Lessur-Millar v The Director of Public Prosecutions

[1989] HCATrans 314

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S28 of 1989

B e t w e e n -

RICARDO LES SUR- MILLAR

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Sunnnons to put applicant on terms

to prepare special leave application

MASON CJ
GAUDRON J

McHUGH J

Millar

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 1989, AT 10. 35 AM

Copyright in the High Court of Australia

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MR P. HASTINGS:  May it please the Court, I appear for the

Crown who is the applicant today but the respondent

in the proceedings proper.	(instructed by the Director
of Public Prosecutions)

MASON CJ:	Now, is Mr Lessur Millar here?
MR LESSUR-MILLAR:	Yes, Your Honour.
MASON CJ:	Would you come forward and would you take a seat

at the bar table.

MR LESSUR-MILLAR:  Thank you, Your Honour.

MASON CJ: Yes, Mr Hastings?

MR HASTINGS:  As the Court would appreciate, this matter, in

substance, is an application for special leave to

appeal against a decision of the Court of Criminal

Appeal in New South Wales given on 17 February this
year. The application for special leave was filed on

1 March this year but thereafter the applicant seems

to have taken no steps to advance the matter and,
in particular, does not appear to have appointed counsel

to appear on his behalf in order to have the matter

heard. A summ.ons has been filed in order to bring

the matter before the Court today seeking alternatively,
that the applicant be put on terms to do the necessary

matters to enable the matter to proceed to hearing or,

in lieu thereof, that the matter be dismissed for want

of prosecution.

We note, Your Honours, that there was a proceeding

yesterday returnable in the Federal Court in which

Mr Lessur-Millar seeks similar relief to that which he sought throughout the proceedings which led to the

Court of Criminal Appeal decision and rather than me get

too far into the material, it may be appropriate if

perhaps Mr Lessur-Millar indicates what his current

intentions are with regard to this matter.

MASON CJ: Yes. Yes, Mr Millar?
MR LESSUR-MILLAR:	Your Honours, I have taken all the steps

that I possibly can in acquiring counsel. I have

discussed this case with several lawyers here in Sydney
and there is no question as to whether there is merit
in it or not, it is a question of I am out of bail and

I am not permitted to either work nor to be on the dole and I have made application four times to the supreme

court for permission - variance of bail so that I could

go back to Mexico so I could work and earn money to hire

counsel. Those have been denied. I have made application

for legal aid and - - -

MASON CJ: That has been refused.

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MR LESSUR-MILLAR:  It has been denied, yes, Your Honour, and I

have appealled that decision based on, I think, a very

strong argument that there is profound merit in my case.

It is a matter that this honourable Court has never dealt

with or has settled the question of international

kidnappings and also the question on abuse of process.

MASON CJ: When did you appeal against the decision denying

you legal aid?

MR LESSUR-MILLAR:  On 17 November and as of this morning

they still have not set a date for the hearing on the

appeal.

MASON CJ: Has there been any indication when the matter would

be determined?

MR LESSUR-MILLAR:  No, Your Honour. They expect probably within

the next month. This delay - you know, I always have

the problem with the Crown accusing the applicant of

delays and I will give you an example of what a person

without counsel is up against. The supreme court - it

is the second time that I have appealled to that court -

had a statement or a decision prepared and they just

simply read it off and I had to wait something like

three months for that three or four pages to be typed

and then it went to another person in Legal Aid who took five-and-a-half months to make their decision and I have

almost lost another year of waiting for people to make

decisions that are based wholly on the fact that they are
of the opinion that I am not entitled to have counsel,
I guess, or I am not entitled to have my day in court.

The decisions are never strong, you know, to indicate that I do not have merit or that I am wasting my time or wasting the court's time and they are verramb:tguous, very

indefinite in that sense.and I am taking all the steps

that I possibly can. If I was not a pauper I can assure

tnis Court that I can walk down the street and I can find

counsel that will say to this Court that there certainly

is merit in my case but it-is a question of being a pauper.

I have not got the money to hire people. I have made a

petition that I tried filing with the Registrar here

the rule where the accused, the defendant, cannot	in Sydney where I was asking permission to set aside
represent himself in this Court and it was refused, and
then I took a step further and I mailed it to Canberra
and as I recall I addressed it to 'the Chief Justice and
Associate Justices" and the Deputy.-Regiatrar in Canberra returned-those papers to me saying that I should bring
it to the attention to the Registrar here, and this is
the type of catch-22 situation that I am always put in.

