Logan v McDonald

[1990] HCATrans 189

A -h, AUSTRALIA,14!- -~~~~._._

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A4 of 1990

B e t w e e n -

GARY LOGAN

Applicant

and

ALLEN MITCHELL McDONALD

Respondent

Application for special

leave to appeal

BRENNAN J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 23 AUGUST,1990, AT 11.00 AM

Copyright in the High Court of Australia

Logan 1 23/8/90

MRS. TILMOUTH, QC:  May it please the Court, I appear with

my learned friend, MR s. LINDSAY, for the applicant

in this case.	(instructed by Stuart Hamilton
Lindsay)

MR G. HACKETT-JONES, QC:  May it please the Court, I appear

· with my learned friend, MS A.V. McLEAN, for the

respondent. (instructed by the Crown Solicitor for

South Australia)

BRENNAN J: Yes, Mr Tilmouth.

MR TILMOUTH:  May it please Your Honours, the application in

this case concerns the validity of the rules of the

supreme court in its civil jurisdiction regulating

hearings in private, essentially between the

decisions of a single judge and the Full Court.

Your Honours, it is conceded for the purposes of

this application that the enabling power in the

Supreme Court Act is identical to the enabling

power which was considered by this Court in

Coulter's case. The enabling power in that case,

of course, coming from the Criminal Law

Consolidation Act.

It is conceded as well that, for current

purposes again, very much the same rules were made

under the enabling power, as in Coulter's case.

The basis of this application, Your Honours, is to distinguish Coulter's case and we purport to do so

on two bases.

TOOHEY J: Just before you take us to that distinction,

Mr Tilmouth, can we then forget about the

suggestion in the papers that a ground of special

leave might be the way in which the Full Court

dealt with an appeal from the summary jurisdiction?

MR TILMOUTH:  I beg your pardon, Your Honour, in what

respect?

TOOHEY J: Well, the relevant principles seem to have formed

part of the application for special leave.

MR TILMOUTH:  Oh yes. No, I accept that, Your Honours,

because there is some division about whether or not

an appeal is an appeal de novo or a strict appeal.

But for the purposes of this case the argument
would depend upon the construction of the witness,

Stavropoulous, it would not depend upon the

application of those principles. So I would accept

that that part of the special leave application is

of no relevance on the facts.

The basis of the distinction in Coulter, in

fact, Your Honours, is this: in Coulter's case,

Your Honours, there was an appeal on the grounds

Logan 2 23/8/90

that the verdict was unreasonable and

unsupportable, but also a ground of law. A single

judge refused leave on the first, but the second

went to the Court of Criminal Appeal because there
was a right for it to go there. At that time, when

oral argument ensued, the court, in open court, in

. the presence of the parties, gave reasons for dismissing the application for leave to appeal from the single judge. In this case, as Your Honours

will know from the appeal book, not only was the

hearing conducted in private, but the matter was

called on in the Full Court without notice to the
parties as well.

Our submission is that that compounds the

difficulties which were pointed to by the minority

judges in Coulter's case, of the very type of

provisions we have here. The ground of law on

which we seek to distinguish Coulter's case comes

from the statutory right of appeal in the

Justices Act, Your Honours, section 163, copies of

which I hand to Your Honours.

BRENNAN J:	Do you have copies of Coulter's case available?
MR TILMOUTH:	Yes we do as well, Your Honours.

Your Honours, just on Coulter's case, the passage I had in mind in making my last submission is at 371

in the minority judgment, at lines 30 to 35. The

policy consideration moving Their Honours there,

line 33:

it is inevitable that a refusal of leave will

be sometimes seen by an unsuccessful applicant as a decision to close the doors of the court.

in his face rather than as an examination and

reasoned rejection of his claim that he has

been the victim of a miscarriage of justice in

the court or courts below.

And all I was putting to Your Honours was that

situation is reinforced here when, unlike

Coulter's case, you not only have a hearing in

private but you have the matter dismissed

completely without the parties being aware of that

situation arising.

The Justices Act, Your Honours - and this is

the point of law in which we seek to distinguish

Coulter's case, comes from section 163, which is

the primary right of appeal from a magistrates

court, and it provides in subsection (1) that:

Except as provided in subsection {laa) of

this section, there shall be an appeal to the

Supreme Court from every conviction, order, and adjudication of a court of summary

Logan 23/8/90

jurisdiction (including a conviction of a

minor indictable offence, or an order

dismissing a complaint of a simple offence) -

et cetera. There is a proviso which is not

relevant. Your Honours, the words, "minor

indictable offence" there are important. This case involved an assault occasioning actual bodily harm,

which is a "minor indictable offence". The

significance of that definition is, one, it is the

more serious type of charges coming before summary

courts and, two, correlative with it there is a

right to elect for summary trial, or trial by jury.

