MAK v The Queen, MSK v The Queen

[2005] HCATrans 1

[2005] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S368 of 2004

B e t w e e n -

MAK

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S369 of 2004

B e t w e e n -

MSK

Applicant

and

THE QUEEN

Respondent

Applications for expedition

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JANUARY 2005, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR A.W. STREET, SC:   May it please the Court, in each of those matters I appear for the applicant.  (instructed by North & Badgery)

MR R.D. COGSWELL, SC:   In each of the matters, if it please the Court, I appear with my learned friend, MS A.M. MITCHELMORE, for the respondent.  (instructed by Director of Public Prosecutions (NSW))

HIS HONOUR:   Yes, Mr Street.

MR STREET:   If your Honour pleases.  In each matter, your Honour, there is a summons filed on 21 December seeking an order for expedition of an application for special leave to appeal.  Your Honour, the respective summons in each matter is supported by identical affidavits, and if I could just identify them for your Honour.

HIS HONOUR:   Yes, if you would identify them.

MR STREET:   Your Honour, the first affidavit is that of John North, sworn 21 December 2004.

HIS HONOUR:   Yes.

MR STREET:   The second affidavit by Mr North is sworn 23 December 2004.

HIS HONOUR:   Yes.  Is there any objection to those affidavits, Mr Cogswell?

MR COGSWELL:   No, your Honour, and nor any cross‑examination.

MR STREET:   Your Honour, there is a fourth affidavit that I refer to for completeness, and I do refer to it on this application, and that is one of 4 January, simply dealing with the issue of section 78B notices.

HIS HONOUR:   Yes, I have seen that.

MR STREET: Your Honour, can I indicate that the applicant would ask for this Court not only for an order for expedition, but would ask that the application be referred to the Full Court under section 18. I have foreshadowed that to my learned friend. Can I indicate to your Honour then the substance of the arguments relating to the issues that arise. Your Honour, there are three issues that are sought to be raised in the application for special leave. The first is one of ‑ ‑ ‑

HIS HONOUR:   Just let me clarify this.  You are asking me to refer ‑ ‑ ‑

MR STREET: Under section 18.

HIS HONOUR:    ‑ ‑ ‑the matter to the Full Court.

MR STREET:   Yes, your Honour.

HIS HONOUR:   Why would that not be a course appropriate to be adopted before the special leave Bench?

MR STREET:   Your Honour, I think on occasion special leave applications have been referred directly to the Full Court for determining whether special leave should be granted.

HIS HONOUR:   It is true, but normally by the Bench constituted to decide whether the matter is one appropriate for special leave, which is a power reserved to two Justices.  I am sitting here as a single Justice.

MR STREET:   Yes, your Honour.  Well, if I can come to the ‑ ‑ ‑

HIS HONOUR:   I do not have the power to grant special leave.

MR STREET:   Quite, your Honour.

HIS HONOUR:   That is reserved by the law to two Justices or more.

MR STREET: And, your Honour, I would not want it to be understood that I was seeking to suggest that that was what was being advanced. Under section 18 your Honour has the power to refer to the Full Court, we respectfully submit.

HIS HONOUR:   But that would be for a case – as for example the Communist Party Case, or a matter which was manifestly and known arguably a matter where the Full Court would eventually become involved and, therefore, would be appropriate to be involved at the earliest possible moment.

MR STREET:   I understand that, your Honour.

HIS HONOUR:   I am not at all convinced that this is such a case.  You have to first jump the hurdle of special leave.

MR STREET:   Unquestionably so.

HIS HONOUR:   It would seem to me that that second application is one appropriate to be made when, and if, you can persuade a Court properly constituted to grant special leave.

MR STREET:   Your Honour, I understand that and I will come back to it if I may.  Your Honour, having identified the nature of the issues that we seek to agitate on the summons, the nature of the subject matter of the application for special leave involves three issues ‑ your Honour will have seen the first issue.  There is a contention of incompatible function being vested in the Supreme Court of New South Wales, incompatible with the court vested with Chapter III federal jurisdiction.