It is unbelievable, after everything that I have

gone through, where one minister in this government

tells me I cannot work; another minister tells me I cannot

go on the dole and then the highest court in the State

tells me I cannot go to my own country to earn a living

so that I can hire counsel; I can come back here and face

these charges, and on top of that it is an undisputed

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fact, and I think the Crown will admit, I have already

served more than enough time for the offences that I am

charged with and all these things combined are causing

a iot of stress on me.	I have difficulty just in
surviving here in Australia.	I need funds for housing

and for clothing, for food, and for just getting by

from day to day.

MASON CJ:  Now, Mr Millar, you appreciate, of course, that

the application must be presented by counsel under

rule 11 of Order 69A. Now, very considerable delay

has ensued since the case was first listed for trial.

Now, I am not suggesting that all that delay was

attribut~ble to you but it is necessary that the matter

be resolved in this Court and it seems that perhaps

the appropriate thing to do would be to fix your

application for special leave to appeal for hearing in

March of next year and we could list it also on a

Friday in February when the Court is sitting in

Sydney to ascertain what progress has been made in the meantime.

I think we can safely assume that the outcome

of your appeal against the refusal of legal aid will

have been determined by that time but we must face

up to the position that either you present your

application by counsel or you do not present it. In

other words, you need to, henceforth,,proceed on the
footing that your application for special leave to

appeal, if it is to be presented at all, will be

presented in March of next year.	It should not hang
fire any longer than that.

MR LESSUR-MILLAR:  Yes, Your Honour. When I sent my papers

to Canberra that I tried filing, the alternative that

I was asking,if I could represent myself and I

understand now clearly that I cannot, was if the

Court could appoint counsel - I do:not fully understand

how the Law Society works in this country but in Mexico,

my own country, when things of this nature arise the

court will appoint counsel and they are selected at

random on the basis that members of those law societies
have to do work without fees_	in some cases, you know,

two or three cases a year or something to that nature -

I do not know if that is possible in Australia or not because the longer this thing goes the more difficult

it becomes for me to - you know, I cannot present - - -

MASON CJ: Well, the only course I can suggest to you,

Mr Millar, is that in the event that your appeal is

refused, that is, the appeal against the refusal of

legal aid, that you might apply to the New South Wales

Bar Association to see if they would be prepared to assign a counsel to you. That is the only suggestion

I can make to you.

MR LESSUR-MILLAR: All right. Thank you, Your Honour.b

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MASON CJ:  But I think you need to take that up, really, as

soon as possible because it is no use coming along

to us at some later stage and saying, "Oh well, look,

I applied yesterday to the New South Wales Bar

Association for counsel to be assigned to me" and ask for an adjournment on the footing that that matter has

not been resolved. I need to make it plain to you

that the application for special leave will be listed

for hearing early in March - the date I have in mind

is 2 March - and that it will be necessary to resolve

the matter once and for all then.

Now, apart from that, what we propose to do is

list the matter for mention here in Sydney on Friday,

16 February. Now, you understand that if you have not

got counsel to present your application for special
leave to appeal on 2 March, the application will then

be dismissed.

MR LESSUR-MILLAR:	Yes, Your Honour.
MASON CJ:	You understand that?
MR LESSUR-MILLAR:	Yes, Your Honour, and I can assure the

Court that today I will make application to the

Bar Association to see if they will appoint someone.

MASON CJ: Yes, and I think you ought to follow up your appeal

and do what you can to ensure that an early decision

is given on your appeal.

MR LESSUR-MILLAR: Yes, I will do that, Your Honour.

MASON CJ:	Now, Mr Hastings, do you want to add anything?
MR HASTINGS:	No, Your Honour, only to say that the Crown

will persist as much as possible in at least

informing the Legal Aid Commissioner of the present

position of these proceedings.

MASON CJ: Yes, and you might also inform the Bar Association

of the discussion that has taken place here this

morning.

MR HASTINGS:  Yes, Your Honour.

MASON CJ: Yes, very well. Now, all that the Court needs to

do, Mr Millar, I think, is to fix 2 March as the date

for hearing of the special leave application and to

indicate that the matter will be listed for mention

in this Court on Friday, 16 February, and to repeat

what I have already said to you, that if the application
does not proceed with counsel presenting it on 2 March,

the application will be dismissed.

AT 10.50 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 16 FEBRUARY 1989

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