It follows that when one looks at

subsection l(b), therefore, over the page, that the

policy in that subsection clearly seizes upon the

fact that those "minor indictable offences" are the

more important, being dealt with by summary courts.

It reads:

An appeal to the Supreme Court from any

conviction, sentence or order recorded,

imposed or made upon the hearing of

proceedings relating to a minor indictable

offence shall be heard and determined by the

Full Court unless the notice of appeal

contains a request that the appeal be heard

and determined by a single judge of the

Supreme Court.

Now, Your Honours, what we submit is that that

subsection gives a right of access to the

Full Court. Now, it is true that it also enables

an appellant to elect for a hearing before a single

judge. We would submit, however, that that

election - which, incidentally, was made in this

case, Your Honours, that much is clear although it

may not be clear on Your Honours' papers - only

in any event.

foregoes the right to go directly to the there

More than that, our submission would be that,

rules of court which seek to impose between the

decision of a single judge and the Full Court

relating to a minor indictable offence, requiring

leave to be granted, would be contrary to that
subsection. And, Your Honours, that is the high

point of our application; that is the best that can be said of the application distinguishing Coulter's

case on grounds of law.	Your Honours, I
should - - -

BRENNAN J:  Do you have a right of appeal, and there is no

question of a discretionary refusal?

Logan	4	23/8/90
MR TILMOUTH:	That is right.	The intrusion of the leave to

appeal is unwarranted by virtue of that subsection,

that is the point.

McHUGH J: But it might be said that 163(lb) is right

against you in the sense that it indicates that
there is to be no further right of appeal to the

Full Court whether by leave or otherwise,

~articularly (le), which says that:

A request that an appeal by heard by a

single judge ..... shall not derogate from the

power of a judge to refer an appeal to the

Full Court for hearing and determination.

MR TILMOUTH: Well, with respect, I concede that argument,

but there are arguments all ways on that. One

might argue that in (le) the omission of appeals in

the cases of minor indictable offences is an

indication that it was not intended to touch that

subject-matter and ironically that subsection as

well does not touch at all the power to state a

case. There is a twin power in the Supreme Court

Act to state a case or refer questions and,

ironically, the subject-matter of (le) is very
limited indeed, and our argument would be although

we concede prima facie, with respect, Your Honour's

point, expressio unius, as it were, the omission of

the other avenues reinforces the argument we have.

Your Honours, I must add, however, there is a

strong argument against what we put because of

another provision in the Supreme Court Act, but we

would submit that this is an argument which goes to

the merits ·and not as to the grant of special

leave. Could I hand up to Your Honours a copy of

Supreme Court Act, section 50, which does deal with

the subject-matter of justices appeals?

Your Honours, in section 50 Your Honours will see

the opening words, which are not relevant, deal
generally with appeals to the Full Court and then

there is a long proviso:

Provided that -

(1) No appeal shall lie from -

and then in subsection (3):

No appeal shall lie without leave of the judge

or of the Full Court from -

(a) any order upon appeal from a court of

summary jurisdiction under the Justices Act.

Now, on one reading, of course, that might

completely undermine our argument altogether. On

Logan 5 23/8/90

another reading, and the reading we urge upon the Court, that provision does not affect the primary

right to go to the Full Court anyway, where there

is a minor indictable offence. A proper reading of

that, either alone or read with the Justices Act
subsection, would limit the affect of that to

appeals from Justices Act in other than minor

indictable offences.

TOOHEY J: Well, where is the right to go to the Full Court,

Mr Tilmouth?

MR TILMOUTH:  It is in section 50 of the Supreme Court Act:

Subject to the rules of court an appeal

shall lie to the Full Court against every

judgment -

et cetera, of a single judge, in effect.

McHUGH J:  I do not see subsection (3)(a) being against you

because it is dealing with the general provisions;

it is a general statute. Section 163 deals with a

specific case of minor indictable offences.

MR TILMOUTH:  Yes. I was about to make that in what was my

last point, Your Honours. I would submit there is

an interesting question if it is sought to elevate

that Supreme Court Act provision as being against

or inconsistent with the Justices Act provision.

But this is a general Act and on the general rules

of construction a more specific Act overrides the

general. But that would be an argument I would

submit on the merits. But, Your Honours, that,

with respect, is the point. It comes back to

section 163(lb).

McHUGH J: But I still have not seen the way you distinguish

Coulter.

MR TILMOUTH: Well, there was no such provision in Coulter's

case at all, like section 163(1b). The right to go

to the Court of Criminal Appeal in Coulter's case

was granted by the Criminal Law Consolidation Act.

