Lloyd v The Queen

[1992] HCATrans 304

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P36 of 1991

B e t w e e n -

ANTHONY JAMES LLOYD

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

TOOHEY J

GAUDRON J

Lloyd(2) 1 15/10/92

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY. 15 OCTOBER 1992, AT 4.07 PM

Copyright in the High Court of Australia

MR A.J. LLOYD:  Your Honours, I seek leave to represent

myself in this matter.

BRENNAN J:  You have nothing to say about that,

Mr McKechnie?

MR MCKECHNIE:  No, Your Honour.

BRENNAN J: Yes, you shall have leave to represent yourself,

Mr Lloyd.

MR J.R.McKECHNIE. QC: Your Honours, I appear with my

learned friend, MR M. MISCHIN, for the respondent.

(instructed by the Director of Public Prosecutions

of Western Australia)

MR LLOYD:  Thank you, Your Honours. I have the precedent

cases.

MR McKECHNIE:  I wonder, Your Honour, before Mr Lloyd

commences, I could advise Your Honours that as this

appeal raises precisely the same questions that

were determined in the matter of Edwards v Reg,
107 ALR 190 and at 66 ALJR 394, the Crown as

foreshadowed earlier would concede that this would

be a proper matter in which to grant special leave

and would concede that an appeal, as it raises

exactly the same points, must succeed and be

allowed, and the Crown would simply ask for the

orders that were given in Edwards case, namely,

that the appeal be allowed, the conviction be

quashed and that there be an order for a retrial.

I mention that now, Your Honour, in case it may

assist and save time.

BRENNAN J: Thank you, Mr McKechnie. Mr Lloyd, if special

leave is to be granted then, the question would be

whether there should be anything other than the

order which the Crown is prepared to consent to.

MR LLOYD:  Yes, Your Honours. I did anticipate the Crown's

position on that. Your Honours, if the guilty

verdict is to be set aside, my understanding of the

law is that the Appeal Court has the discretion to

either direct an acquittal or order a new trial

and - - -

BRENNAN J:  You understand that the order that was made in

Mr Edwards' case was for a retrial?

MR LLOYD:  Yes, I do understand that.

BRENNAN J: So the problem is, why should there be any

different order in your case?

Lloyd(2) 2 15/10/92

MR LLOYD:  I think, Your Honours, that the position of

Mr Edwards and myself can be distinguished on those

issues that - on the factors that are relevant to

the exercise of the discretion in certainly one

particular case, but I do not think in fact it is

necessary to distinguish them because, as I

understand it, the counsel for Edwards did not

present an argument to the court in favour of an

acquittal. That is as I understand it from the

solicitor for Mr Edwards.

In any case, there are differences between our

positions. Your Honour, the particular cases that

I would like to refer to in relation to the

question of the exercise of discretion are Rabey v

Reg - - -

BRENNAN J: Perhaps you can tell us what other grounds on which, in your submission, this Court should, if

special leave were granted, exercise its discretion

against the ordering of a retrial?

MR LLOYD:  The grounds I suggest are the seriousness of the

alleged offence; the length, complexity and expense

of a retrial; and I might say, Your Honours, that

although the actual trial took place over only four

days, a number of new matters have been brought

into the open during the current Royal Commission
in Western Australia and I would expect that any

retrial would be substantially longer.

The third factor, the direct and indirect

penalties already suffered by the defendant. In

this particular case, Your Honours, I spent just

over three weeks in prison and that, in fact, is a

distinction between myself and Mr Edwards, who was

not sentenced to a term of imprisonment and I might

say that that particular matter - I was released in

fact on an appeal to the Court of Criminal Appeal

and the Court of Criminal Appeal resolved the issue

this as a matter for which no custodial sentence	in that the sentencing judge erred in not regarding
was required. In that case, Your Honour, that is a
penalty that has been suffered and cannot be
expunged if there were a retrial.

The further area in this is that under

section 229 of the corporation law there is a

prohibition on people such as myself from taking
part, either directly or indirectly, in the

management of a company or acting as an officer or

director of a company and that impacts severely in

my particular case because it is an area of

employment which is probably the only one that

would otherwise be open to me in my current

circumstances. It is a penalty that applies for

five years from the point of conviction and it is

Lloyd(2) 15/10/92

not something - it is a statutory requirement and
not something that, if I were to be retried again,

a trial judge could take into account and diminish

in any way and take into account the period of

prohibition already served.

I might point out, in the case of Mr Edwards,

while he has suffered the same restrictions, his

profession is somewhat different to my own and in

fact has resided overseas during most of the period

since that conviction and therefore the penalty has

not had the same effect on him.

The further factor which the authorities

suggest should be taken into account is the length

of time between the offence and a new trial and the

likely effect of this upon the memories of the

witnesses, and I would, if special leave were

granted, draw the attention of the Court to the

differences between the various parties to their

recollection of critical events and I would wish to

be able to demonstrate that the time that will pass

from the end of 1988 - - -

GAUDRON J:  Mr Lloyd, I am having some difficulty with the nature of the application you are making. I assume

that the application is that you should be granted

special leave to appeal from the decision of the

Court of Criminal Appeal, designed to show that the

Court of Criminal Appeal should, amongst other

things, have made an order quashing your

conviction. It does not seem to me that the matter

that you are seeking to agitate can come before

this Court other than as an application which goes

to saying that the Court of Criminal Appeal itself

should have made this order.

