Jago v The District Court of New South Wales

[1988] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S74 of 1988

B e t w e e n -

NOEL HAROLD JAGO

Applicant

and

THE DISTRICT COURT OF NEW SOUTH

WALES

First Respondent

and

HIS HONOUR JUDGE BARRIE THORLEY

Second Respondent

and

THE ATTORNEY-GENERAL FOR NEW

SOUTH WALES

Third Respondent

Jago

Application for special leave to

appeal

MASON CJ
BRENNAN J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 NOVEMBER 1988, AT 11.49 AM

Copyright in the High Court of Australia

SIT7/l/PLC 1 25/11/88

MR J.P. HAMILTONd ~C:  If the Court pleases, I appear with my

learne riend, MR P.K. LAKATOS, for the applicant.

(instructed by the Legal Aid Connnission of New South

Wales.

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

Court pleases, I appear with my learned friend,

MISS R.A. DONNELLY, for the third respondent, the

first two respondents being submitting parties.

(instructed by the Solicitor for Public Prosecutions

and Clerk of the Peace)

MASON CJ: Yes, and Mr Solicitor, what is your attitude to this

application?

MR MASON:  We say that the principle adopted by the majority is

clearly correct and, for that reason, special leave

should be refused.

MASON CJ: Yes, I see. Yes, Mr Hamilton?

MR HAMILTON:  Your Honours, we have prepared a written outline

of submissions which, with Your Honour's permission,

we will hand up.

MASON CJ: Yes, thank you.

MR HAMILTON:  Your Honours, in our respectful submission, this

is a case which clearly raises an important point of

law concerning the principles on which courts

undoubted jurisdiction to stay criminal trials as an abuse of process by reason of the passage of

time and whether or not, in combination with other

circumstances arises - - -

MASON CJ: Now, the point of principle that divides the majority	from the minority is the suggestion by Mr Justice McHugh
that there is a con:nnon law right to a speedy trial?

MR HAMILTON: Yes, Your Honour.

MASON CJ: Now, first of all, do the recent amendments conferring

this jurisdiction on the Court of Criminal Appeal,	taking it away from the Court of Appeal, affect that
question at all?

MR HAMILTON:  As we understand, Your Honour, not. They are

merely procedural and affect the journey which any	application is likely to follow. It is arguable,
in our submission, Your Honour, on the present legislation that there -

MASON CJ:  Can you refer as to the present legislation?

MR HAMILTON: ·I am sorry, Your Honour, I - it is section SF

of the CRIMINAL APPEAL ACT.

BRENNAN J: What jurisdiction is conferred by section SF? To do

what?

SlT7/2/PLC	2	25/11/88
Jago

MR HAMILTON:  Your Honour, unfortunately, I have obviously

foolishly regarded those provisions as sufficiently

irrelevant not to have brought them with us. Our

understanding - - -

MASON CJ:  Does the Solicitor have them? Does he have copies

for us?

MR HAMILTON:  No, I am at least in good company in that the

Solicitor-General, I gather, has taken the same view,

Your Honour.

MASON CJ:	I would have preferred to say "bad company" actually.
MR HAMILTON:	As to persons, Your Honour.
MR MASON:	I have a recollection of what SF says if it is

of any assistance.

MASON CJ:	Do you have a precise recollection of what it says?
MR HAMILTON:	I have one too but I would rather he goes first,

Your Honour.

MASON CJ: You tell us, would you?

MR MASON:  It is that a right of appeal in some cases and

a right to seek leave to appeal in others is given

against certain interlocutory decisions of the

District Court in connection with criminal matters

and of magistrates also.

MASON CJ: And the provision says nothing about the bases on

which a decision of the court is to be given in

relation to that right?

MR MASON:  No, it just talks about leave.

MASON CJ: In other words, it seems to confer a procedural

right of appeal, on what you say, without any reference

to the substance of the right that underlies the

procedural right.

MR MASON: Correct, yes.

BRENNAN J: So, it is to all interlocutory proceedings, is it?

MR MASON: All interlocutory decisions in criminal matters.

BRENNAN J: In criminal matters?

MR MASON: Yes.

