King v The Queen

[2002] HCATrans 433

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P28 of 2001

B e t w e e n -

RODNEY NATHAN KING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 25 OCTOBER 2002, AT 10.07 AM

Copyright in the High Court of Australia

MR R.N. KING appeared in person.

MR K.P. BATES:   May it please the Court, I represent the respondent.  (instructed by the Director of Public Prosecutions for Western Australia)

GAUDRON J:   Yes.  Now, could you come over – and you will have to keep your voice up, Mr King, because this is not a microphone, it is just a recording system.

MR KING:   I would like to ask the Court if they will allow a friend to sit with me to comfort me, please.

GAUDRON J:   There is no difficulty about that.

MR KING:   Your Honour, before I start, I would like to know if the Court can instruct Legal Aid – I would like to know if the Court can instruct Legal Aid to appoint me a lawyer to defend this matter as I think it is in great public interest and in the administration of justice.

GAUDRON J:   We cannot do that.  Do you mean if leave is granted or ‑ ‑ ‑

MR KING:   No, to ‑ ‑ ‑

GAUDRON J:   You want it now?

MR KING:   Yes, your Honour.  I have paperwork saying Legal Aid approve that I am going to get special leave to hear section 87 of the Sentencing Act but I have been instructed that I have a very strong argument in my case and I need a lawyer to help me through it.

GAUDRON J:   We cannot instruct Legal Aid.  Prima facie, however, we do think you have an argument to be made in this case, both in relation to the sentence and perhaps the charge that was laid.  Perhaps we will take this up with Mr Bates, at this stage.  Mr Bates, as I read this matter, the elements of the offence charged were that he was in his wife’s house without her consent and there committed a crime.

MR BATES:   That is correct.

GAUDRON J:   The crime committed was breach of a restraining order and the breach of the restraining order, as the matter seems to have gone to the jury, was being in his wife’s house without permission.

MR BATES:   That is correct, your Honour.

GAUDRON J:   There is something odd about that, is there not?

MR BATES:   We would submit not.  We would submit this was a case of aggravated burglary and ‑ ‑ ‑

GAUDRON J:   But the aggravation comes from the detention.

MR BATES:   That is correct, your Honour.

GAUDRON J:   Yes.  So do not worry about that.  What I am asking is, really, is there any authority that says an offence for the purposes of – is it section 401(2) ‑ ‑ ‑

MR BATES:   That is correct, your Honour.

GAUDRON J:   ‑ ‑ ‑ is in substance the offence of being in a person’s house without permission.

MR BATES:   There is no authorities that I am aware of.  We would submit that the offence is being in a place without consent, commits an offence.  In this case the offence was the breach of the violence restraining order.

GAUDRON J:   Which in turn was being in the place without consent.

MR BATES:   We would submit there is no difficulty in charging the matter in that particular manner and the matter going before the jury and being decided in that particular way.

GUMMOW J:   Well, there does seem to be a problem.

GAUDRON J:   The question is – I take it that is the matter you wish to argue, is it, Mr King?

MR KING:   That is one of the points, your Honour, and the other point is the judge telling the jury I am guilty of the offence and the offence is breaching the restraining order and saying it is clear and unequivocal.

GAUDRON J:   Yes.  We really have two options at this stage.  We can adjourn this application and make a recommendation to the Bar Association of Western Australia that they provide you with pro bono legal representation and leave the matter in abeyance, really, until it is determined.  We could, on the other hand, perhaps refer the application to a Full Court to be dealt with as on appeal but without any grant of special

leave and do that with a recommendation to the Western Australian legal profession that you be granted pro bono legal representation.

MR KING:   You see, my problem is, your Honour, that the prosecutor that took my case to the District Court is now working for Legal Aid.

GAUDRON J:   We cannot go into that.

MR KING:   I understand that, your Honour.

GUMMOW J:   Anyhow, we are not talking about Legal Aid.

GAUDRON J:   We are not talking about Legal Aid.

GUMMOW J:   We are talking about the Bar Association providing a barrister, pro bono, for you.

MR KING:   Your Honour, I have tried that.

GUMMOW J:   Well, things tend to happen when we say something.

