Maddocks v Director of Public Prosecutions

[1998] HCATrans 325

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S10 of 1998

B e t w e e n -

JOHN DAVID MADDOCKS

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS and THE JUDGE OF THE DISTRICT COURT CRIMINAL AND SPECIAL JURISDICTION

Respondents

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 1998, AT 10.22 AM

Copyright in the High Court of Australia

MR J.D. MADDOCKS appeared in person.

MR G.S. HOSKING, SC:  If your Honours please, I appear with my learned friend, MR A.M. BLACKMORE, for the first respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GAUDRON J:   Thank you, Mr Hosking.  The Principal Registrar certifies that she has been informed by the second respondent in this matter that the second respondent does not wish to be represented at today’s hearing for special leave to appeal and will submit to any order of the Court save as to costs.

Yes, Mr Maddocks.

MR MADDOCKS:   Your Honour, today I am asking for an adjournment of this matter for this reason.  The main complaint in relation to denial of justice was that the District Court judge would not hear any evidence.  Now, we have since appealed to the State Full Court for prohibition in relation to that matter and a number of other peripheral matters were dealt with.  The end result was there is still not one word of evidence in relation to the facts in this matter.

Now, there are certain grounds for saying that an appeal might be successful, and that is very much might and might not.  But let it be assumed that the appeal were entirely successful on the points that are taken in the application.  There is still no evidence at all of what should have happened in the court, what the case was about.

GAUDRON J:   But are we not concerned simply with the decision of the Court of Appeal on certiorari?

MR MADDOCKS:   Yes, your Honour.  Those matters must be dealt with. 

GAUDRON J:   But that is what your application is from today?

MR MADDOCKS:   Yes, your Honour.  But if one gets into a position of being successful on that application, the practical position surely is, well, even though you were not heard by the judge in the District Court ‑ ‑ ‑

GAUDRON J:   If you were successful in your application, certiorari would be granted to - not on your adjournment application but overall in your application for special leave to appeal, if you were successful certiorari would ultimately be granted, the decision would be quashed and you would start again.  That is when the evidence would be led, surely.

MR MADDOCKS:   With respect, your Honour, I do not think the start again position would arise.  But without getting into arguing that, if all the grounds for certiorari were there, the practical position is, all right, so you were not heard.  But what would have happened if you were heard?  And there is nothing to be said.  Now, for that reason, a parallel case between the same parties virtually on the same issues and everything else has been brought along over the last few months and a case has been stated by the District Court judge in the Court of Criminal Appeal only in the last week or two.

Now, it was thought that if the same - the issues that should have been dealt with, and that is as high as I can put it, the issues that should have been dealt with in this matter here were decided in the parallel case in favour of the appellant, then one can say that the District Court judge in the present matter here refused to hear what was in fact a successful appeal.  Now, that is a totally different position from the position we are in now.  That position would have been all right were it not for the fact that for the last 13 weeks the matter was before a District Court judge for the purpose of agreeing the stated case and it went nowhere for 13 weeks, until three minutes before 4 o’clock on a Friday some two weeks ago, I think.

Now, had we, in the ordinary course, got along to the position we should be in, then it must be a compelling argument in this case if the parallel case is successful in the Court of Criminal Appeal and one virtually says, that is what we would have done if the judge had not refused to hear us.

McHUGH J:   But where does that lead you?  The jurisprudence of this Court is that we do not admit fresh evidence here.  So you have to rely on the evidence that was before the Court of Appeal, Mr Maddocks.  You have had a vast experience in the courts; you have argued cases in every court from Petty Sessions to the Privy Council; vast experience.  Whatever happens in the collateral proceedings does not advance this case in any event.

MR MADDOCKS:   Might I say the practical argument which might be put before this Court at a later stage is, “We were stopped from running a successful appeal.”  Now, the Court of Criminal Appeal’s judgment settles that yes or no. 

