through pages

634 to 636. His Lordship specifically regards the

right as having stenuned from Magna Carta and as having

continued to exist in the conunon law of England and
then the conunon law of Canada despite the inadequacy

of machinery during parts of the time for the

enforcement of it, although some machinery, in

His Lordship's view, was provided once the HABEAS CORPUS

ACT of 1679 was enacted and that Act, of course, too,

as Your Honours.will see,is preserved in New South

Wales though that may not be so relevant as other

procedural mechanisms have really been available

since the modern system of bail was instituted to

deal with that specific problem that is dealt with

there.

BRENNAN J: But, here again, we come to the problem uf the

correspondence of the right and the remedy.

MR HAMILTON:  Yes, Your Honour.

BRENNAN J: And, Mr Justice La Forest says that sometimes

it has been suggested that there is not even a

right in Alberta evidently.

MR HAMILTON: His Lordship does say that, I think, at the top

of page 636 but it is set in a context where, I think,

it is plain that His Lordship does not accept that

proposition, Your Honour.

BRENNAN J: Yes. He says that there is a right but he says, "The

remedies for its breach are often unsatisfactory.	So
much so that the right has in practice has been left largely unprotected."

C2Tl7/l/SH	24	11/4/89
Jago(2)

MR HAMILTON:  Yes.

BRENNAN J: That is- really the core of this problem,is it

not? In other words, the words are there, if one

wishes to give them a particular interpretation, but

what does it lead to? What are the powers of the

courts and how does one deal with it,	other than
in the manner indicated in BELL's case?

MR HAMILTON:  Yes. Well, Your Honours, we say that those

words having been regarded as being the source of

a right to speedy trial, as indicated by

Lord Chief Justice Coke over centuries, have become

enshrined in great constitutional charters as the

United States' Constitution and the Charter of Rights

in Canada, it being contemplated by those who placed

them there that there was a right in the common law

and that that right did derive from Magna Carta.

(Continued on page 26)

C2Tl7/2/SH
Jago(2)	11/4/89
MR HAMILTON (continuing):	It is in that context, Your Honours,

that the New South Wales Parliament in 1969 when dealing

with existing imperial enactments specifically, we

say, re-enacts that statutes so that those words
are to be taken as having effect from then or at least

indicates their contemporary relevance. That

process of enactment, that legislative declaration,

if it be not actually an enactment, takes place of

course in New South Wales at a time when a system

has developed where courts have taken upon themselves

the powers to deal with matters of this nature, if

necessary by the granting of a permanent stay of

proceedings because certainly by that time the

doctrine that superior courts could ensure a fair
trial by staying proceedings if necessary was well

established in Australian law, in our submission.

So to Your Honour Mr Justice Brennan we say that

there is a legislative re-enactment or a legislative

declaration that takes place at a point of time when apposite procedure is available and well established and at that point of time there is no reason why that

p~ocedure ought not be used in support of that right.

BRENNAN J:  Is there anything which shows the connection between

this provision of Magna Carta and the function of

the courts oyer and terminer and general gaol delivery?

MR HAMILTON:	I am sorry, Your Honour?
BRENNAN J:	Is there anything which shows the connection between

this provision of Magna Carta and the jurisdiction
as it was exercised at the courts oyer and terminer

and general gaol delivery?

MR HAMILTON:  Your Honour, I cannot at the moment answer

Your Honour if Your Honour is asking me for contemporary indication, that those who passed - - -

BRENNAN J:  No, if you cannot answer - - -

MR HAMILTON:  - - - were engaged in the passing of that

statute at the time looked back to Magna Carta.	I
am sorry, I cannot answer that question at the
moment, Your Honour.	Your Honours, commentators

who have looked at it afterwards have certainly

retrospectively traced a pattern whereby they have

seen ·that as part of the spelling out of the right,

but I cannot take Your Honour to anyone who dealt

with that matter contemporaneously at the moment.

Your Honours, I just draw Your Honours' attention

specifically to the fact that, of course, the words,

the declaration that the statute should be in force,

particularly when coupled with the declaration

that it should be regarded as having come into force

on the passing of the Australian Courts Act and

continued in force since that time, is a rather

curious form of enactment and, Your Honours, we have

C2Tl8/l/MB	26	11/4/89
Jago(2)

not discovered anything that casts any very great

light upon the way that the courts should approach

the interpretation, if there be any special principle,

of an enactment cast in those terms. Of course,

as Your Honours are well aware, there has been some

controversy going on over recent years as to the

degree to which re-enactment in the light of existing

decisions on the earlier and re-enacted provision

should be taken as being picked up by the fresh

enactment and confirmed by parliamentary authority

by the re-enactment.

Yours Honours, we have given Your Honours a

reference in the outline of submissions to two cases

in which some things are said about that problem,

that may, by analogy, cast some light on it, one

being FARRELL V ALEXANDER, (1977) AC 59 and the

other REG V WEST YORKSHIRE CORONER, (1983) QB 335

where it is discussed in the judgment of

Lord Justice Lane.

(Continued on page 28)

C2Tl8/2/MB	27	11/4/89
Jago(2)

MR HAMILTON (continuing):  Your Honours certainly, and not

surprisingly, what is said there is that if the

re-enactment has a clear import, then effect should
be given to its words as they stand and they ought
not be limited by reference back to legislative

history and just to go to the factsof it as an

illustration, Your Honours, REG V WEST YORKSHIRE CORONER
was the case that concerned the question of the holding of

an inquest in England of a young English woman who

fell to her death from a balcony in Saudi Arabia and
her father had her body brought home from Saudi Arabia
and then demanded an inquest of the West Yorkshire
coroner in whose district her dead body was lying.

Until the matter came before the Court of Appeal

that had been refused and the refusal was through

a mechanism that the words of section 3(1) of

the relevant CORONERS ACT were clear, that only

two preconditions had to be fulfilled, namely that

the dead body was lying in the coroner's district

and that there was suspicion that she had come to a

violent death, both of which were fulfilled here,

but there was an attempt, by reference to cases on

earlier CORONERS ACTS and cases decided on the

earlier Acts, an attempt to read in a limitation

that an inquest could not be held if it were plain

on the evidence that the death had not occurred

in England, as was avowedly so in this case.

That approach was rejected by the Court of

Appeal in that case who said that the words of this statute are clear, that there are two conditions

to be f u 1 f i 11 e d , they are f u 1 f i 11 e d i.n th i s ca s e

and the inquest must be held. Your Honours,

again we say in relation to that that there is a
re-enactment of those words of the Statute of Edward
in 1969. Your Honours, I suppose in a sense it is

one of those delightfully simple statements of

expression or policy in an Act that wind up giving

so much more trouble than many complex provisions

do, but we say to Your Honours that whilst the

application may be something that will provide

difficulty in the spelling out of policy by the

courts, there is no difficulty on the face of the

words that there shall not be a denial or delay

of justice.

GAUDRON J:  That puts it in the passive voice, does not it,

whereas the words are quite different, "we shall

not delay".

MR HAMILTON:  Yes, Your Honour and, Your Honours, the way

that we take that, as I said to Your Honours earlier,

the royal plural must be taken in those early

statutes as a declaration by the monarch and in

1969 they must be taken as a declaration by the

government, by the State, that it will not delay

justice. Now, Your Honours, what we say in this

C2Tl9/l/HS	28	11/4/89
Jago(2)

case quite directly is that the delay in justice

in this case is directly at the seat of the

government. It was by a tot a 1 and vi rt ua 11 y unexplained

inaction in the relevant office of government that

was dealing or should have been dealing with the matter

which was either unexplained or, in so far as it was

explained, was explained on the basis that really

they had more important things to do, and that is

a view, of course, which no doubt has some sympathy

and some force, but what has been said in the

cases on this matter where they have arisen is

that whilst perhaps lack of resources must be

taken into account, this provision in the end is

for the protection of the individual citizen upon

whom the weight of the law is falling and that if

the delay becomes inordinate or oppressive, and I

go back to the words that have been used before,

then the courts will declare that the action shall

not continue.

(Continued on page 30)

C2T19/2/HS	29	11/4/89
Jago(2)

MR HAMILTON· (continuing):  We rely, of course, Your Honours,

on the reasons of Mr Justice McHugh in this case

and upon His Honour's reasons in ABOUD to which

I have referred Your Honours. That, I think,

is what we wish to put at this stage on the

existence of the separate right. The second

thing that we would wish to say to Your Honours

is that, of course, if Your Honours reject those

submissions,that is not the end of this case

because we say that there is also error in the

Court of Appeal in dealing with the matter,

assuming the correct basis to approach it on

that there is only one right to stay to prevent

abuse of process.

The error there we say,Your Honours,

is that what has, in effect, been said by the

majority of the Court of Appeal, it has certainly

been taken by other courts that they have said

this, is that in no circumstances can delay be

sufficient and they say that prejudice must be

shown which is not what has come to be called

in the cases presumptive prejudice, that is, the prejudice which flows to any person from having their trial delayed but must be some

prejudice peculiar to the particular applicant

for relief such as that a witness in his case

has died or that there is some particular

difficulty or disadvantage imposed on him that

is not imposed on others by this delay.