That Act clearly made a distinction between appeals

as of right on grounds of law alone; appeals by
leave on grounds of mixed law and fact, and appeals
by leave on questions of sentence. The question
which leave was required in Coulter's case was the
unreasonable and unsafe verdict, where the primary
statute granting the power always required,

originally, that leave be given. In this case the

primary right to get to appeal gives you the right

to go to the Full Court.

TOOHEY J:  I am having difficulty with that proposition.

Does it involve reading section 163(lb) as giving

Logan 6 23/8/90

.an appellant an opportunity to elect and, having

elected, and the appeal to a single judge having

failed, thereafter to go to the Full Court?

MR TILMOUTH: Well, that is the other view, with respect,

Your Honours. There are two readings of that

section in fairness. One is, you have a right to

go to the Full Court and if you elect to go to a
single judge first you simply waive your right to

go there directly but not your right to get there

ultimately. On the other view, of course, it might

be argued that, once you elect to go before a

single judge, then you take your rights of appeal

as they come from the single judge to the Full

Court, which includes the obligation to grant

special leave.

But my submission would be that, unless this

Court was plainly of the view that the latter

construction was the only one that was available,

those two contending views would be the essential

question which make up the special leave point.

BRENNAN J:  Mr Tilmouth, if one looks at 163(1) there is a

right of appeal there conferred from a court of

summary jurisdiction to another court, namely, the

Supreme Court.

MR TILMOUTH:	Yes.
BRENNAN J:	Now, of course, the supreme court can exercise

its jurisdiction, either by a single judge sitting in court; a single judge sitting in chambers, or a

full bench. So we come down to 163(1b) and we see
that this right of appeal to the supreme court as

an entirety is to be:

determined by the Full Court unless -

well then, having been determined by a single

judge, 163(1) is exhausted.

MR TILMOUTH: Well, with respect, in my submission, it is

exhausted only to the extent that you have

exercised an option to go to a single judge

first - - -

BRENNAN J:	To go to a supreme court.
MR TILMOUTH:	To go the supreme court. Your Honours, there

has never ever been a suggestion that if you elect

to go the supreme court to a single judge that you

have then exhausted or spent all your rights of

appeal.

BRENNAN J: Well, put it to the test. Let us assume that

there was no section 50 in the Supreme Court Act,

Logan 23/8/90

whence would you derive a right of appeal from the

order made by a single judge under 163(1b) of the Justices Act?

MR TILMOUTH:  Well, it would depend on how the section would

be read. Of course, the jurisdiction of the

supreme court here is a creature of statute and I

aecept entirely that that is the only foundation aside from the Supreme Court Act. My submission

would be that if, under that provision - even

giving the word "unless" its full weight - you

elected to go before a single judge you,

nevertheless, have preserved in that provision the

right to go to the Full Court.	In other words, the
greater includes the lesser.

The point I am making is you waive only a

procedural right, not your substantive right, to

get to the Full Court in the end result.

BRENNAN J: But your substantive right is a right of appeal,

not to get to a court in any relevant sense.

MR TILMOUTH:  No, with respect. A substantive right is the

right to appeal to the Full Court, in my

submission.

TOOHEY J:  But there would not be anything surprising about

the opposite consequence. There are jurisdictions

where the order nisi procedure operates where once

the matter goes before a single judge, and if the
judge does not refer the matter to the Full Court,

that is the end of the matter. The only step

thereafter is an application for special leave to

this Court.

MR TILMOUTH:  Yes, the rules in South Australia are a little

bit different in that subject-matter, but I accept

there are -

TOOHEY J:  I was not thinking of rules,· I was thinking of

statutory provisions.

MR TILMOUTH:  Yes. I accept that there are other akin

provisions, but the point here is, Your Honours,

that the reason why I emphasize the question of

"minor indictable offence" was that they are the

more serious dealt with courts of summary

jurisdiction and with the election to be tried

summarily you waive the right to trial by jury.

The policy, therefore, in subsection (lb) is to

give you a rather fuller right, as it were, from

those more serious matters and, in my submission,

to read it as depriving you of the right to go to
the Full Court on such serious matters if you

happen, by procedural means, to elect for a single

Logan 23/8/90

judg.e, in my submission, is to read it down far too

much.

But, Your Honours, those other matters are

matters of merits. My submission is that clearly

the matter is arguable on the basis of this

subsection and I would submit that that argument is

a-proper basis for the grant of special leave. If

the Court pleases.

BRENNAN J: We need not trouble you, Mr Jones. In the view

of the Court the argument advanced by counsel for

the application on section 163 of the Justices Act

and section 50 of the Supreme Court Act are not

truly arguable and, accordingly, the grant of

special leave will be refused.

AT 11.21 AM THE MATTER WAS ADJOURNED SINE DIE

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