MR HAMILTON:  And because of that, Your Honour, we have taken

the view that - - -

MASON CJ: Your assumption seems to be correct, Mr Hamilton.

MR HAMILTON:  Yes. I am sorry that we were not more prepared

to direct Your Honours to the terms of it but we have

SlT7/3/PLC	3	25/11/88
Jago

taken the view, indeed, that it is still arguable

upon that that the Court of Appeal's jurisdiction

remains vested in it exactly as it is and, indeed,

the supreme courts generally but that the policy of

the legislation really appears to be this, that in

order to prevent a multiplicity of proceedings of

this nature in the Court of Appeal a clear procedural

track is evolved whereby the applications will, as a

matter of course, be made to trial judges and then

the appeal from those decisions will go to the Court

of Criminal Appeal which can be characterized as both

the specialist and perhaps the every- day criminal

appellate court rather than - - -

BRENNAN J: The question will be, perhaps, whether these are

interlocutory orders.

MR HAMILTON:  I suppose that may arise, Your Honour. If it

is an interlocutory order then that is the result.

If it is not an interlocutory order then the

jurisdiction of the Court of Appeal and the supreme	court generally is not affected at all. And I suppose,
Your Honour, whether or not it is an interlocutory
order depends upon the interest in question cf whether
there is power to revoke -if I may put it that way -
a permanent stay. In other words, although the stay
is said to be permanent, having been imposed by the
court and being a stay rather than a judgment, it
would remain open to the court that granted it
subsequently to revoke it and to revoke it not upon
the principles as to setting aside a final judgment
by reason of fraud or otherwise but to revoke it on
by the court in appropriate circumstances without the basis that it was a judgment still re-callable
going to the question of setting aside a final judgment.

MASON CJ:  Mr Hamilton, what are the consequences generally - I

am not speaking about this case in particular - of the difference between the majority and the minority view?

If, for example, the minority is right, that is,

Mr Justice McHugh is right and there is a common law

right to a speedy trial, how does it affect the orders

that are made? I see in your notes you say.

an applicant relying on the common law right would

not have to show prejudice ..

MR HAMILTON:  Yes, Your Honour.

MASON CJ: Whereas, if the court were exercising a jurisdiction

not to enforce that common law right but, in effect,

to ensure the interests of justice to avoid any

abuse of process, then the court would be requiring an

applicant to show prejudice before it would grant a

stay. Now, there would be another difference, I

suppose, and that is ·that the existence of the cormnon

law right, of course, would naturally point to an

order for an expedited trial?

MR HAMILTON:  Yes, Your Honour.

SlT7/4/PLC	4	25/11/88
Jag_o

MASON CJ:  There would not be any right to such an order if, in

fact, there were not common law right to a speedy

trial.

MR HAMILTON: Yes, Your Honour.

MASON CJ:	Now, any other differences in consequence?
MR HAMILTON:	I think not, Your Honour, except that going past

this case, of course, it applies in a different class

of cases. I am only referring to the obvious

difference that Your Honour has adverted to. Whilst

that is obvious on the face of it, of course, that

may affect the rights of many people who can show

at the moment do not see consequences beyond that, delay but not specific prejudice but we certainly

Your Honour. But, certainly, Your Honour, it would

also be important in giving a power to a person who

comes early and says, "The delay is not yet so long

that I can really say, in the absence of prejudice, that the proceedings ought be permanently stayed

but for Heaven's sake have me tried'.'.

MASON CJ: ''But.: I ought to secure an expedited trial."

MR HAMILTON: Yes. And that also may be very important in a

wide variety of cases, Your Honour. But, we, at the

moment, do not see consequences beyond that, Your Honours.

BRENNAN J:  I am right in saying, I presume, Mr Hamilton, that

the positive law of New South Wales is devoid of

provisions which can be found in other places which

provide for an application to be made to be brought

to trial?

MR HAMILTON:	To the best of my knowledge, yes, Your Honour. The Solicitor-General will correct me if my knowledge
is defective.

MASON CJ: You are referring to those superior jurisdictions - - -?

BRENNAN J: Superior jurisdictions.