BRENNAN J: Mr Hamilton, do you propose to outline the basis

on which this jurisdiction exists?

MR HAMILTON:  Yes, Your Honours. Your Honours, we say

that that is the jurisdiction spoken of by this

Court in BARTON V REG, 147 CLR. That case, of

course, Your Honours, was different in its facts

in that it dealt with the subject-matter as

Your Honours will well recall of committal

proceedings and the consequences of their not
being held.

in that case in a moment, Your Honours, but we I will come back to some passages

say that that is, in essence, the power

inherent in every court to prevent abuse of its

process by creating a situation which is

unjust, unfair or oppressive and in the case,

Your Honours, of superior courts in this country, to exercise also a jurisdiction over inferior

courts to ensure that there is not oppression

by reason of the use of their process.

We say, Your Honours, that that is a very

wide ground and, in that case, oppression may
arise in many ways and BARTON's case, of course,

provides the example of committal proceedings

where it says, in general, that it is in most

C2T2O/1 /ND	30	11/4/89
Jago(2)

cases oppressive for a criminal trial to be

conducted without antecedent committal proceedings

despite the undoubted continuing power in the State to present ex officio indictments.

(Continued on page 32)

C2T20/2/ND	3 1	11/4/89
Jago(2)

MR HAMILTON (continuing):  Your Honours, we say that that

right also certainly exists where, by reason of

delay, a trial has become unfair by loss of

witnesses or some other particular prejudice, as

it has been called, that has been suffered by

the accused whilst awaiting his trial. Again,

Your Honours, there is a similar doctrine of

waiver that is universally applied in cases of

that sortwh:ichwe do not dispute for a moment, that

if the delay is during which the prejudice has arisen,

lie at the door of the accused, then he cannot

rely upon them.

Your Honours, we say tha4 however - and this is

what is denied by the majority of the Court of Appeal -

delay itself can reach a stage merely by reason

of the continuation of t~e delay so that prosecution

cannot be commenced or proceeded with once that time

has been passed. It certainly is a concomitant of

the denial of the existence of that right, that a

man could be tried after 40 or 50 years for a crime

com:ri.tted beforehand, let us say, 30 years, to perhaps make it

not entirely ridiculous. There certainly well may

be cases where all the witnesses to a criminal case

remain alive 30 years later. What is posited :by this:	that
unless there were evidence that witnesses had
totally lost their memory, if there were merely

the erosion or imperfection of memory by time, such

as is suffered by everyone rather than particular

people having total losses of memory, that the State

could stand by and bring the proceedings 20 or 30 years

later and there would be no redress.

We are not, of course, Your Honours, talking

about a case - I have not used this sort of example

when putting this matter to Your Honours before,

but some crimes, df course, are concealed crimes

where either the discovery of the committal of

the crime or the identity of the offender is masked

and hidden by the offender's own actions and ther2,

Your Honours, just as much as if he seeks adjournments

or makes stay applications, he cannot complain of that lack of time, either under a speedy trial principle	or under and unfair trial principle, we are not
talking about that. But if the principle exists
that delay alone and the presumptive prejudice, as it has been called, inherent and in delay can never be sufficient, then the State can discover the circumstances
and, 20 years later, through a whim or change in
social attitude to the conduct involved or any one of a large number of reasons, the State could prosecute
at that time and if this principle is correct there
would be no redress.

Your Honours, assuming there to be no separate,

speedy trial rule, we say to Your Honours that it

would be an abuse of the process of, say, as in this

instance, the District Court of New South Wales, if

C2T21/l/VH	32	11/4/89
Jago(2)

20 years down the track an indictment was sought

tobe presented for a crime which had been known of

for 20 years but which the Crown now chose, for some

reason, to prosecute. On the analysis of the

situation,by the majority in the Court of Appeal,

there would be no remedy but, in our submission to

Your Honours, that would certainly be an abuse of

process arising from delay alone which the courts

would be able to and ought restrain by appropriate

remedy.

(Continued on page 34)

C2T21/2/VH	33	11/4/89
Jago(2)

MR HAMILTON (continuing): Your Honours, if I may come back to a

matter that has been adverted to before: we would say

that to make it plain, 20 years down the track

one ~ould not and ought not then fix a day for trial

and if the matter did not then come on, dismiss it,

the court would say this is plainly too long, there is

only one thing to do and that is permanently to stay

this. And we say to Your Honours that the principles

laid down in BARTON V REG apply in appropriate

cases of inordinate delay in.the same way
as this Court took that action then where proceedings
were brought without the conclusion of committal

proceedings.

Your Honours, one of the passages that we refer

to i~ :he passage in the joint judgment of

Chie~ Justice Gibbs and of Your Honour, the present

Chief Justice at page 96:

There is ample authority for the proposition

that the courts possess all the necessary powers

to prevent an abuse of process and to ensure a

fair trial. The exercise of this power extends

in an appropriate case to the grant of a stay

of proceedings so as to permit a preliminary

examination to take place.

Then there is a further discussion. Similarly, in the

judgment of Justice Wilson at page 116, towards the foot

of the page, His Honour said:

As I have already made clear, I am prepared

to concede to the courts a jurisdiction to stay
criminal proceedings when such action is,
necessary to meet an abuse of process. But I
agree that it is a power which is reserved for

use in exceptional ca.ses, and particularly is

this so when the abuse of process is alleged
to flow from the exercise by an Attorney-General

of -

an ex officio indictment power.

Your Honours, it may be that - and we would

suggest to Your Honours that it is so in support of our

other.submission - that right flows ultimately from the
first sentence of chapter 29 of Magna Carta; that that
is the due process sentence; that was the separate
chapter 39 of the 1215 charter and that is the basic

declaration in the connnon law system, we would say, that

no citizen shall be disadvantaged without due process of

law but, Your Honours, the proposition,certainly in the
jurisprudence of Australia, that there is a power to
stay for abuse of process is not so novel as our attempt

to establish before Your Honours a substantive right of

speedy trial in the common law and - - -

C2T22/l/SH 34 11/4/89

Jago(2)
BRENNAN J: Is it not? It is not so novel you say?

MR HAMILTON:  It is not so novel, Your Honour.

BRENNAN J: What cases have applied it?

MR HAMILTON:  Is Your Honour referring to "only for delay"?

BRENNAN J: Yes.

MR HAMILTON:  Your Honour, I was talking about not doing it for

delay. I was talking about the right to stay for abuse

of process.

BRENNAN J:  I see. Is there any case where it has been exercised

for the purposes of overcoming delay?

MR HAMILTON:  I do not think so, Your Honour. I do not think,

Your Honour, that we can point to a case where, ·

certainly in Australia, where a case

has been stayed on the ground of delay alone.

BRENNAN J: Amounting to abuse of process.

MR HAMILTON:  As amounting to abuse of process, yes, Your Honour.

BRENNAN J: Well, the novelty seems to be evenly balanced, does

it not?

(Continued on page 36)

C2T22/2/SH	35	11/4/89
Jago(2)

MR HAMILTON:  Well, perhaps in the result, Your Honour, yes.

But, Your Honour,what I was attempting to do was not

to suggest to Your Honour that there was authority

for that proposition in Australia but to say that

certainly whatever its extent the right of courts

to stay because they find that there has been

committed or they apprehend the breach of a right

to a trial which is fair is well established. I

am not attempting to suggest to Your Honours that

there are cases that take it to delay alone.

DEANE J:  Mr Hamilton, did either of the majority judges

in this case say that delay and presumptive prejudice

could never be enough?

MR HAMILTON:  Your Honours, may I take Your Honours to where

they discuss that.

DEANE J:  Well, I have read their judgments but I could

not find - you have been arguing on the basis that
they did say that and I have not been able to find

where they said that in terms.

MR HAMILTON:  Your Honours, I am not avoiding coming to their

judgments but they have certainly been taken in

other courts as saying so and when Your Honours deal

shortly with the matter of GRASSBY, Your Honours

will find at page 32 of the judgment of the Court

of Criminal Appeal, in that case, the statement that

mere delay can never be sufficient.

DEANE J:	No, I said delay and presumptive prejudice because
you see you find in the judgments here that they
acknowledge presumptive prejudice but then, as it
were, discount it to some extent because of the
nature of the charges involved in this particular
case.

MR HAMILTON: Well, Your Honour, why I am pondering is I must

confess that that is not what I had taken Their Honours
to be doing.	I had taken Their Honours to be- not

to be discounting presumptive prejudice but to be

taking into account presumptive prejudice and denying

particular prejudice.

DEANE J:  Or perhaps saying that in the circumstances of this

case delay and presumptive prejudice would not suffice,

which is a very different thing from saying delay

and presumptive prejudice can never suffice.

