Leach v Director of Public Prosecutions (Cth) - [2019] HCATrans 138

[2019] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B23 of 2019

B e t w e e n -
PHILIP DENIS LEACH
Plaintiff
and
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON TUESDAY, 25 JUNE 2019, AT 9.15 AM

MR P.J. DUNNING, QC: May it please the Court, I appear with my learned friend, MR B.A. BLOND, for the plaintiff. (instructed by Pharmacis Canning)

MR L.K. CROWLEY, QC: May it please the Court, I appear with my learned friend, MS A.C. FREEMAN, on behalf of the defendant. (instructed by Director of Public Prosecutions (Cth))

HIS HONOUR: Thank you, Mr Crowley. Mr Dunning.

MR DUNNING: Thank you, your Honour. Your Honour, the parties have been unable to find agreement on the appropriate course for the proceedings. The extent of the controversy between the parties in one sense seems to be complete. The plaintiff contends it is a matter that is appropriate for a special case to be referred to the Full Court. The CDPP suggests it should be remitted to the District Court to be determined in that court, although there is no application at the moment on foot for remitter. The competing arguments are set out in the written outlines.

HIS HONOUR: Yes, you can take it, Mr Dunning, that I have read those submissions, including your recently filed submissions in reply and that I have formed a preliminary view that remitter is appropriate. Now, it seems to me that the application that you currently have in the District Court is an application in respect of which substantial evidence has been filed, as I understand it.

MR DUNNING: There are a couple of affidavits, if that passes as substantial evidence.

HIS HONOUR: I take it that that evidence covers much of the substratum of fact that you would be seeking to base your constitutional argument on.

MR DUNNING: I cannot give your Honour a specific answer to that because I have not been involved in that. I only became involved in the matter shortly after 10 April and so I was not a part of the application in the District Court. I understand that application…..something of it, does raise some allied issues, but is largely the sorts of discretionary considerations, including going to a stay, that are not a feature of this application.

HIS HONOUR: Yes, in very broad terms, it is about the fairness or possible fairness of the trial.

MR DUNNING: In the District Court, yes.

HIS HONOUR: Yes.

MR DUNNING: Whereas the proceedings – I do not mean to cavil with your Honour if your Honour has made a preliminary view.

HIS HONOUR: No, I do not want you to stop me – I do not want to stop you from attempting to persuade me to the contrary.

MR DUNNING: Well, your Honour, I will not rehearse those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leach v Director of Public Prosecutions (Cth)

Details

AGLC: Leach v Director of Public Prosecutions (Cth) [2019] HCATrans 138
Case: [2019] HCATrans 138
Decision Date

CaseChat Overview and Summary

Leach (the applicant) sought judicial review of a decision by the Director of Public Prosecutions (Cth) (the respondent) to refuse to grant a certificate of no objection under s 19(1) of the *Director of Public Prosecutions Act 1983* (Cth) to permit the applicant to appeal against his conviction and sentence for a Commonwealth offence. The application was heard by Gageler J of the High Court of Australia.

The central legal issue before the Court was whether the respondent's decision to refuse the certificate was vitiated by an error of law, specifically whether the respondent had failed to take into account relevant considerations or taken into account irrelevant considerations when assessing the applicant's prospects of success on appeal. The applicant contended that the respondent's assessment of the grounds of appeal was demonstrably flawed, thereby constituting an error of law.

Gageler J reasoned that the respondent's power to grant or refuse a certificate of no objection involved a two-stage process. First, the respondent was required to form a genuine opinion as to whether there were reasonable prospects of success on appeal. Second, if that opinion was formed, the respondent was then required to exercise a discretion as to whether to grant the certificate. His Honour found that the respondent's assessment of the applicant's grounds of appeal was based on an erroneous understanding of the relevant legal principles and the evidence, particularly concerning the admissibility of certain evidence. This misapprehension meant that the respondent had failed to consider the true nature of the grounds of appeal, thereby vitiating the decision-making process.

Consequently, Gageler J quashed the respondent's decision to refuse the certificate and remitted the matter to the respondent for reconsideration according to law.

Orders