McHUGH J:   I know, but in the exercise of their discretion Justice Priestley said there was no sign of you having had a defence to the allegations and that seemed to be the critical factor.  Now, it is a discretionary matter.  That being so, it is hardly a case for the grant of special leave.

MR MADDOCKS:   Assuming that were right, and we would have to get into the argument before we could accept that, the same issues having been decided by the Court of Criminal Appeal in favour of the appellant would make Mr Justice Priestley’s summary of what should have happened a little inappropriate.

McHUGH J:   But no, it would not.

MR MADDOCKS:   And it is not new evidence, your Honour.  We are not concerned about new evidence.  We just have an authority in our favour should the situation arise.

GAUDRON J:   In this Court we do not normally take decisions in parallel proceedings in the Court of Appeal as authority.

MR MADDOCKS:   One would not normally have a case come before this Court where there had not been one word of evidence taken.

GAUDRON J:   Can I take it - what precisely is your adjournment application?  Is it that the matter stand in the list pending the outcome of the proceedings in the Court of Appeal?

MR MADDOCKS:   In the Court of Criminal Appeal.  My position is this, that were we to succeed on the appeal against the Court of Appeal’s refusal of certiorari, we have still got nothing to say in practical terms that we had a successful appeal on foot.  But if there was a successful appeal on the same issues in the Court of Criminal Appeal within the next month or two - I do not know how long it would be - that must surely be compelling, without any further evidence; simply say this was a matter which was set up to deal with a successful appeal and the judge refused to hear it.

GAUDRON J:   Have you said all that you wish to say on the application for adjournment?

MR MADDOCKS:   Only one other matter, your Honour.  The big factor against us in the Court of Appeal was delay.  Now, that was regarded as absolute; the delay failed us totally, and there are a number of matters that should have been taken into account to balance against that delay.  I might say that the delay overall was less than half the responsibility of the appellant.  Now, away from that question, we are now again caught in the opposite situation with delay, where it has taken 13 weeks ‑ ‑ ‑

McHUGH J:   But, Mr Maddocks, you are only arguing the application for an adjournment.  You have 20 minutes on this, and you have taken up most of it on an application for an adjournment.

MR MADDOCKS:   Yes, your Honour.  The point is we were put down on delay on the one case.  We are prevented again by delay which is not our delay in having something to argue on this present application.  If we are granted an adjournment and the other matters are dealt with, we can come back and it will have resolved itself by that time.

GAUDRON J:   What do you say to the adjournment application, Mr Hosking.

MR HOSKING:   We oppose the application, if your Honours please.

GAUDRON J:   You simply oppose it.  You do not have ‑ ‑ ‑

MR HOSKING:   Your Honours, as your Honours have indicated - well, one reason we oppose it, your Honours, in terms of the parallel proceedings, if your Honours deal with this application now that may assist their Honours in what Mr Maddocks calls the parallel proceedings.  I do not know that there is much more I can say, your Honour.

GAUDRON J:   Mr Maddocks, we do not see that the parallel proceedings are of any relevance to the outcome of this application and we ask you to address your application, please.  Your application for an adjournment is refused.

MR MADDOCKS:   Your Honour, the best I can say is that there is no prospect of success on this application in the present situation and I do not propose to proceed with it.  I invite your Honours to allow me to withdraw.

McHUGH J:   That is very candid of you anyway, Mr Maddocks.

MR MADDOCKS:   Your Honour, it could hardly be a worse situation.

GAUDRON J:   You seek leave to withdraw your application?

MR MADDOCKS:   Yes, your Honour.

GAUDRON J:   Do you oppose that course, Mr Hosking?

MR HOSKING:   That would deny us our costs if the application was unsuccessful, your Honour.  We do not oppose it, your Honour.

GAUDRON J:   Leave is granted and the application is treated as withdrawn.

The Court will adjourn to reconstitute.

AT 10.33 AM THE MATTER WAS CONCLUDED