MR HAMILTON:	Your Honour, it is certainly not put in the express terms that I have put it in either of those
judgments but, Your Honour, we say that it is, in
reality, the effect of what has been said. Could I
take Your Honours first to page 57 line 20 in the judgment of the learned president:

C2T23/l/MB	36	11/4/89
Jago(2)

Having regard to the approach stated by

Mason CJ in WATSON to be applicable in exercising

this jurisdiction, I do not consider that this is

a case in which the Court should provide a

permanent stay. Although the delay is great

and no truly satisfactory explanation is given

for at least four years of it, the result has
not been such a prejudice to the claimant

that the Court should intervene to prevent

an abuse of process or an unfair trial. If,

in the circumstances of the delay which has

occurred, I were convinced that the prejudice

to the claimant was significant, I would not

hestitate to stay the trial. But he has lost

no witnesses. He claims no special prejudice.

And he acknowledges that the case of the

prosectuion is essentially a simple one:

simple to present and therefore, by inference,
simple to test, to criticise and possibly to

answer.

Now, Your Honours, whilst there is no express

declaration that presumptive prejudice so-called,

together with delay or a flowing from the delay

can never be sufficient, His Honour- apart from the

matter of the simplicity of the prosecution case

which I will come to in a moment the only matters

that His Honour assigns as showing that, as showing

that there is no significant prejudice, is that he

has lost no witnesses and that he claims no special

prejudice.

(Continued on page 38)

C2T23/2/MB	37	11/4/89
Jago(2)

MR HAMILTON· (continuing):  The prosecution case being

a simple one we say - I suppose, Your Honour,

it is something in a sense that is a two-edged

sword for both sides in this case but,

Your Honours, we say that it is not necessarily

so that because a case is a simple one it is

easy to rebut. Sometimes, Your Honours, the

simplest cases, turning upon - I am talking
hypothetically, not talking about witnesses in

this case, Your Honour, but sometimes the hardest

case to rebut is one that turns upon one simple

but absolutely central lie and, Your Honours,

we would say that, really, the simpleness, lack
of complexity or lack of seriousness of the case

in the sense that it is not one of the highest

cases in the criminal register is one that really

is not indicative one way or the other.

Even so, Your Honour, saying that the case

is a simple one seems really to be another way

of saying, "He has lost no witnesses; he claims

no special prejudice; there is no special

difficulty that he can point to in answering

this case." It is our submission to Your Honours

that if that language is looked at overall, and

looked at in the context of the whole judgment,

it does amount to a declaration that nothing

short of special prejudice will justify the granting

of an application.

Your Honour Justice Deane put to me a moment

ago - if this was the passage to which

Your Honour was referring - that it appeared

to be a reading down of presumptive prejudice but my direct answer to what Your Honour says

about that is that all the items that are

specifically read down are in fact on this rather

curious terminology that has arisen, are possible

instances of special prejudice, not instances

of presumptive prejudice.

DEANE J:	I understand what you are putting. It seems
to me it is one thing to talk of presumptive
prejudice in the abstract, it is another to talk of presumptive prejudice in the circumstances
of a particular case. If you are talking about delay in presumptive prejudice without regard to the circumstances of the particular case you
are really only talking about delay alone; if
you are talking about delay and presumptive
prejudice in the context of the particular case,
that is the nature of the charge and so on, but I do not think it takes us very far.

MR HAMILTON:	Your Honours, it is, in a sense, hard to see what His Honour is saying.	I have reread
C2T24/l/ND	38	11/4/89
Jago(2)

the words with the very problem in mind that

Your Honour Justice Deane has read to me and I must confess that whenever - and there are a number of passages dealing with the same

subject-matter at different parts in the

judgment -I must say that every time I feel that

I have grasped it that it slips away from me

but, Your Honours, we do point to - whilst it

is not clearly or perhaps entirely satisfactorily
expressed, we do point, Your Honours, to the

apparent dichotomy between, "If I were convinced

that the prejudice of the claimant was significant
that seems to suggest that the prejudice in this

case is non-existent or insignificant or less

than significant.", and that is the prejudice that

he suffers on the one hand. I was just looking,

I cannot quite find it at the moment, the prejudices
that the man has suffered are discussed by the
learned ·president elsewhere in his judgment and
then he seems to put on the other hand, as I

say, Your Honours, the juxtaposition of "But

he has lost no witnesses, no special prejudice,

simple case, so should be easy to conduct even

though it is being run late".

He seems to be putting in the oeher pan when he

is talking about that all things which are matters

of special prejudice in the dichotomy and,

Your Honours, the terms in the cases, they were

used initially, I think, in some of the United

States cases precisely as Your Honour Justice Deane

has suggested, in talking about the matter in

terms of generality in talking of the concept
of the types of prejudice that may flow to a

criminal accused in these circumstances but,

as cases have gone along, they seem to be starting

to develop almost the outlines of K~doctrine.

(Continued on page 40)

C2T24 / 2 /ND·	39	11/4/89
Jago(2)

MR HAMILTON (continuing): Again, Your Honours, talking of

the 0th.er passages that one gets the feeling from, there is the passage on page 50. Again, it is not clear but it does see~ to be making the same

dichotomy at about line 11:

Any suggestion that particular prejudicP.

has been - - -

we can leave, out of account -

Any suggestion that particular prejudice

has been caused to the claimant by reason

of the delay. The claimant relies upon the

presumptive prejudice which arises in every

case of delay (such as anxiety, stress and

the loss of memory of witnesses). But this

is not a case (as were CARVER and GORMAN V

FITZPATRICK) ..... by reason of the delay

between the time when the matter ought

ordinarily to have come for trial and the

time when it will now do so, witnesses have

died or other such difficulties for the fair
prosecution of the claimant have arisen.
Nothing of a similar kind is alleged here.

And again, Your Honours, we cannot put that as being a clear statement. There seems to be a clear

statement - one way or the other - seems to be

lacking. But again there is the same juxtaposition:

on the one hand there are the matters which this man

has suffered or risks when one talks about the

memory of witnesses 11 years down the track, in

general terms those things are undoubtedly there

and the juxtaposition seems to be with other matters

as of death of witnesses:

or other such difficulties

put on the other hand as being the things that would

make a difference.	So that we say, Your Honours,
we cannot point to anything clear in the judgment

but upon a fair reading we say that the dichotomy

is made of things which everyone suffers and which

this man, too, does suffer on the one hand, which

are implicit and special disadvantages of that

sort which are not there.

Your Honours, at page 56 of the book is the passage that I had in mind where His Honour says:

But what of the prejudice to the accused?

There is no doubt that "presumptive prejudice" was caused by the delay. This includes anxiety

and uncertainty, particularly in the case of a man now in his sixties living in the small

community of a country town. The claimant

C2T25/l/VH	40	11/4/89
Jaog(2)

stressed the simplicity of the prosecution

case ..... chief point urged ..... so simple .... .

that it ought to have been brought to .... .

this argument cuts both ways.

And then His Honour goes on at line 21:

No witnesses have died. The documentary

evidence remains for the jury's consideration.

Of course, the documentary evidence, as is plain,

the cormnittal proceedings took about five days so

that, although they were not long by the terms of

complex modern conspiracy trials or anything of

that sort, they are certainly not cases in which

the evidence is only documentary; there was

considerable oral evidence given by quite a large

number of witnesses in the case. One of the witnesses,

I think, has since died but that is beyond a period.

Mr Lawrence Adler gave evidence for the prosecution

at the cormnittal proceedings but that had not
occurred, Your Honour, at the time of Judge Thorley's

determination.

Your Honours, going to the reasons for judgment

of Justice Samuels, I think the relevant discussion

by His Honour is at page 84, cormnencing at a.bout

line 6. His Honour says:

It is arguable that the sole criteria for breach of the right to speedy trial ought to

be the length of the delay, the reasons for it and

the assessment of any contribution to the

delay made by the defendant, that is, the first
three of Justice Powell's four factors enunciated

in BARKER. Indeed, this is the approach which

our legal history would indicate if we are

truly disposed to yield to its influence. The

HABEAS CORPUS ACT, after all, made discharge the

consequence of the Crown's failure to try the

accused within the period specified, without
proof of prejudice or further inquiry.	However,

we are, rightly I think, too concerned at the

prospect of the guilty escaping or of proceedings

being stayed where no prejudice, or only

minimal prejudice, has been caused by the delay

to adopt so spare a solution. Hence, I surmise,

Justice Powell added the fourth of his factors

which directs assessment of the prejudice which

the defendant has suffered.

(Continued on page 42)

C2T25/2/VH	41	11/4/89
Jago(2)

MR HAMILTON (continuing):

This assessment is the must "unruly" element in the whole balancing test, to

adopt Uviller's word, op cit at 1392.

