Lloyd v The Queen

[1992] HCATrans 298

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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 issue of

subpoena

BRENNAN J

(In Chambers)

Lloyd 13/10/92

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 13 OCTOBER 1992, AT 9.31 AM

(Continued from 12/10/92)

Copyright in the High Court of Australia

HIS HONOUR:  Yes, Mr Lloyd, what is the situation? We have

another representative.

MR M. MISCHIN:  I represent the Crown, the respondent in

this matter, Your Honour. (instructed by the

Director of Public Prosecutions)

MR LLOYD: Sir, I had a discussion with Mr McKechnie and

Mr Mischin. Sir, it seems as though there is not

an agreement. It is the Crown's position, I think,

that the matter ought to be sent back to the trial

judge and these matters be dealt with by them.	But
perhaps, sir, it is more appropriate that
Mr Mischin outlines the Crown position.

HIS HONOUR:  Yes.

MR MISCHIN: That is so, Your Honour. Forgive me if I am

going over familiar ground, but the applicant was

charged on an indictment with a co-offender, one

Edwards, and his appeal has already been dealt with

by this Court and the order made there was that he

have a retrial. The accused, Edwards, was charged

with being knowingly concerned in the applicant's

breach of the Companies Code. In the

circumstances, the Crown would submit that the

appropriate order to be made by this Court would be

that leave be granted for the appeal and the Crown

has already indicated to the Court some time ago

that it will concede that the appeal should be

allowed for the reasons advanced in the matter of

Edwards and that the appropriate order would be

that a retrial be ordered in respect of the

applicant as well.

Now, that being so, what is foreshadowed at

this relatively late stage is that there should be

no retrial on the basis that there has been adverse

publicity which would prejudice a jury against the

applicant and a fair trial could not be had, if I

understand the submission. That, with respect, is

a matter that properly would fall within the

province of the trial judge and should be dealt

with by him and he or she should have the

opportunity to exercise his or her discretion in

respect of that matter after hearing the evidence.

It is not something that ought to trouble this

Court.

In essence, the Crown is of the view that the

appeal ought to be allowed but that the appropriate

order would be the same as for the accused,

Edwards:  a retrial should be ordered and the

applicant be at liberty then, when the District

Court is seized of the matter, to make whatever

application regarding a retrial that he thinks fit.

Lloyd 6 13/10/92

HIS HONOUR:  Mr Lloyd.

MR LLOYD: Sir, I would like, with respect, to indicate my

view that the Crown submission is misconceived.

Sir, my understanding of the position is that

appeal courts do have a discretion to either order

a retrial or not and the issues which are to be

considered are a broad range and it is in a sense a

balancing exercise and, sir, my understanding of
the issues to be considered are the seriousness or

otherwise of the alleged offence; the length,

complexity and expense of a retrial; the ordeal of

the defendant already suffered; the length of time

between the offence and a new trial; the strength

of the prosecution case, and the ability to secure

a fair new trial for the defendant and also the

time the defendant has already spent in prison.

Sir, it would seem to me that those issues are

not issues that are properly dealt with by a trial judge, only simply the question of the fairness of the retrial, and what the Crown is really

suggesting is that one issue of those be plucked

out and dealt with by a new trial judge and that an

appeal court put aside any question of an exercise

of that discretion.

I might just point out, sir, that the

relationship to Edwards is, with respect, a red

herring in that the circumstances of Mr Edwards and

myself are somewhat different, and I do not want to

canvass that now, but I do understand that this

particular issue was not argued by his counsel when

his appeal was heard by the Court.

So, sir, it seems to me that an appeal

tribunal should consider this question and, sir, I

see it as quite appropriate that this issue be

returned to the CCA as the body that, if it had not

made the decision to dismiss the appeal against

conviction in the first place, would have, in fact,

come to considering this question.

Sir, the alternative is that the High Court

itself consider the issue and the issues depend on

facts which need to be put before whichever court considers the exercise of the discretion and that

leads me, sir, to the need for the issue of

subpoenas, in fact, to gather the material.

HIS HONOUR:  Mr Lloyd, it seems to me that the easiest way

to deal with this is to adjourn the present

application until the matter comes on for hearing

before the Bench which is constituted to hear your

application for special leave to appeal. The

procedure that is then to be followed if special

leave to appeal is granted will be within the

Lloyd 7 13/10/92

control of that Bench and you could renew your

application at that time if you see fit to do so.

So, that will leave you with whatever remedies may

be available in the light of the procedure that is

then adopted.

In those circumstances, I do not propose to

make any order at this stage on Mr Lloyd's

application. I will simply adjourn the matter of

Mr Lloyd's application with liberty to Mr Lloyd to

renew that application before the Bench constituted

to hear the application for special leave to

appeal ..

AT 9.39 AM THE MATTER WAS ADJOURNED SINE DIE

Lloyd 13/10/92