Maddocks v The Queen

[1999] HCATrans 320

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S8 of 1999

B e t w e e n -

JOHN DAVID MADDOCKS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1999, AT 10.51 AM

Copyright in the High Court of Australia

MR J.D. MADDOCKS appeared in person.

MR T.L. BUDDIN, SC:   May it please the Court, I appear, together with my learned friend, MR R.A. HULME, on behalf of the respondent.  (instructed by the Director of Public Prosecutions (New South Wales))

KIRBY J:   Yes, Mr Maddocks.  If you would come to the central stand there so that it can be recorded.

MR MADDOCKS:   I am obliged to your Honour.  Your Honour, shortly, the point in this is the clear conflict between the Privy Council in 1965 when it was the only occasion on which this point about the informant attending court was raised.  Soon after that in 1968, I think, the Supreme Court, the Full Court of the Supreme Court here, Mr Justice Herron, in particular, produced a judgment which has been followed in this State in at least three or four different cases which, in effect, says the informant does not need to attend court. 

Now, the practical importance of this is that it relates to practically every case in a Magistrate’s Court and has for many years, at least since the War.  Now, one cannot discover cases about the absence of somebody.  Nobody is concerned about the absence.  But the English cases up to that point are quite the reverse of this.  O’Toole’s Case in 1965 throws up the difference.

Now, the whole issue turns on one very slight point.  The word “absence” through illness which I will take your Honours to at a later stage is imported by his Honour the Chief Justice - - -

KIRBY J:   Your theory would mean that in every case the informant has to be present even though, in 90 per cent of cases, there is a plea of guilty.  That is the consequence.

MR MADDOCKS:   That is right, your Honour.

KIRBY J:   Well, just think of the millions of dollars that that would involve over the space of a year or so.

MR MADDOCKS:   Well, your Honour, there is another answer to that.

KIRBY J:   I mean, it may be what the law requires but it is certainly not something you would feel driven to by a strong sense of - - -

MR MADDOCKS:   That might be so, your Honour, but looking at the revenue – and this has happened before – there is no great loss of revenue involved, depending on how many cases are there.  But costs cannot be awarded where the informant is not represented and if the informant is represented by a solicitor or counsel, an order for costs would probably cover the expenses of the case which just does not happen now.  The expenses have to be carried by the police department who have, at least, one officer and maybe two or three in attendance relating to the day’s hearings of that court list.

In terms of revenue, the matter would be far more satisfactorily resolved for the Treasury if costs could be allowed.  There is a case that goes back before the First War which said you simply cannot have costs and that seems to be perfectly right in theory where an articled clerk was given permission to conduct a prosecution.

Now, your Honours, assuming that there is no diminution in revenue where orders for costs can be made, in fact, there is a considerable profit to be made that way.  The fact of the matter is that the appearance by counsel or attorney guarantees a great number of things which do not take place at present.  There have been three royal commissions that criticise the position of police prosecutors conducting the court and recommendations that this should be dispensed with.  In fact, over the last 20 years, I would think, nothing has happened as a result of these recommendations from royal commissions by very senior judges.

Now, plainly, without an informant present, there is nobody who has the responsibility of conducting – of carrying the instructions for the case.  Now, in the present system there is one informant that does most of the metropolitan area.  I understand that he has been to court twice in his life as a spectator.  Now, plainly, no one is going to order costs against him.  It just does not happen.  But the responsibility for whatever happens during the process of a hearing is with the sergeant prosecuting and he has no restrictions as to what he can do at all.  There is no Bar Association to attack his approach to cross‑examination and other matters.

The desirability of having someone responsible for the case, rather than just an administrative name on a form, is a matter of great importance, one would think.  It has been raised on many occasions and one does not ‑ ‑ ‑

KIRBY J:   It has, indeed, and decided by the courts of New South Wales, and it is a matter for the Executive Government and the Parliament of New South Wales to change the established law if it chooses to do so.  Hence the recommendations of royal commissions which have not yet found favour.  But your submissions do not draw to attention any significance of this matter for the practice of law in any other State of Australia.  On the face of the book, it appears to be just a New South Wales problem.

MR MADDOCKS:   Your Honour, quite simply, it turns on the question of whether an informant attends court and forgetting about the reasons why he should attend court, the fact of the matter is that the Privy Council says, yes, the New South Wales Full Court, since 1968/1969, that sort of time, has said, no.  A clear conflict.  Now, you could not possibly get a more direct – and the way it happened was by – the Privy Council, giving a number of examples of why a party might need assistance in court and one of those examples is illness.  Now, to illness is attached and added, in the judgment of Mr Justice Herron, the word “absence” through illness which changes the picture completely.  One word “absence” through illness to justify what is said in the Privy Council totally reverses the result.