Prejudice, as Powell J asserted in

BARKER at 532, must be considered in the

light of the three interests which speedy

trial was designed to protect;

and the third of them is "to limit the

possibility that the defence will be

impaired." Proof of prejudice and

whether it must be actual, or may be

prospective or is to be deemed, present

separate difficulties; but at this stage

it is obvious that the inquiry is identical

with that involved in determining whether

the delay has been oppressive in the sense

that it has prejudiced the fairness of

the trial.

Your Honours, I suppose what we say is this, that

it is implicit in the words at line 18 that in

this case there has been '~o prejudice or only

minimal prejudice" means either that His Honour

does not regard the matters that are implicit or

inherent as prejudice at all and that, Your Honours,

we submit,would be a mistake of law if that is the

view that His Honour takes, or alternatively if

His Honour does accept that that is prejudice, then

the words "no prejudice or only minimal prejudice"

must apply to special prejudice proved to apply to

the particular accused who is being dealt with.

So on the one hand, Your Honours, we say that

the error there either is that His Honour is saying

there is no special prejudice here and therefore

there cannot be an order; alternatively if

His Honour is looking right across the spectrum

then His Honour is saying that the disadvantage
that the man suffers by this delay is not

prejudice within the view of the law and that in
itself, we say, would be an error.	Your Honours,

obviously whether Their Honours have erred or not

must in the end be determined by a reading .

and determination by Your Honours of what it is

indeed in truth that their judgments turn upon, but

Your Honours, we do point to the fact that in

GRASSBY at page 32 the Court of Criminal Appeal,

no doubt after a careful reading, took this case,

JAGO, as authority for the proposition that delay alone - and, Your Honours, we must take that as

including whatever prejudice, if it be characterized

as prejudice, is implicit in delay - could never be

sufficient. Your Honours, that also overall is

the reading that we have placed on those judgments

when read and re-read.

C2T26/l/HS	42	11/4/89
Jago(2)

Your Honours, His Honour Mr Justice Samuels

referred to BARKER V WINGO there. May we draw

to Your Honours' attention, as it sometimes seems

to be forgotten in some of the cases that of course

Justice Powell was careful not to lay down what are

sometimes so quickly picked up as four principles
or the four criteria that you must apply as some
sort of magic formula or exhaustive set of

categories of the matters that ought to be taken

into account.

(Continued on page 44)

C2T26/2/HS	43	11/4/89
Jago(2)

MR HAMILTON (continuing):  His Honour, at the cormnencement

of that at page 530 of the report in the United States

Reports says:

A balancing test necessarily compels courts to

approach speedy trial cases on an ad hoc basis.

We can do little more than identify some of the

factors which courts should assess in determining

where a particular defendant has been deprived

of his right. Though some might express them

in different ways, we identify four such factors -

and His Honour then sets them out. There is then the
passage about the delay being a "triggering mechanism".

Then at page 532 His Honour discusses the prejudice

to the defendant and at page 533, about the middle

of the page, His Honour again emphasises:

We regard none of the four factors identified

above as either a necessary or sufficient

condition to the finding of a deprivation of the right of speedy trial. Rather they are

related factors and must be considered together

with such other circumstances as may be relevant.

In sum, these factors have no talismanic

qualities; courts must still engage in a difficult

and sensitive balancing process.

Your Honours - I shall not read them to Your Honours

at this stage, but we have also set out in the outline

of argument reference to passages in the UNITED STATES V

MacDONALD, 456 US 1 and RAREY, the Canadian case,

where judges have specifically expressed the view

that delay alone; and with the prejudice inherent

in it, may be sufficient without proof of special

prejudice. That, of course, Your Honours, is in
both cases in connection with a speedy trial right,

but ;it is our submission to Your Honours that if there

is taken only to be one right none the less if the

delay and the prejudice inherent in it becomes

sufficient so that the situation becomes oppressive

then there is no difficulty in giving effect to that

within the power that our courts undoubtedly have

to prevent unfair trials, oppression, ab~se of process.

Your Honours, whilst I am not going to read from

it we ·understood that Your Honours did not have a copy

of US V MacDONALD.	May we hand up copies for
Your Honours' use.

MASON CJ:	Thank you.
MR HAMILTON:	Your Honours, there is one thing I draw

Your Honours' attention to that I perhaps should have

previously, in relation to the question of what

the conclusion of the learned president of the

Court of Appeal was as to whether delay alone ever

could be sufficient. One of the matters in context

C2T27/l/MB	44	11/4/89
Jago(2)

that we would draw Your Honours' attention to, or

part of the context, is that His Honour's language

of course is very strong concerning the nature of

this delay. Without giving Your Honours all the

reference His Honour speaks, for instance - at page 50

line 9 - of"hibernatiorl'on the part of the authorities.

At page 55 line 20 he describes the delay as the

result of "shocking inattention" and at page 55 line 7 -

and I think it is at that point it is after some

analysis, or after it considering times of trial as set out in ABOUD's case, His Honour describes

this delay as "quite exceptional".

Your Honours, those are also part of the context which we say propels - at least propels if perhaps not

compels - one towards the view that His Honour is saying

that delay itself could never be sufficient.

(Continued on page 46)

C2T27/2/MB	45	11/4/89
Jago(2)

MASON CJ: Yes.

MR HAMILTON:  Your Honours, as we have already put, in the

end it is a matter of judgment or opinion as to

whether the delay in this case is oppressive or

inordinate. The times, Your Honours, are set out,

as I have already drawn to Your Honours' attention - - -

MASON CJ: Well, there is no need to repeat that.

MR HAMILTON:  No. Well, I was going to say something about it

specifically in this connection, Your Honour.

MASON CJ: Yes?

MR HAMILTON: That whilst, Your Honours, only the six-year

period can be taken into account upon a fair trial
basis, we would submit to Your Honours that certainly

the entire period from the discovery of the irregularities

can be and ought to be taken into account on a fair trial

basis and that whilst, Your Honours, we perhaps could not

point to individual inactions or periods that were

totally unreasonable there, under this head the actual·

time that occurred between discovery and when the

trial could have come on late in 1987 is to be

taken into account.

Your Honours, the facts of the matter are adequately set out in the judgments and we do not

seek to weary Your Honours by going through them in

detail unless there is any aspect of them Your Honours

wish to hear from us on but, Your Honours, that does

not mean that we do not earnestly put to Your Honours

that, on either basis, this length.of time, together

with the lack of or totally inadequate explanation of

delay for that vital central period, is such that

would render a trial of this man oppressive or unfair.

Your Honours, it is obvious from our submissions that

we submit that the decision of the Court of Appeal is

vitiated and we say that Your Honours can, in those

circumstances, exercise the discretion afresh and

ought exercise the discretion by granting a

permanent stay.

Your Honours, that brings me to one incidental

matters, if Your Honours come to that. It may be that

we ought seek, so far as relief is concerned, an

amendment of the notice of appeal where the only

substantive relief sought is review of the district

court decision by mandamus.

As I have just outlined to Your Honours, we

would now suggest that the direct intervention of

this Court is appropriate and justified in these

circumstances and we would seek to insert a prayer

C2T28/l/SH.	46	11/4/89
Jago(2)

under"Orders 3ought"that further proceedings upon

the indictment presented against the appellant in

the District Court of New South Wales on

13 February 1987 be permanently stayed. I did

discuss this with the Solicitor-General last week

and I understand that there is no objection to

such an amendment being made and I think - I will

let him speak for himself but he is probably rather

of the view that that would be the appropriate course

if Your Honours do find that relief is called for,

rather than exercising review jurisdiction or

remitting the matter to the district court.

Subject to anything further that Your Honours would wish to put to us, those are our submissions

in-chief.

MASON CJ: Thank you, Mr Hamilton. Yes, Mr Solicitor.

MR MASON:	I hand up the outline of our submissions.
MASON CJ:	Thank you.
MR MASON:	Copies have been given to my learned friend.
MASON CJ: Yes.
MR MASON:	Your Honours, our submission in very general terms

is that the spirit of the connnon law has, as it were,

moved upon the void of the waters and has given some

specific content to a right to a prompt trial and that

what this case is really about is the content and
application of the specific and, in our submission,

well-developed and appropriate rules of the common

law. Specifically, the question is whether a remedy

in the nature of a stay will, as the appellant argues,

necessarily be granted if there has been an unreasonable

delay or whether the protection of the relevant interests

of society and the accused person necessarily calls for

a stay or some other appropriate remedy and whether it

has been correctly refused in this case.

Your Honours, in our submission, it is appropriate

to connnence with an acknowledgement that any just

system of criminal procedure should be designed to

protect various interests and, to that extent, we

accept as a convenient sunnnary of what those interests

are, the judgment of Mr Justice McHugh in ABOl~'s

case and we have endeavoured to set them out.

