Johnstone v Director of Public Prosecutions

[2010] HCATrans 28

[2010] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M88 of 2009

B e t w e e n -

PETER JAMES JOHNSTONE

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF SCOTT JAMES MATHESON)

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 2010, AT 2.15 PM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR P.J. BILLLINGS, for the applicant.  (instructed by Pearce Webster Dugdales)

MR D.A. TRAPNELL, SC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondent.  (instructed by Solicitor for Public Prosecutions - Melbourne)

FRENCH CJ:   Mr Nash, we might hear you first and separately on the question of the extension of time which you seek?

MR NASH:   In relation to the extension of time, if the Court pleases, there is very little that can be said, in one sense.  The Court, historically, has taken a liberal view, we would say, to the extension of time in criminal matters but here what has happened, as appears from the affidavit sworn by Mr Hanafin is that the applicant was absent from Australia and he was not advised of his right to seek special leave until 12 May last year.  He then returned to the Middle East and did not give instructions until some time in September.  An application was filed in late October 2009.  That is the sequence.  We say that the explanation is a thin one.  We concede that.  There is no prejudice to the respondent and no prejudice is suggested in the respondent’s argument.  There is not much more I can say.  I can go on and repeat what I have said.

FRENCH CJ:   Yes.  The difficulty that, speaking for myself, I have is that this is not a matter of a few days, this is a matter where he apparently received advice on 12 May and then waited some four months, I think, before instructing his solicitors to file an application.  There is actually no explanation for that delay.

MR NASH:   I was going to ask if the Court would hear me very briefly, not strictly in relation to that question but relevant to that question.  We say that there is a very serious issue here.  It has been expressed in terms of paragraphs (b) and (f) of the Road Safety Act section 49(1), but in substance there is a really significant issue as to the circumstances in which two offences can be charged and where the two offences in fact depend upon exactly the same proofs and in relation to that ‑ ‑ ‑

FRENCH CJ:   We have read the submissions and understand the point.

MR NASH:   Yes, your Honour.  There is one point that is probably badly – not badly expressed in the submissions – erroneously expressed in the submissions and that relates to the more serious offence.  The question of principle really relates to the question whether, where two charges are

laid in that form, the court should convict on that offence which truly reflects the criminality involved.

FRENCH CJ:   If this reflects a charging practice it may well be it will come up again.

MR NASH:   It may well come up again, your Honour, but it is a ‑ ‑ ‑

FRENCH CJ:   By someone who is prepared to take their rights seriously.

MR NASH:   Would the Court pardon me a moment?  My learned junior may be about to assist me.  My learned junior points out that there is a precedent sitting there in the Court of Appeal at the moment and if that precedent stands then it is going to be a difficult task to get to this Court.  I have gone further than I was really entitled to go, your Honour.

FRENCH CJ:   Yes, all right.  I will hear from Mr Trapnell on the question of the extension of time.

MR NASH:   Yes, your Honour.

FRENCH CJ:   Thank you.  Yes, Mr Trapnell.

MR TRAPNELL:   May it please the Court.  Clearly, it is opposed.  In my submission, it is incumbent upon a litigant to remain in contact with his or her legal advisers for the purposes of making decisions which are important to the conduct of the litigation and it is not, in my submission, excusable unless there are some very, very exceptional circumstances, which these are not, for a litigant to put himself beyond the ability, apparently, of his advisers to consult him and get instructions from him.  As the learned Chief Justice has already observed, there is still the totally unexplained period of nearly four months between the conference with senior counsel on 12 May and the instructions to file the application on 9 September.

FRENCH CJ:   Perhaps he was infected by the general leisurely pace of these proceedings overall.

MR TRAPNELL:   Yes.

FRENCH CJ:   Just looking at the sequence, I think there were 14 months elapsed from his charging to the hearing and determination of the charges and I think another 17 months from the lodgement of the notice of appeal until the appeal was heard, then nine months from hearing until judgment.  The process that comes before us today is four years after the applicant was charged with the offences in question.

MR TRAPNELL:   Yes, and the matter is still unresolved because there is, of course, the order of the Court of Appeal remitting it back to the Magistrates Court to be finally determined, so there is still some further water to pass under the bridge, your Honour.

FRENCH CJ:   Very, very slowly, it seems.  It is almost as though it is frozen.

MR TRAPNELL:   Yes, your Honour.  I would be submitting that it ought to be unfrozen today.

FRENCH CJ:   Yes, all right.

MR TRAPNELL:   Thank you, your Honour.

FRENCH CJ:   Do you want to say anything in reply?

MR NASH:   Nothing in reply.

FRENCH CJ:   This application for special leave to appeal is brought out of time by a period of some five months.  In our opinion the explanation for the delay is inadequate.  The judgment against which special leave to appeal is sought was given on 20 March 2009.  The applicant’s solicitor has sworn an affidavit stating that when leave to appeal was refused by the Court of Appeal he was unable to contact the applicant who ultimately contacted him on or about 10 May advising that he had been working in the Middle East on a water conservation project.  The affidavit does not disclose how long the applicant had been back in Australia at the time that he contacted his solicitor.

In any event, the applicant was present at a conference with senior counsel on 12 May 2009 at which advice was obtained about an application for special leave.  Instead of then giving instructions to his solicitor in relation to the application the applicant shortly afterwards returned to the Middle East to work and did not provide instructions until 9 September 2009.  No explanation has been given for that delay which was substantial.

In the case of a substantial delay in an application for special leave, the Court will require a comprehensive and detailed explanation of the reason for the delay. While the application raises an interesting question concerning the interaction of sections 49(1)(b) and (f) of the Road Safety Act 1986 (Vic), it does not have such prospects of success as to displace the inadequately explained delay in bringing the application. The application for an extension of time is dismissed.

MR TRAPNELL:   There is no application for costs, your Honour.

FRENCH CJ:   No application for costs.  Yes, thank you.

AT 2.23 PM THE MATTER WAS CONCLUDED