MR HAMILTON:  Yes. We have all correctly guessed at one of the

places that Your Honour Mr Justice Brennan refers to.

BRENNAN J: A most enlightened jurisdiction.

MASON CJ: Yes. Well, I think wherever the Code system prevails.

MASON CJ: Yes, so it may be in other Code States. Your Honours

do see also that beyond New South Wales certainly

applications of this sort have been occupying Full Courts

of other jurisdictions throughout Australia. I am not

suggesting_ to Your Honours necessarily as to the·

distinction between "speedy" trial and a "fair" trial

but none the less the overall importance of the matter

is emphasized by the fact that these applications are

being brought in other jurisdictions, and we mention

SlT7/5/PLC	5	25/11/88
Jago

some in the last paragraph of the outline, where

certainly there has been recent Full Court consideration

of the circumstances in which these stays ought be

granted.

MASON CJ: Yes. If this Court were to hold that there is a common

law right to a speedy trial, it is probable, I suppose,

that a similar right would exist in South Australia and

Victoria?

MR HAMILTON:  We believe so, Your Honours, yes. We are not, at

the moment, in a position to address Your Honours on

the exact differences of history and retention of

Imperial statutes and so forth that may be thought to

do it but Mr Justice McHugh certainly regards it as

something that has become rooted in the common law

and it would be in the common law of those other

States, as we understand it.

MASON CJ:  Mr Hamilton, without in any way indicating that you

have made particular ground with us at this stage,

it may be more appropriate if we hear what the

Solicitor has to say.

MR HAMILTON: If the Court pleases.

MASON CJ: Yes, Mr Solicitor? It seems to be an important point.

MR MASON:  That is not disputed but the question is whether

it is a clearly correct point or not. That is the

only issue we raise. Just in answer to the question
that Your Honour put: the procedural rules of the

District Court and the criminal listing provisions that now prevail in this State bring a situati.on

where there is an early listing date after committal
which enables a range of pre-trial motions to be made

in criminal matters even though the bill of indictment

has not been found or presented. Now, that is not
the same as being a specific time limit but it means
the sort of limbo that this case fell into would not

procedurally occur again.

Your Honours, we say that the decision of the

majority is clearly correct for four broad grounds:

firstly, the judgment of Mr Justice McHugh and the	test he proposes is inconsistent with the established
test flowing from BARKER V WINGO, the American Supreme
Court decision, which has been adopted into the common
law although based upon a constitutional provision in
the United States. It was that test that was applied in WATSON's case from which this Court refused special
leave and that test provides that delay is a"triggering
mechanism",to use the expression of Mr Justice Powell, which prompts a four-fold inquiry and a balancing test,
the fourth of the factors being the question of
prejudice. The stress on the merits of the individual
case which is implicit in that decision and the cases

SlT7/6/PLC	6	25/11/88
Jago

that have followed it is, we submit, inconsistent

with the idea that there can be some sort of reasonable

time limit of the nature that Mr Justice McHugh was

propounding which ignores entirely the question of

prejudice.

I may say, Your Honours, that the BARKER V WINGO

test has been adopted by the Full Courts in Queensland,

South Australia and Victoria so, at least, to that level, there has been an entire consistency in the

approach taken in this country. Secondly, we submit

that there is no precedent for a legal right to a speedy

trial which is enforceable by way of an order of stay

or dismissal. The Canadian and American cases which

deal with that issue are based upon constitutional

and statutory provisions and we would rely upon the

historical analysis of Mr Justice Samuels in the

present case as showing that there has never been any

decision which has said that the general acceptance

of an idea of a speedy trial has been converted into

the creation of a right to a stay or dismissal which

ignores the question of fairness of trial. And we

would refer to the fact that there have been specific

limitation statutes dealing with the need to commence

proceedings and, in many cases, the need to prosecute them promptly which, at least, reflect the void which

we submit is the void in the common law.

Thirdly, we submit that the idea that there is

a right such as Mr Justice McHugh found appears to

be quite inconsistent with the universal acceptance

of the principle that there is no statute of limitations

before the time at which a charge shall be brought.