C2T28/2/SH	47	11/4/89
Jago(2)

MR MASON (continuing):  We would submit that there is a

duality of interests and this necessarily creates

the need for an appropriate balancing or adjustment

and difficulty in hard cases. The only one of

the passages referred to in paragraph 1 which

I wish to read is a short passage from BARTON's

case. At page 102 of the report in 147 CLR,

in the judgment of Mr Justice Gibbs and

Mr Justice Mason, near the top of the page, where

His Honours said:

At this stage it is sufficient to say that

the Supreme Court has power to stay proceedings

on the information until a preliminary

examination takes place. Whether such a

stay should be granted depends upon a weighing

up of the relevant interests which are at

stake - on the one hand, the accuseds'

interest in obtaining a fair trial, and

on the other hand, the Crown's interest

in bringing the accused to trial on serious

charges which will require to be proved

by the testimony of overseas witnesses.

At the top of page 2, Your Honours, we

respectfully remind the Court of a passage in

the judgment of Mr Justice Samuels in BARRON's

case, which I do not wish to read, where that one has to be careful that one is comparing

like with like and that by labelling the interests

in one way or the other not to prejudge the outcome.

Your Honours, in our submission, as we seek

to develop in paragraph 2, the way these relevant

interests have been given effect to in the common

law, in a way that is of present relevance,

is through the power of the Court, in effect,

to grant a permanent stay. It is accepted,

although at an earlier stage the Crown sought

to argue to the contrary, but it is accepted

that the courts, in Australia, have the power

in an appropriate case to grant a permanent stay,
in effect, by declining to hear proceedings which

have been instituted by the Crown.

BRENNAN J: Where does that come from?

MR MASON:  In one sense from the breast of the judges.

It is a power which they have asserted has been

within the rights to control the fairness of

a trial.

BRENNAN J: In the context of delay, has it come from the

breast of any judges outside New South Wales?

/ ND· 48 11/4/89

Jago(2)

MR MASON: If you are asking me about the particular right

that Mr Justice McHugh adverted to or the more

general one that - - -

BRENNAN J:	A general jurisdiction to stay proceedings for delay.
MR MASON:	The general jurisdiction to stay on what I might

call the balancing process which comes from the
four factors in BARKER V WINGO has been accepted

by the Full Court of Victoria in CLARKSON's case,

(1987) VR 964 by the Full Court of the Supreme

Court of Queensland in COONEY, (1987) 31 A Crim R 256;

by the Full Court of the Federal Court - certainly

by implication - in EMANUELE's case. If I could

take Your Honours to the top of page 3 of our

written submissions, about eight lines down,

we say there that the decision is unreported.

Could I ask Your Honours to note that it is reported

in 30 A Crim R 164. And while there is little

citation of authority in the Full Court decision,

if one goes to the court below which was affirmed

all of these principles are discussed there.

This Court has refused special leave twice

where attempts were made to argue that the

jurisdiction did not exist at all: first, in

HERRON's case and, secondly, in WATSON's case

and the statement that the Court made in

refusing special leave in W.ATSON·s case noted

in (1987) 20 Legal Reporter, Special Leave 1.

(Continued on page 50)

C2T29/2/ND 49 11/4/89

Jago(2) ·

MR MASON (continuing):  I am not, of course, suggesting that

this is t~ be treated as being equivalent to a

definitive judgment, but it has been accepted

certainly by all other courts as being such.

Your Honour the Chief Justice said this:

In our view the Court has a discretionary

supervisory power to stay criminal

proceedings unconditionally. Although

it is a power which is exercisable

sparingly and with the utmost caution such

that its exercise is not encouraged, we are

not persuaded that its exercise in the

present case involved any question of

principle.	The application is therefore
refused.

It has been accepted in England, the leading case

there being REG V DERBY CROWN COURT, (1984)

80 Cr App R 164. It is, as we perceive it,

Your Honours, but a specific application of the

general power of the Court to stay proceedings

that are discussed at length in CONNELLY's case

by the House of Lords in (196~AC where in the
speech of Lord Devlin in particular His Lordship

points out that the power, the doctrines of

autrefois really arose out of a discretionary power

inherent in the court to stay proceedings which

would be an abuse of process.

This Court in BARTON's case reserved the issue,

and the relevant pages are referred to in

paragraph 2(a) of our submissions. It was stated

firmly in BARTON's case that the power of the Crown

to present an indictment was unreviewable, but

equally firmly that the indictment having been

presented the Court had a power to stay. Now, on

the facts of BARTON's case the stay was a

conditional one, conditional upon the holding of

a committal, and to that extent BARTON is not

authority for the broader proposition, although

the reasoning has been accepted as being a spring-

board for the broader proposition that the power

is one to stay permanently and unconditionally.

Your Honours, in paragraph 2(b) we cite, and I do· hot propose to read, the two leading New South

Wales cases, each of which, as I say, special leave

was refused, in which the power was exercised and

discussed at greatest length. Now, it is in the exercise of that power that the need to reconcile

the two sets of public interests which we have
referred to compendiously on page 1 of the

submissions that the courts have endeavoured to

formulate what is the appropriate rule which will

activate the exercise of the power to stay, because

that is the only power which is invoked in the

C2T30/l/HS	so	11/4/89
Jago(2)

present case. In our submission, the way the

reconciliation has been effected is by the

conferral of a discretionary power, the onus being

as I have stated in WATSON's case in the special leave

reasons, but that it should be established that the

prejudice or unfairness is so oppressive as to

amount to an abuse of process before proceedings

are stayed. If I may just read the two short

passages in WATSON and COOKE that are cited -

in WATSON at 8 NSWLR at page 699.

(Continued on page 52)

C2T3O/2/HS	51	11/4/89
Jago(2)

MR MASON (continuing): At page 699, Mr Justice Priestley

cited with approval a passage from the English

Court of Appeal decision, REG V DERBY CROWN COURT:

"In our judgment, bearing in mind

Viscount Dilhorne's warning that this power

to stop a prosecution should only be used

'in most exceptional circumstances', and

my Lord Lane's similar observation in

OXFORD CITY JUSTICES which was specifically

directed to magistrates counts, that the

power of the justices to decline to hear
a summons is 'very strictly confined', the

effect of these cases can be summarized in

this way. The power to stop a prosecution

arises only when it is an abuse of the process

of the court. It may be an abuse of process

if either (a) the prosecution have manipulated

or misused the process of the court so as to
deprive the defedant of a protection provided
by the law or to take unfair advantage of a
technicality, or (b) on the balance of
probability the defendant has been or will be,

prejudiced in the preparation or conduct of

his defence by delay on the part of the

prosecution which is unjustifiable; for
example, not due to the complexity of the
inquiry and the preparation of the prosecution

case, or to the action of the defendant or

his co-accused, or to genuine difficulty in

effecting service.

Next paragraph:

The ultimate objective of this discretionary

power is to ensure that there should be a fair

trial according to law, which involves fairness

both to the defendant and the prosecution,

for, as Lord Diplock said ..... ' ..... the fairness

of a trial ..... is not all one-sided: it requires

that those who are undoubtedly guilty should be

convicted as well as that those about whose

guilt there is any reasonable doubt should be

acquitted. '

(Continued on page 53)

C2T31/l/VH	52	11/4/89
Jago(2)

MR MASON ( continuing) :·

It is, as Lord Diplock also said in that

case, 'no part of a. judge's function to
exercise disciplinary powers over the police
or prosecution as respects the way in which

evidence to be used at the trial is obtained

by them.' Or, we would add, in regard to

the preparation of the case, unless this has
prejudiced the defendant in the way we have

indicated. If the delay is not shown to have

prejudiced the defendant in this way, lengthy

inquiries into the reasons for the delay

should not be necessary."

Your Honours, in COOKE V PURCELL, 14 NSWLR.- and the

passage is at page 78. In the middle of the page

Mr Justice Clarke quotes from HERRON, and that is

the passage we also rely upon:

In HERRON, McHugh JA, in dealing with a

submission that there was "an overriding public

interest in the inquiry" said:

"The public interest in the inquiry proceeding

is not the only public interest to consider.

There is a public interest in a fair hearing

and in ensuring that the proceedings are not
an abuse of process. If the prejudice or
unfairness is so oppressive as to amount
to an abuse of process, the public interest

requires the proceedings be stayed. There

is no public interest in hearing a complaint

and making a finding of professional misconduct

...•.. where the delay of the complainant has

caused the defendant substtantial prejudice

and unfairness amounting to an an abuse of

process.

The requirement that the court carries out

this balancing exercise emphasises the need for the

applicant for a stay to demonstrate that the

delay is, in the particular circumstances of	the case, so great as to constitute the
institution or maintenance of the proceedings
an abuse of process. The point being made by McHugh JA is that once a court is affirmatively
~atisfied that the delay in the prosecution
of a case has been so gross as to cause prejudice
and unfairness to the accused person, and
therefore constitutes the maintenance of the
proceedings an abuse of process, there can
be no public interest in requiring that person to submit to the unfair trial which must result.
The public interest lies in the submission of
persons accused of crim'•\;o a fair trial.

'.s:)j~

C2T32/l/MB	53	11/4/89
Jago(2)

MR MASON (continuing).: Your Honours, so one starts with the

need that there has to be prejudice but of such a

level as to draw the epithet of abuse of process.