MR LLOYD:  Your Honour, I have to say that I understood that

this Court, in considering the question of quashing

the conviction, having decided to quash a

conviction, could then decide whether or not to

enter an acquittal.

GAUDRON J: Yes, but only on the basis that that is what

sits as an appellate court, not as an independent body, as it were.

should have been done by the Court of Criminal

MR LLOYD:  Very well, Your Honour. I have had it put to me

in the last few days that the proper approach would

be for this Cotirt to remit that question to the

Court of Criminal Appeal because the Court of

Criminal Appeal, if it had had the benefit of, in

particular, the Chew judgment, would have come to

this question having decided to quash the

conviction. Does that assist Your Honour?

Lloyd(2) 4 15/10/92

BRENNAN J: What Her Honour is putting to you, as I

understand it, is this, Mr Lloyd: you have an

application here for special leave to appeal; this

Court, if special leave were granted, can make an

order which the Court of Criminal Appeal should

have made if it had applied the Chew and Edwards

judgments; that being so, your special leave

application is virtually limited to what order

should have been made consequential upon the

following of the Chew and Edwards judgments, and

the question is whether we should grant you special

leave for that purpose.

MR LLOYD:  Yes, Your Honour. I can understand that, but

what confuses me is that if the Court of Criminal

Appeal had - - -

BRENNAN J:  Mr Lloyd, we wish to ask Mr McKechnie a

question. Mr McKechnie, what would be the Crown's

attitude to an order by consent granting special

leave to appeal, allowing the appeal, setting aside
the conviction, and remitting the question of
retrial to the Court of Criminal Appeal for further

consideration?

MR McKECHNIE:  I-can see some sense in that, Your Honour. I

wonder if I could just consider it for a moment. I

consider it in this background, that here we have a

situation where a notional Court of Criminal

Appeal, as it were, sitting the day after the

decision would, following the decisions in Lloyd

and Edwards, presumably have followed the High

Court decision and ordered a retrial. But I wonder

if I could just consider it for a moment,

Your Honour, before I answer.

BRENNAN J: It is just that it seems to me that a lot of

issues which, no doubt, Mr Lloyd wishes to raise,

this Court is simply not suited to consider.

MR McKECHNIE:  Yes, I appreciate that point, Your Honour. I

will just consider it, if I may, for a second.

BRENNAN J: Yes.

MR McKECHNIE:  Your Honour, bearing in mind that Mr Lloyd

asserts that there are factors that were different
in his case to those of Edwards, I would be

prepared in that case to consent to an order that it be remitted to the Court of Criminal Appeal to

deal with the question whether there should be a

retrial.

TOOHEY J:  But it is clear that you would be consenting to

an order that the appeal be allowed and the

conviction quashed, Mr McKechnie?

Lloyd(2)	15/10/92
MR MCKECHNIE:	Yes, Your Honour.
TOOHEY J:	So there would be a period of time during which

there would be no conviction and the outcome would depend upon whatever order is made by the Court of

Criminal Appeal.

MR McKECHNIE:  I appreciate the problems that are inherent

in that but I am prepared to accept it because it

seems to me that, although I might say the Crown

would-oppose the application in the Court of

Crimina_l Appeal, I can see there are matters which

ought to be fairly agitated by the applicant and

that the Court of Criminal Appeal would be more

appropriate to deal with them.

BRENNAN J: Well, Mr Lloyd, what do you say about that?

MR LLOYD:  Yes, I would consent to such an order,

Your Honours.

BRENNAN J:  Mr Lloyd, there are two formal matters that need

further consideration. You need, I think, an

extension of time in which to make your application

for special leave to appeal.	I take it you apply
for that extension of time?

MR LLOYD:  Yes, I do apply for that, for the reasons that

are set out in my affidavit.

BRENNAN J:  Do you have anything to say about that,

Mr McKechnie?

MR MCKECHNIE:  No, Your Honour.

BRENNAN J: The second question is, if your appeal is to be

allowed, after the granting of special leave, it

will be necessary for you to file a notice of

appeal. Do you undertake to do that?

MR LLOYD:  Yes, I do, Your Honour.

BRENNAN J: And that in the form of the draft which is

annexed to your material.

MR LLOYD:	Yes, I do.
BRENNAN J: Very well.	By consent, the application for

special leave	to appeal is granted and, subject to
the filing of	a notice of appeal by the applicant,
the appeal is	allowed. The order of the Court of

Lloyd(2) 6 15/10/92

Criminal Appeal is set aside and in lieu thereof

the appeal to that court is allowed, the conviction

is quashed and the question of the order to be made

consequent upon the quashing of the conviction is

remitted to the Court of Criminal Appeal for

further consideration.

AT 4.28 PM THE MATTER WAS ADJOURNED SINE DIE

Lloyd(2) 7 15/10/92