Lloyd v The Queen

[1992] HCATrans 296

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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 1 12/10/92

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 12 OCTOBER 1992, AT 10.01 AM

Copyright in the High Court of Australia

MR A.J. LLOYD: Sir, I represent myself.

HIS HONOUR:	Yes, Mr Lloyd.
MR LLOYD:	I would like to make application, sir, for the

issue of two subpoenae against two television

broadcasters in relation to an application for

special leave to appeal against my conviction which

is No P36 of 1991.

Sir, in my application for special leave to

appeal or, rather, if that application is

successful, my appeal is seeking a quashing of the

conviction and the entering of an acquittal. Sir,

one, among a number of considerations that I would

put forward in support of the entering of an

acquittal rather than the ordering of a retrial is

that the likelihood of a fair retrial has been

affected by the publicity around the time of my
first conviction and sentencing and, sir, in asking
the Court in due course to consider that issue, I
believe it is necessary for them to have access to

the publicity at that time.

Sir, Channel 7 and 9 broadcasters have

indicated that while they are willing to be

cooperative in providing me with the material they
had broadcast at the time, their company policy,
for obvious reasons, is that they will only release

information to people on subpoena and on that

basis, sir, I am stymied unless I can obtain such a

subpoena.

HIS HONOUR:  Now, the difficulty is, Mr Lloyd, that the

application P36 is an application for special leave

to appeal, do you understand?

MR LLOYD:	Yes, sir.
HIS HONOUR:	And no appeal will be heard until that matter

is disposed of. In one sense, therefore, perhaps

the application is premature, although I have a

note from the Registrar on the file which suggests

that there may have been some discussions between

yourself and the Director of Public Prosecutions.

Is that so?

MR LLOYD: Sir, I understand that the Director of Public

Prosecutions is not opposing either the application for special leave or, in fact, the quashing of the conviction on the hearing of the appeal but I

anticipate that he will be seeking a retrial.

HIS HONOUR:  Well now, if special leave were granted and an

appeal were allowed by consent, the ordinary order

that the Court would make would, of course, be a

Lloyd 2 12/10/92

remitting of the matter for retrial. It is open to
the Court to remit any question for determination

to the Court of Criminal Appeal of Western

Australia, and that might well be the more

convenient course for the Court to adopt if the
only issue outstanding is the question of whether

or not a retrial should be ordered. Is there any

purpose to be served, from your point of view, in

having a discussion with the Director of Public

Prosecutions to resolve the procedural mechanism by

which the issue can be determined?

MR LLOYD: Sir, there may well be.

HIS HONOUR: Well, in that event, it seems to me it would

probably be desirable for me to stand this matter

over to give you an opportunity to do so.

MR LLOYD:	Yes, sir.
HIS HONOUR:	Do you know whether it would be practicable if

I were to stand this over to 11.30 for you to

contact the Director of Public Prosecutions in the

meantime?

MR LLOYD:  Yes, sir, I will attempt to do that if you take

that course.

HIS HONOUR:  It seems to me, Mr Lloyd, that the Court is

unlikely to make both an order granting special

leave to appeal and allowing the appeal this week

unless it were by consent of the parties. It would

only be in that event, I should think, that the

Court would reach the stage of disposing of any

appeal if special leave were granted. So that it

seems to me to be a matter largely for the parties

to determine what course they desire to pursue.

MR LLOYD: Yes, sir. Could I ask a question whether - I had

been under the understanding and perhaps a

misapprehension that should only special leave to

appeal be granted this week that I still require to

put before the Court all the material by way of

affidavit or, in this case, by subpoena prior to

this time if it was to be considered at a later

date on the actual hearing of the appeal and, sir,

if I can await the resolution of the question of

special leave to the question of this issue of

subpoena, that would be suitable to me.

HIS HONOUR: Well, it may be suitable to you, Mr Lloyd, but

if the only issue outstanding which the parties had
not agreed on was the question of retrial or not,

then I think the Court would need to be apprised of

that fact. The ordinary practice of this Court is

certainly not to entertain on applications for

special leave to appeal or on appeal any contested

Lloyd 12/10/92

question of fact for determination by the Court and

it would be a most unusual course for the Court to

accept oral evidence or evidence in the way of

television films or documentary evidence, for that

matter, in order to determine any question of fact.
Questions of fact are usually left for
determination by other courts, this Court reserving

itself questions of law for determination.

I think perhaps, in the circumstances, I will

stand this application over until 11.30. You can

have a discussion in the meantime if you see fit

with the Director of Public Prosecutions. If any

satisfactory solution is reached, then you and

they, perhaps, could both appear at 11.30 and let

me know. Alternatively, you can review your

application at that hour.	So, I will adjourn this
matter now until 11.30 am.

AT 10.08 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.36 AM:

HIS HONOUR:  Yes, Mr Lloyd, well, how did you fare?

MR LLOYD: Sir, I have attempted to contact Mr McKechnie and

he is apparently unavailable and although I did

speak to one of his assistants, it was an assistant

that did not have knowledge of the case.

HIS HONOUR: Well, I will adjourn it until 9.30 tomorrow

morning if you wish and see if that gives you a

better opportunity of doing something, because the

question of issuing a subpoena really is a most

exceptional course; in fact, I do not know

if there is any provision for doing so in the rules

of this Court on an application for special leave

to appeal. But leaving the technicalities aside,

it seems to me that you would be well served by

trying to come to some clear understanding of what
the issues are between yourself and the Director of Public Prosecutions. So, I will adjourn the matter

until 9.30 tomorrow morning.

AT 11.37 AM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 13 OCTOBER 1992

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