One then has the direction that the court exercise

restraint which is reflected in the court's reasons

in WATSON and in MOEVAO, the decision of the Court of

Appeal in New Zealand. Could I just give Your Honours

the particular page references referable to

paragraph 2(d) in which that is referred to - 466,

469 and 470 in the judgment of the president; 477

in that of Mr Justice Woodhouse and 482 in that

of Mr Justice Richardson and there is one paragraph

from Mr Justice Richardson's judgment I would wish

to read and I have copies of it.

MASON CJ: Yes, thank you, Mr Solicitor.

MR MASON: It is at page 482, line 14 to line 40. Your Honours,

in paragraph 2(e) we put the submission that the

concern is to ensure a fair trial and the only

one of the passages referred to there I would wish

to read is that in COONEY, ( 1987) 31 ACr.im R 256 at

page 264. It is on our list of authorities. This

is in the judgment of Mr Justice Andrews speaking

for the Full Court and it is the paragraph in the

middle ot the page, 264:

The authorities establish that the

principal concern -

Now, Your Honours, against that focus which is

the focus that the coIIIIIlon law has more specifically placed upon prejudice and delay, one then asks what way does the common law require delay alone to be

analysed11-

(Continued on page 55)

1-..,};

C2T33/l/SH.	54	11/4/89
Jago(2)

}fR. MASON (continuing): That is, as we see it, at the heart

of this case; whether, if there is merely delay, and

an application is made for a stay, what is the

approach the court should adopt in that situation?

The first proposition we put is that delay, even gross delay, does not establish an abuse of process.

I do not wish to read the passages. One of them is

the passage in the GRASSBY judgment which my learned

friend, Mr Hamilton, made reference to. We submit

that is a self-evident proposition, if only because

of the fact that some delays are clearly justifiable.

We then submit, based on the purpose of a stay, that even where the delay cannot be justified it does

not necessarily constitute an abuse of process
justifying a stay. There has to be other factors

taken into account. It is at this point that, in

our submission, the Court is perhaps offered a choice

of two alternative paths so far as the cormnon law
of Australia is concerned. Briefly, these paths are:
to follow the English or the line that is stated in

that passage from j:he English Court of

Appeal which says that in the absence of bad faith

there must be prejudice or, to follow the line which,
one one reading of BARKER V WINGO, is the approach
there taken by the supreme court ,,which says you must

take into account the question of prejudice in

weighing the various factors, but no one of those

four factors is necessary or essential.

Now, our primary submission is that the Court

should adopt the former. If the latter is the test,
we submit the Court of Appeal below correctly applied

it in any event as it did the former test and it

is to that former fork of the proposition we address

the submission in paragraph 3(c).

(Continued on page 56)

C2T34/l/VH	55	11/4/89
Jago(2)

MR MASON (continuing):  We submit that as a matter of

principle an accused person should only be
entitled to a stay upon demonstration of

prejudice or manipulation, or misuse of the

processes of the court.	We say it flows from
what has been said above.	We do say that it is

the position established to date in the common

law of Australia which have cited BARKER V WINGO,

but apparently on the basis that one looks at

the necessity for presumptive prejudice as a
triggering mechanism for the analysis that the

Court applies when it applies the four factors

that are referred to.

We submit that that is the proposition

established by the English cases and I have

referred Your Honour to the leading case,

which is the DERBY CROWN COURT case. That is

still the law and at the bottom of page 4 we

cite a 1988 judgment of the Court of Appeal

which cites it. We submit that this can be

tested perhaps by asking this proposition:

how does the court handle a guilty plea; a

person who is willing to admit guilt, or has

admitted guilt in a record of interview,the

validity of which is not denied. ·

In a decision of the Supreme Court of

Canada called JEWITT - I will give Your Honours

the citation after lunch - the court there

suggested that even if the accused person is

willing to admit the guilt and does not deny

it there is a public interest in effect of

denying the right to put that person on trial
if there has been substantial delay. Admittedly,

they were looking there at their statutory right

of speedy trial. The English approach to a

similar situation is evidenced.in the DERBY CROWN

COURT case itself where that was the relevant

fact. The Court there said, "How can there

possibly be prejudice if a person does not dispute

that he or she did the crime alleged?"

In our submission, a principle which denies

the essential requirement of prejudice in the

abse:nce of bad faith has great difficulty in

accommodating the attitude it should properly take

to a guilty plea. JEWITT is (1985) 2 SCR 128.

AT 12.48 PM LUNCHEON ADJOURNMENT

C2T35/l/JM	56	11/4/89
Jago(2)
UPON RESUMING AT 2. 16 PM:

MASON CJ:	Yes, Mr Solicitor.
MR MASON:	Your Honours, when I said just before lunch

that the Court, in our submission, has, at this

stage of the development of the law in Australia,

a choice between two different rules, and said

that the first rule would be one that said that

prejudice had to be demonstrated before there

would be a permanent stay in the absence of bad

faith, I am not suggesting that that was the approach

taken by the Court of Appeal but, of course,

if that is the correct approach then the Court

of Appeal was right, in my submission, a fortiori.
Before I leave that, may I just say something about this concept of presumptive prejudice because

it is relevant to that analysis. Mr Justice Kirby

appeared to regard the concept of presumptive

prejudice as picking up not just prejudice that

would interfere with a fairness at the trial

but prejudice that would cause to the accused person some personal disadvantage or anxiety.

At the top of page 56 His Honour said, when looking

at the fourth of the factors in BARKER V WINGO:

But what of the prejudice of the accused?

There is no doubt that "presumptive prejudice"

was caused by the delay. This includes

anxiety and uncertainty.

In my submission, that overstates what is meant by presumptive prejudice. In my submission,

when BARKER V WINGO and the cases which followed

it spoke of presumptive prejudice they were speaking

of a means of proving prejudice but not a different

sort of prejudice than that which was at the

heart of the jurisdiction to stay for abuse of

process that would interfere with a fair trial.

There is reference to presumptive prejudice

as being - there is a statement to the effect

that the only distinction between presumptive

prejudice and prejudice demonstrated without

the aid of presumption is the means by which

the prejudice may be proved in the judgment of

Mr Justice Maxwell in WHITBREAD V COOKE, (1986)

5 ACLC 305 ct 323, that judgment being affirmed

on appeal, and in HERRON's case at page 154E.

C2T36 /1 /ND	57	11/4/89
Jago(2)

MR MASON (continuing):  So our primarl submission is-

that the appropriate form o prejudice that would
trigger off a reference to the four factors in

BARKER V WINGO is real prejudice although that

prejudice can be presumed but, having triggered off

the inquiry if the prejudice is negated entirely

on examination of the particular facts of the case,
then absent bad faith on the part of the Crown,

in our submission, there would be no stay.

Now, the alternative path of the fork,which is

the one which I accept was the approach taken by

the Court of Appeal, would be to regard none of the

four factors in BARKER V WINGO as being by themselves

necessary or determinative. That appears to be the

way the American Supreme Court has required, that
BARKER V WINGO should be so interpreted in the

decision of the Full Court in MOORE V ARIZONA, 414 US 25.

The Court,having read the passage that my learned

friend read about none of the four factors having

a talismanic quality said that, "BARKER V WINGO

expressly rejected the notion that an affirmative

demonstration of prejudice was necessary to prove

a denial of the constitutional right to a speedy

trial."

Your Honours, while the American law therefore

does not appear to require that prejudice must in

the end be demonstrated it does, in our submission,

put some special emphasis upon prejudice as a factor.

Certainly it is a factor that has to be considered

because BARKER V WINGO says that but equally the

cases suggest that it is a factor that is of some

considerable importance in the balancing exercise.

(Continued on page 59)

C2T37/l/MB	58	11/4/89
Jago(2)

MR MASON (continuing):  The latest case which seems to

discuss this, and I give it to the Court as much

because it collects the authorities as for any

other purpose, is the decision of the United States

Court of Appeals for the Second Circuit in

RAYBORN V SCULLY, and I have a copy of that

judgment. It is in particular the paragraph

in the middle of the last page of the copy that I

have given to the Court in which there is a

collection of the recent decisions of the American
cou~ts which, while following law in Arizona and

saying:

that a showing of prejudice is not a

prerequisite to finding a sixth

amendment violation -

show that the -

courts generally have been reluctant

to find a speedy trial violation in

the absence of genuine prejudice.

The Court has, in our submission, a clear choice

between these two arms of the fork because in BARKER

the Court was dealing with a constitutional right

framed in terms of a speedy trial right, whereas

this Court is concerned with enunciating a common

law right which may naturally choose from BARKER V

WINGO as much as is persuasive and reject as much

as is not. Your Honours, on this alternative

approach, which is the approach adopted by the

Court of Appeal, there was, in our submission, no

error. In the passage that was read at page 57

and page 58 of the appeal papers which summarize

the conclusion in the reasoning of the president

with which Mr Justice Samuels agreed His Honour

made plain that he accepted that there was a

significant onus lying upon the party who would

seek a permanent stay, made plain that he accepted

that the delay in this present case was

significant and reprehensible, made plain that 1n

his conclusion the result was not such as to

prejudice the court to that level that would

enable the court to categorize the matter as being

an abuse of process.