MR KING:   I hope so, your Honour.

GAUDRON J:   Mr Bates, there does seem to us to be something to be argued in this case.

MR BATES:   Yes, the applicant was represented by pro bono counsel in the Court of Criminal Appeal, so maybe an approach could be made to him and, also, given the comments from the Bench, I am sure that someone from the Bar Association would appear pro bono.

GAUDRON J:   We will simply direct the Registrar to approach the Bar Association with a copy of this transcript. We take no further part in that.  Now, do you object to the proposal that this be referred to a Full Bench?

MR BATES:   We would prefer to see the matter dealt with on a special leave with the applicant being represented by counsel.  That would be our preferred approach.

GAUDRON J:   Yes.  There would be no grant of special leave today.  You could still resist the grant of special leave.

GUMMOW J:   It simply would be heard by an enlarged Bench.

MR BATES:   Yes.  Given the age of the matter and given that the applicant has served his time, that may be preferable.  In that way the matter can be disposed of on the one hearing without the need for two hearings.

GAUDRON J:   Yes.

GUMMOW J:   That is what we have in mind.

GAUDRON J:   I think that is what we will do, Mr Bates.  We will simply refer the matter to a Full Bench.

GUMMOW J:   Which will have to be in Canberra.

GAUDRON J:   Yes.

MR BATES:   Yes.  There seems to be two grounds raised.  One is the consent issue appearing in two parts of the burglary charge and the other is the backdating issue.

GUMMOW J:   There is also a complaint about sentencing, is there not?

GAUDRON J:   Yes, there is a complaint about sentencing.  It seems to me that if counsel comes into this matter there may be need to recast the submissions and the grounds of appeal.

MR BATES:   Yes, your Honour.  The concern about sentencing relates to both the manifestly excessive and also the backdating issue.

GAUDRON J:   It also relates, I think – it must relate, I think, to the fact that when you go around in circles, as you say is permissible, what this man did was breach an apprehended violence order for which the sentence is 18 months.

MR BATES:   That is correct, your Honour, yes.

GUMMOW J:   He got rather more.

MR BATES:   Yes.  He got seven years with allowance of a year for time in custody.

GAUDRON J:   Eight, was it not?

MR BATES:   Eight was the staring point and he got a year off to take into account the 13 months he had spent on remand.

GAUDRON J:   Yes.  Mr King, there is one thing.  We cannot determine who your counsel would be or any of the other matters.  I saw you shaking your head at the suggestion.  Perhaps you might like to take those matters up with the Registrar – you should not mention them here in Court – but we would expect from you that if pro bono representation is provided to you, you will accept it and abide by the advice that you are given in relation thereto.  Can we assume that that will be so?

MR KING:   It will be, your Honour.

GAUDRON J:   Yes.

MR KING:   I have one more thing to ask the Court, if it can.  I submitted another application to be reheard on different grounds in the Court of Criminal Appeal.  Now, the grounds that I am relying on are crucial to my part to be heard in the High Court.

GAUDRON J:   Does that arise out of the same charge?

MR KING:   It does, your Honour.

GAUDRON J:   No, I think – look, you may think they are crucial.  It will be a matter for counsel to work out what is crucial.  I mean, very often unrepresented people think they are crucial when they are really not.

MR KING:   Thank you, your Honour.

GAUDRON J:   Yes.  We will simply order that this matter be referred to a Full Court.

MR BATES:   May it please the Court.

GAUDRON J:   It should not take more than a day, should it?

MR BATES:   No, your Honour.

GAUDRON J:   We will indicate it will not take more than a day and we will direct the Registrar to send a copy of our remarks today, or send a transcript of our remarks today to the Bar Association – is there a Bar Association?

GUMMOW J:   The Independent Bar.

GAUDRON J:   The Independent Bar of this State.

MR BATES:   Yes, there is a Bar Association.

GAUDRON J:   If they are unable to assist, perhaps the remarks could be sent to a Bar elsewhere in the nation. 

The Court will now adjourn until 9.30 am in Sydney on Tuesday, 5 November.

AT 10.20 AM THE MATTER WAS ADJOURNED