It is quite clear that this right that His Honour is

speaking about is one which is triggered off from the time of charge to the time of anticipated trial. How,

can that, we ask, be consistent with the fact that the law
absent a statute accepts that crimin~l charges may be
reasonably or, shall I say, lawfully brought many, many

years after the offence. Fourthly, we submit that

a stay which is based on a concept of fairness of trial

is the basis upon which this Court expressed the
gener~l jurisdiction in BARTON's case and if fairness	is>to be the touchstone which, in our submission, it
is, then that is inconsistent with - or gives certainly
no support to a concept that a mere delay which does
not bring about a situation of unfairness, indeed, not
even prejudice, can be the principlew

MASON CJ: But BARTON does not help you, really, does i4 because

there was not any issue there as to the existence of a

right to a speedy trial?

MR MASON: That is correct. The second part of which Your Honour

satd is correct. We would respectfully differ from the

former in that we would say it helps in that the comm.on

law basis of the right to a stay was seen ultimately to

SlT7/7/PLC	7	25/11/88
Jago

flow from the inherent power of a court to ensure a

fair trial. Now, in our submission, that is the

interest which attracts the remedy at ultimate

analysis and that interest has not been triggered off

here.

BRENNAN J: But that was a case of a fair trial secured by the

following of an appropriate procedure.

MR MASON:  With the absence of connnitta~ that was said

to create the unfairness.

BRENNAN J:  And- the notion here is that fairness resides in

coming to trial within a time. That is a very different

concept.

MR MASON: Yes, it is and, really, in one sense, that is our

point, that there is no question of unfairness.

BRENNAN J: The point that you are making, as I understand it,

is that you would support the majority in their view

about UfairP trial?

MR MASON:  Yes.

BRENNAN J: What remedy is there available for a person who is

not going to get a fair trial because it is going to

be too late, if "fair triar'is a basis?

MR MASON:  If it is too late - if the delay means it will not

be fair, that is the remedy.

BRENNAN J: What is?

MR MASON:  The remedy is a stay and that is WATSON's case and

all of the other cases that have followed. If the

delay creates a situation of unfairness at trial -

and that is why you start to look at.questions of

lost witnesses, fading memories and the like - then

that is the jurisdiction and that is what triggers

off the jurisdiction, in our submission. But if the	delay is simply a factum which does not in any sense
impinge upon the trial process then our submission
is that it does not give rise to a right of stay or
dismissal. It may give rise to a right to get bail but it does not affect the conduct of the trial when
the matter is brought on. Now, when I say that - - -

BRENNAN J: What you are saying is that there is a connnon law

right to a fair trial but not a connnon law right to a

speedy trial?

MR MASON:  Yes.

BRENNAN J: Even though that which might be unfair is simply

lack of speed?

MR MASON:  I do not accept that a simple lack of speed can in

itself render the trial unfair. It is the consequences

S1T7/8/PLC	8	25/11/88
Jago

of the lack of speed which may or may not render

a trial unfair depending upon the impact those

consequences have upon the ability of the accused

person properly to defend himself or herself.

Your Honours, those are the reasons we advance

clearly correct and that is the basis upon which we	for the submission that the majority decision is
oppose leave.

MASON CJ:  Mr Solicitor, your views on the correctness of the

principle applied by the majority have undergone	something of a sea change, have they not, in the
last 12 months? I recollect you vigorously
disputing the correctness of the principle applied by the majo~ity in one of the earlier cases.

MR MASON:  Yes, but this Court held in WATSON's case that -

passed into orthodoxy and has ceased to be a matter upon which submissions are put to this Court.

as we have understood it and as later courts have

understood it and stated it -the test of which the

MASON CJ: Yes. As I recollect it, we said in WATSON that

the decision was right.	Did we say any more than
that?

MR MASON:  I can quickly read what Your Honours said:

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

refused.

MASON CJ: Yes, thank you.
MR MASON:	I think I have answered Your Honour's question.

MASON CJ: Yes, I accept that answer. The Court need not trouble

you, Mr Hamilton.

There will be a grant of special leave in

this case.

AT 12.12 PM THE MATTER WAS ADJOURNED SINE DIE

SlT7/9/PLC 9 25/11/88

Jago