(Continued on page 60)

C2T38/l/HS	59	11/4/89
Jago(2)

MR MASON (continuing): In our submission that was a judgment on a discretionary matter which correctly applied the

relevant principles and, for that reason, should

not be disturbed.

Your Honours, the nature of the evidence - - -

TOOHEY J: Just before you leave that page, Mr Solicitor, at

the foot of page 58, the president speaks of orders

that:

might be fashioned to take account of the

nature of that right -

to speedy trial, if one exists, namely or, by way

of illustration, orders for expedition. Are those

sort of orders that are appropriate to be made if

there is no right to a speedy trial as an independent
right but the case could be made out of inordinate

delay, even though there is no suggestion of any

particular prejudice to the person charged?

'MR MASON:  Can there be such a remedy if there is not the

underlying right to give effect to it? Well, in

our submission, that would be a remedy in the nature

of a quia tim~t. It would be designed to prevent

before the intolerable prejudice struck and to prevent

it by ensuring that the hearing did take place within

such a time that there could be no complaint about any

such delay.	That would be how we would accept the
range of remedies.	We certainly do accept that there

may be a different range of remedies that would be

appropriate to give effect to the different interests

that are referred to on page 1 of our submissions,

taken from ABOUD, but the only remedy of concern here

is the remedy of stay.

Your Honours, there is a discussion about the appropriate range of remedies and a criticism of the

American court's view that the only remedy for the

breach of the constitutional right is that of a stay

in an article by Mr Amsterdam, "Speedy Criminal Trial:

Rights and Remedies" and we have had reproduced the

relevant pages of that article and I give that to the

Court.

(Continued on page 61)

C2T39/l/SH	60	11/4/89
Jago(2)

MR MASON (continuing):  Your Honours, if the Court were persuaded

that there was an error of principle in the approach
the court took and were therefore minded to re-exercise

the discretion, but in the light of the BARKER V WINGO

approach, we would submit that the result would be

the same and we would invite attention to the material

at the bottom of 12 and at the top of page 13 of the

appeal book as to the nature of the evidence that is

involved in this present criminal case.

The charge is that the appellant's own handwriting

shows - the second-last question down to about the

sixth question on page 13 - that the evidence is in

the appellant's own handwriting; that he wrote on the

company cheque books and the cash books of the company

money showing that the cheques were being paid to

insurance companies, this being an insurance broking

firm. Yet, also in his own handwriting are the original

cheques themselves showing that the cheques were paid

for gambling debts. Now, in our submission, having

regard to the nature of the evidence, the positive

finding of lack of prejudice that is made in the

judgment below, correctly, in our submission;

the nature of the evidence and we would also add the

appellant's failure to assert the right he now claims

in 1986, the court would, in exercise of any discretion

of its own, refuse a stay.

(Continued on page 62)

C2T40/l/VH	61	11/4/89
Jago(2)

MR MASON (continuing): Your Honours, may I hand the Court

a chronology of what we would submit are the

relevant dates. Your Honours, for the purpose

of the present submission we draw attention to
the date 27 June 1986 when the bill of indictment

having been found by the Crown prosecutor, the

matter was listed in the district court. Both

parties appeared and a hearing date was fixed for February 1987. It was not until February

1987 that the application was made for the stay

and we would submit that it really is explicable

in the light of the fact that such applications

had become fashionable rather than in the light

of the fact that the appellant, in 1986, perceived

any disadvantage such as to invite the remedy

which is now sought.

BRENNAN J: Could you explain to me what is the statutory context in which bills of indictment are found

in New South Wales and matters are listed in

the district court? Perhaps later in your argument

might be more convenient. It is just that I

would like to know the statutory context in which

this matter falls.

MR MASON:  Yes, I will at the end of my submission, if

I may, thank you. We submit that there is nothing

in the reasoning of the Court of Appeal that

supports the submission of my learned friend

that the Court of Appeal held that delay could

never be enough. On this alternative arm of

the fork delay alone may be enough if the court,

having given effect to the other factors, exercising

the balancing process, decides that there should

be a stay. The court did not decide below and

did not assert that mere delay could never be

enough.

(Continued on page 63)

C2T41/1/ND	62	11/4/89
Jago(2)

MR MASON ( continuing)-: Your Honours, I will pass over

paragraph 5 because it, really, I think, has been

covered in what I have already put. Our submission

in paragraph 6 is that the claim that there is a

common law right to a speedy trial as something

distinct from what we have been hitherto addressing

gains no support from history and, perhaps, the

strongest point is the one which we confess was

so obvious we did not mention it and did not think

of until Your Honour Mr Justice Brennan did; that,

really, there is no case in which such power appears

to have been exercised.

We would also rely upon the fact that limitation

statutes, including some directed at criminal matters,

were passed in medieval times and,in the references to

HOLDSWORTH, it is particularly those in volume 4 at

498 and 499 and 525 which are criminal limitation

statutes. Our submission is that we adopt the

analysis of Mr Justice Samuels; that we submit that

one cannot draw any support from the history of the

writ of habeas corpus because it guaranteed liberty;

in other words, getting bailed rather than getting a

speedy trial for a bailed defendant.

We submit that it is an historical error to read chapter 29 of Magna Carta as giving a right in a

criminal matter to object to delay in itself. We have copied those two historical works that are referred to.

Your Honours, each of them concentrates more on the

promise not to sell justice than to delay justice or

defer justice but in the book of Mr McKechnie, at

page 396, in the left-hand column, half-way down the

page:

Those who framed this chapter desired

to secure a more reasonable measure of reform:
abuses of the system were to be redressed.
Unfortunately, it was not easy to define

abuses - to determine where legitimate payments

stopped and illegitimate ones began. Prohibitive

prices ought not to be charged for writs de cursu;
but was the Crown to have no right to issue writs

of grace on its own terms? Plaintiffs who had

any special reason for haste frequently paid to

. have their suits heard quickly: was that an abuse?

And footnotes 1 and 2 deal with some historical

instances of paying to speed up the system. Now,

our submission is that, if one reads the promise in

its historical context, the promise of the king not

to delay or sell justice was a promise to refrain from

actively interfering in the process of justice by

stopping it from carrying out its ordinary course

C2T42/l/SH	63	11/4/89
Jago(2)

and that delay in this context should be seen

in a transitive or active sense, rather than as

giving rise to a general constitutional right
upon which is constructed the claim in the present

case.

We do not wish the Court to press the historical

matter unduly but, since an historical case is put

against us, we do refer to it. There is some
discussion about the meaning of the word "delay"

in CLAYTON's case, that is the CLAYTON's case in

South Australia, at page 105.

Your Honours, as was pointed out by my learned

friend, Magna Carta was re-enacted in New South Wales

or continued in New South Wales by the IMPERIAL ACTS

APPLICATION ACT, 1969. The report of the New South

Wales' Law Reform Commission which led to the passing

of that Act referred to that matter at page 62. It

is LRC4 and the reason given for re-enacting chapter 29

alone of all the chapters of Magna Carta was, they said,

"This leaves chapter 29, the value of which is chiefly

by the re-enactment. Again, I do not wish to take that

sentimental." There is a reference made to Windeyer's
lectures on legal history. "In our view, of all the

provisions, this alone requires to be preserved."

too far.

We would submit that the right, as found by

Mr Justice McHugh, lies ill with the recognition that

the common law had the maxim of nullum tempus which

allowed the prosecution to commence at any time after

the lapse of the offence no matter what prejudice in

an objective sense appeared to follow from that.

(Continued on page 65)

C2T42/2/SH	64	11/4/89
Jago(2)

MR MASON (continuing): Finally, on the historical matter, if we

could just add, with reference to that passage in

RAHEY's case at 635 and 636 in the judgment of

Mr Justice La Forest that my friend referred to, that

passage supports the submission that the common law

did not, in its medieval development at least, have

an adequate remedy to give effect to the right that

is now being asserted.

BRENNAN J:  But it was not necessary,was it, in the sense that

if you had gaol delivery, then that was the end of the

criminal calendar.

MR MASON:	Yes, and the idea that it was not seen as we do today
that the criminal process starts with arrest and
is really a continuum that does not end with trial
but ends with dismissal of appeal; perhaps even at the end of the parole operation. But in medieval
times what Your Honour says certainly showed why,
with the availability of gaol delivery, this sort of issue would be arising.

In paragraph 7 we have given Your Honours a

reference to the Canadian passages which make plain,

depends explicitly upon a constitutional and	in our submission, that the Canadian jurisprudence
statutory right which was recognized as being
conceptually distinct from the common law right. We
do have copies of that article by Mr Levesque which
analyses the decisions of the supreme court in
MILLS and RAREY, and discusses what ratio one
derives from the plethora of reasons of Their Honours.