I would suggest not only is it implicit but it is clearly said in the Privy Council that he would not be absent even though ill.  Now, it is as small a point as that.  Absence through illness is imported from nowhere.  Up to 1970 the suggestion of the informant being absent is never raised in any case.  Now, there are many cases on the right of audience, and all of the cases mention it – O’Toole Case, and in that matter the Solicitor-General for New South Wales paraded all the cases, and there are many of them, which justify the appearance of counsel or solicitor for an informant in any circumstances.

This is not what this matter is about. The specific wording of the Privy Council judgment says that it is a different matter. One deals with the old section 12 of the Justices Act of 1850 in New South Wales, and the other is a different section.  Just to quote very shortly the short words of the Judicial Committee - - -

KIRBY J:   This is in O’Toole v Scott?

MR MADDOCKS:   Yes, your Honour.

KIRBY J:   I notice that you were junior counsel to Mr Holmes there.

MR MADDOCKS:   Yes, your Honour.

KIRBY J:   That must have been a great experience to be with Mr Holmes.  He was a fine counsel and judge.

MR MADDOCKS:   Yes, your Honour.

KIRBY J:   Anyway, you were going to quote what their Lordships said.

MR MADDOCKS:   Your Honour, by way of explanation, I might just point out that the question of the informant’s attendance at court was never raised in O’Toole’s Case, never mentioned; had never been mentioned until it came before the New South Wales Court of Appeal of which Mr Justice Herron, Mr Justice Sugerman and I forget the third member of the court.  I do not think there was a third judgment.

KIRBY J:   Their Lordships, in their judgment, said that it was up to a magistrate to exercise his or her discretionary power to allow a person not being the informant or the informant’s counsel or attorney to conduct the case for the informant.

MR MADDOCKS:   Yes, your Honour.  There are half a dozen different expressions, quite different expressions, all supposed to mean the same thing, but there is no distinction between “party present at court” or “party not present at court” in all of those decisions.  There is no point saying “appear for” or “represent” or any number of other expressions used through the cases.  None of them deals with the question of the presence of the informant.  Now, the Act specifically said that in 1848 in England and it still says it in Sydney this year.  Now, if it were not to mean anything, it would not be there.  But the gloss on O’Toole’s Case, which comes from the Full Court here, simply by adding the word “absence” through illness.

Now, his Lordship Lord Pearson deals with these matters of why a party may be allowed to have assistance in the court, and I would suggest I read all of these with the emphasis on “present in the court”, and the reason:

some of them might be deaf or dumb, suffering from impediments of speech, illiterate, suffering from illness or otherwise incapable of conducting a defence or a prosecution. 

All of those reasons which Lord Pearson uses to justify a magistrate allowing assistance to a party are - - -

KIRBY J:   I notice that their Lordships, in dismissing the appeal, made reference to the law in South Australia and in England but you have not done anything like that to indicate that the point that you are seeking to raise before this Court is a matter which is of any significance, even assuming that you have an arguable point, to any other part of Australia and normally such matters would be left entirely to the intermediate appellate courts of the jurisdiction concerned; in this case, the Court of Criminal Appeal of New South Wales.

MR MADDOCKS:   I think, as a matter of practice, your Honour, it is different in many of the States, one from the next.

KIRBY J:   That is so.  Well, why we would want to interfere in a matter which has been passed upon and, one might say, passed upon and re-passed upon by the courts of New South Wales?  It is a local concern, not a matter of Australia-wide concern.

MR MADDOCKS:   Your Honour, it has to follow – it has to demonstrate whether New South Wales is obliged to follow the Privy Council in a clear case; whether all that has gone.  This Court must be the court to arbitrate on that at this time.  It must also be a matter of some importance in relation to the constitutional changes which may or may not occur fairly soon.

If this Court has no interest – and I say “interest” in the broad sense – in a matter of whether or not the Privy Council is to control State courts, then all the decisions of many, many years simply go out the window.  You are left with a lottery.  Will the English decisions be followed or not?

KIRBY J:   I do not think you can assume that.  The Court, I think, has held that decisions of the Privy Council, in Australian appeals, will, until reversed by this Court, be still part of the law in Australia, but the question is what the Privy Council held.  My reading of O’Toole is to the effect that their Lordships held that it was for the magistrate, exercising summary jurisdiction, to exercise their discretion to determine who should or should  not appear, and they did that and that is what they did in your case.

MR MADDOCKS:   Your Honour, that is the case - - -

KIRBY J:   You object to police prosecutors and I am fully alive to the fact that there is a controversy about that but that is not a matter that this Court can - - -

MR MADDOCKS:   With great respect, that is not the point of the matter. Section 12 is what is dealt with in O’Toole.  Section 13 is what this case is about and Lord Pearson says it is a different matter.  Lord Pearson says, particularly:

Section 13, however, is dealing with a different subject, namely, the need for a party, if not represented by counsel or attorney, to be present when his case is called on.

Now, that is the English interpretation and application of section 13 of the old Act and it is the reverse of the effect that is sought to be attached to section 12 by saying there is a discretion to permit someone to do it.

HAYNE J:   Do you say that his Lordship was there doing more than identifying the subject matter of section 13, his Lordship was going on to say, “Not only is this the subject matter but the subject matter is dealt with by requiring attendance.”?

MR MADDOCKS:   Yes, your Honour.  It may be that what his Lordship said does not bind O’Toole’s Case, particularly, it is not the ratio, but it is a very clear indication of what would be, had the point of non-attendance been taken, and there is no case - - -

KIRBY J:   Yes, but as you, yourself, pointed out, that is not the issue that was before the Privy Council in O’Toole.

MR MADDOCKS:   That is right, your Honour, that is exactly right.

KIRBY J:   So, there is no binding principle of the Privy Council which has to be applied by Australian courts and therefore it is a question of construing the legislation and, having regard to the practices in this State, you have not drawn attention to any other law or practice in any other State and the highest court, highest relevant court of this State has passed on the matter.  It does not seem to be a matter that attracts special leave, according to ordinary principles.

MR MADDOCKS:   Your Honour, in a matter of such wide general application, if the judgment of the Court of Appeal in New South Wales, in construing an English decision, is demonstrably wrong, I would suggest, with respect, this Court has an obligation to deal with it.

KIRBY J:   Well, the answer to that is we do not have an obligation.  You have an obligation to try to get special leave and to do that you have to establish a number of matters which, relevantly, would in this case suggest that you seek to demonstrate, as apparently was done by Mr Holmes – because it was not just South Australia.  Looking through O’Toole, I can see that Victorian and Western Australian statutes were also referred to, as well as New South Wales and England.  But, here, we have just got the Justices Act 1902 (NSW) referred to and a local decision of the highest court of this State dealing with the practice in this State. It is just not a matter which would appear to require the resolution of a national court.

MR MADDOCKS:   And, your Honour, there are no other cases dealing with that point, the section 13 point of the old Act.  No cases can be discovered dealing with the absence of a party.  They simply do not touch it.  For that reason alone and the widespread general application, I would suggest it should attract the attention of this Court where there is

demonstrably a doubt about it, whichever way the doubt might be resolved.  But one cannot avoid the misconstruction by the State court and then come to the conclusion that it is matter of not sufficient wide general application because it is only New South Wales.  Now, with great respect, that is hardly a position one should be supporting.

KIRBY J:   Well, this Court has to conserve its appellate jurisdiction and the considerations which the Court has to take into account and which it normally takes into account are those which are set out in the Judiciary Act and in the decisions of the Court.  So that we just cannot take on every appeal from every intermediate appellate court of the nation.  That is why there is the procedure of special leave.

MR MADDOCKS:   Your Honour, there are two things to say in answer to that.  Once upon a time, and I am not sure whether it was 10 years back or 20 years back - - -

KIRBY J:   Things were different in the old days, Mr Maddocks.

MR MADDOCKS:   - - - the High Court Rules dealt with wide general application.  It was a big factor.  The other thing I would say is in O’Toole’s Case, the five Law Lords were tied up, one might say, for the best part of two days, over a £2 fine.  Now, the issue of controlling Magistrate’s Court was seen sufficiently important to attract leave in that matter.  I would think this is equally important here for New South Wales, and now that this Court is the final arbiter on the issue, this Court, I would suggest, might well deal with it.  Thank you.

KIRBY J:   Thank you very much.  The Court does not need your assistance, Mr Buddin.

This application is said to turn on the construction of certain provisions of the Justices Act 1902 (NSW). Those provisions govern the practice and procedure of the Local Court of New South Wales when dealing summarily with a traffic offence. Further questions may well intrude because of the intervention of the applicant’s appeal from the Local Court to the District Court of New South Wales. Prima facie, the questions which have been identified in the application are questions to be resolved by the courts of New South Wales. In any event, we are not persuaded that the proposed appeal has sufficient prospects of success to warrant the grant of special leave. Accordingly, special leave is refused.

You do not seek costs, do you?

MR BUDDIN:   We do not seek costs.

KIRBY J:   Special leave is refused.

AT 11.11 AM THE MATTER WAS CONCLUDED