Your Honours, if we are wrong in all of this and

there is a right to be tried within a reasonable time

or a speedy time, we address in paragraph 8 the

factors that, in our submission, would need to be

addressed in the formulation of the right. The

question of whether the societal interest does come

into the balance of what is a reasonable time; the

concept of excludable delay; we refer to the fact

that in those jurisdictions, Scotland, England,

America and Victoria, that have statutory provisions,

there is, in each case, a judicial let-out, as it

were, whereby the court can excuse delay and,

in··all .. cases it is a broad and untrammelled judLcial

discretion to excuse delay.

There is the question of pre-charged delay and

the question of whether it in any way impacts upon

what is a reasonable time post-charge. The reference

to the passage in HERRON's case in (c) is to a

statement by Mr Justice McHugh to the effect that

any right flowing from MAGNA CARTA looks just at

delay post-charge and not delay pre-charge. In ( d) we

address the case of how the rule would operate with

various categories of accused persons. If I may just

say this, that Your Honour the Chief Justice made some

C2T43/l/VH	65	11/4/89
Jago(2)

reference recently to the average length of delays

in the New South Wales criminal justice system

affecting persons who are accused and in custody.

One fact that the statistics do not reflect is the

differentiation between those who are in custody

serving a pre-existing sentence and those who are

in custody on remand.

The question of acquiescence by the defence:

what if the defendant says that"it is going too fast

for me," and what happens if the defendant says

nothing? We do not suggest that an accused person

has some right to demand that he or she be tried

but if the accused person says nothing when, as in

this cas~ he had legal ~ssistance, knew he had been

connnittedj does that in any way impact upon what is

a reasonable time when later he or she says there

has been an unreasonable delay?

There would be the question of a phasing-in

period which the Court might need to consider which
raises the whole spectre of prospective overruling

and we just cite the Canadian Supreme Court when it

created a rule; accepted that there might need to

be some phasing-in period.

(Continued on page 67)

C2T43/l/VH	66	11/4/89
Jago(2)

MR MASON (continuing):  The only reason for perhaps some

concern on this level is that Mr Justice McHugh

in ABOUD said that there should be prima facie

a breach of the right after a 12-month delay and

if a speedy trial right were to be crystallized

in any such rule there would be, in our submission,

a need at least to have regard to some question

about the impact upon matters that are presently

in the system and matters that might come into the

system at a later stage.

DEANE J:  But on any approach the word "right" can only

be shorthand for something else here, can it not?

I mean, we talk about the right to a fair trail

which means that no-one can be convicted except

after a fair trail, so the real question must be,

if Mr Justice McHugh's approach is correct, must

it not, whether one adds to that principle

no one can be convicted except on a fair trial which

takes place within a reasonable time of something?

MR MASON:	Yes.
DEANE J:	I am not asking for your assent.
MR MASON:	No.
DEANE J:	It is no doubt a convenient shorthand way of

talking about it but it is very hard to see how

it can be a right in any real sense if what you

seek in vindication of your right is not to have a

trail at all.

MR MASON:  Yes. Your Honours, I think the other matters

in our submissions may speak for themselves. May

I just then, in conclusion, say something about the

present system and endeavour to answer Your Honour

Justice Brennan in the course of doing so.

Since 1985, which one may take as perhaps the mean

period in JAGO's case, there have been certain

developments which perhaps the Court should be

aware of in considering the present rule that should
be adopted.	The first is there has been a

DIRECTOR OF PUBLIC PROSECUTIONS ACT of 1986 which

established a body whose function included the

con_duct and management of criminal proceedings in

all their stages, with particular reference to

sections 7 to 9 of that Act.

There is a CRIMINAL PROCEDURE ACT of 1986,

section 9 of which provides that:

C2T44/l/HS	67	11/4/89
Jago(2)

If the period prescribed by the

regulations ..... has passed since an

accused person was committed for trial

without the matter having been -

(a) brought before the Supreme Court or
the District Court in relation to the matter;

or

(b) terminated,

the Criminal Listing Director shall
arrange for the matter to be listed for

mention as soon as practicable.

And there are regulations, the Criminal Procedure

Regulation of 1987 and the times prescribed vary depending upon whether the person is in custody or

not, a juvenile or not, and the basic period is

that if the accused person is in custody and a

juvenile, 3 months; not a juvenile, 4 months;

not in custody 9 and 12 months.

BRENNAN J:	Prescribed time for what?
MR MASON:	If that time elapses the criminal listing

director , 1a s the duty to have the matter 1 is t e d

before the court. This is designed to ensure that

there is an effective link between the committal

court and the trial court.

BRENNAN J:	What does "listing" mean?
MR MASON:	At the listing - may I just proceed to the

next step and come back?

BRENNAN J:  Yes, of course.

(Continued on page 69)

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MR MASON:  At the listing - may I just proceed to the next

step and come back - there are some criminal

procedure rules in the district court, the main

trial court, which are found in Part 53 of the

District Court Rules which were passed in 1987

and they provide for various powers in the court

to take place at the listing stage and, in effect,

they allow a number of things that, on a strict
view, would only take place at the trial after

the presentation of the indictment to take place

by way of pre-trial matter. They include motions

to stay, return of subpoenas, arguments about

venue, et cetera, and, at a listing hearing,

these matters can be addressed ·and also a date

will be fixed for hearing.

As my learned friend pointed out, in WATSON's

case, the Court of Appeal took the view that

it is no longer realistic in New South Wales

to regard the criminal process as commencing when the indictment is filed and the accused person is arraigned but given the range of powers

that the district court then had, even before

these recent amendments, to deal with matters

such as bail and the like, it was more realistic

to treat the court as having been seized in effect

with some general criminal jurisdiction upon

the committal order being made even though there

might never be found a bill at all by the Crown.

BRENNAN J: But the jurisdiction of the district court is

surely statutory, is it not?

MR MASON:  Yes.

BRENNAN J: What statute vests it with this jurisdiction?

MR MASON:  There is a DISTRICT COURT ACT which makes reference

in very general terms to the criminal jurisdiction

of the district court.

BRENNAN J: I presume there are then some other Acts which

vest in the district court jurisdiction to hear

and determine criminal trial?

MR MASON:  Yes, the BAIL ACT gives specific powers in the

district court to grant or regulate the bail

of persons who have been committed for trial

before them. It was principally the provisions

of the BAIL ACT ~nd the fact that the district

court would become the court of trial when the
indictment was formally presented that led the

Court of Appeal in WATSON to hold that in a sense

sufficient to enable the court to have jurisdiction

to grant a stay, that court was seized with

jurisdiction even before the trial commenced

or the formal arraignment took place.

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What happened in practice was that the

Crown when· told a stay application was going

to be made would present a draft copy of the indictment and the stay application would be

sought even though there had not been a formal

arraignment.

BRENNAN J:  I could understand that a jurisdiction exists

once an indictment is presented, I simply cannot

understand how a jurisdiction exists before an
indictment is presented but perhaps the listing

procedure contains the answer, I do not know.

MR MASON:  What happened when WATSON's case was decided -

Your Honour, I must say I appeared in WATSON and I argued the very points that Your Honour

was putting to me without success before the

Court of Appeal.

BRENNAN J: Perhaps if you just give me the page references

where Their Honours deal with the problem.

MR MASON: Certainly. 8 NSWLR, particularly at 699 to

701.

BRENNAN J: Thank you.

MR MASON:  The only other thing I wish to say about the

statutory provisions is that section 9 of the

CRIMINAL PROCEDURE ACT of 1986 - and that is

the form as amended in 1988, I would add - provides,

in effect, for a notice of readiness to be made

available within a limited period of time and

for that to have attached to it, among other

things, a copy of a draft indictment. So whatever

may have been the statutory basis in WATSON's time there is now in - did I say section 9? -

regulation 9 of the criminal procedure regulation

of 1987 - - -

GAUDRON J:  Mr Solicitor, could I ask this: I take it,

of committal is forwarded to the court to which	under the new procedures, et cetera, the notice
committal is made.

(Continued on page 71)

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MR MASON:	Yes.
GAUDRON J:	And that happens at the time of committal?

MR MASON:  Yes. May I correct myself again, it was section 9

in the first place, not regulation 9. Yes, under

part 53 of the District Court Rules, rule 2 provides

that:

Where an accused person is committed for trial

to the District Court the clerk of the local

court shall as soon as practicable forward a

record -

and there is a detailed list of what that record

must contain. That enables the court, when it

exercises its listing for directions power to be

seized of relevant information about the case,

and rule 6 of those rules enables the court at

the listing to give directions for:

the proper, speedy and convenient hearing of

the proceedings.

If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Hamilton.

MR HAMILTON:	We have nothing to put to Your Honours in reply.
MASON CJ:	The Court will consider its decision in this matter.

AT 2.54 PM THE MATTER WAS ADJOURNED SINE DIE

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