Section 294A of the Criminal Procedure Act 1986 imposed a function on the Supreme Court hearing the trial to appoint a statutory examiner. That function, we say, is one which is incompatible with the maintenance of the standing of the court, given the nature of that executive function. It is one which, your Honour, is not the subject of any appellate right of review. It is a mandatory obligation. It requires the court hearing the trial to appoint someone in the face of the jury to conduct any asking of questions – not cross‑examination – that might be asked through that statutory examiner. In this case that is what Justice Sully did. He ordered, pursuant to section 294A, the appointment of a statutory examiner. No questions were asked by that statutory examiner. The unrepresented accused, in a trial in which identity was in issue, were deprived of the ability to cross‑examine, and we say that the nature of the function vested pursuant to section 294A is incompatible with a Chapter III vested federal jurisdiction court.

HIS HONOUR:   Can I just ask as to the time sequence?  How long before the conduct of the trial was the statutory examiner appointed?  In other words, how long did he have to prepare for the task of cross‑examination?

MR STREET:   Your Honour, it is a little bit more dramatic than that.  In this trial the respective applicants were self-represented.  They had been ‑ ‑ ‑

HIS HONOUR:   I realise that.  That was by their own election though, as I understand it.

MR STREET:   That is so, your Honour, but it would be odd that a decision such as Dietrich, which recognises a benefit should be somehow construed in a way as a foundation for asserting that unrepresented people have lost rights.  But, your Honour, putting that ‑ ‑ ‑

HIS HONOUR:   Well, my understanding – I once sat in a case in the Court of Criminal Appeal in New South Wales where we had to examine – I cannot remember the name of the case – but the principle in Dietrich, which holds that in certain circumstances trials will be stayed if legal representation is not granted, has a counterpoint and that is that you cannot normally oblige a person to be legally represented.  They have a right to represent themselves, and that is I think expressed in international human rights instruments.

MR STREET:   That is so, your Honour.

HIS HONOUR:   If that is what they want, then that is by our law their right.

MR STREET: And, your Honour, that is the reason why I touched upon it in passing. It would be odd – and it is the reasoning of the Court of Criminal Appeal in essence – that because there was an entitlement to have legal representation, that that is a foundation for the reasoning that section 294A, it is permissible to destroy the right to cross-examine when unrepresented, because in this trial the respective applicants exercised the right to cross‑examine all witnesses in the eyes of the jury until the respective complainants were called.

At that point the court, having no judicial discretion at all pursuant to the language of section 294A, appointed an examiner. That examiner was given no questions to ask, and no questions were asked. But in essence the unrepresented accused were put in a position where the court was giving its imprimatur, and it is the court itself hearing the trial, its imprimatur, to descending into the arena of a type of representation and imposing upon the respective accused an examiner, with all the consequences that that has with the court’s authority, in the eyes of the jury for these complainants - and, your Honour, I do not wish to expand upon the argument.

Your Honour touched upon the significance of the international jurisprudence in this area, and that is something we have covered, as your Honour may have seen in the detailed argument given by the applicant in support of the respective arguments, and including the appropriateness of that international jurisprudence being taken into account in the constitutional questions that have been identified.  Your Honour, can I come back then to the second question, which ‑ ‑ ‑

HIS HONOUR:   That was the subject of a small exchange between myself and Justice McHugh in Al-Kateb.

MR STREET:   Yes, your Honour, and it is one where we say that the significance of ‑ ‑ ‑

HIS HONOUR:   Small, but exciting.

MR STREET: Yes, your Honour. Well, we seek to maintain that excitement by raising it here. Your Honour, to the extent relevant the second issue which we seek to raise is one also of a constitutional nature and of considerable public importance. It is the contention of a constitutional right to a fair trial. The way in which we have framed it in the written submissions identifies it – whether it is described as a right to a fair trial or an implication of a restraint against an unfair trial, nonetheless, the character of the contention that we advance is that in this case the work done by section 294A was in essence to create a consequence which would be an unfair trial in relation to violating an inviolable feature of a fair trial. In our submissions we seek to develop that an inviolable feature of a fair trial of an unrepresented accused is the right to confront and test the evidence of the accuser.

Your Honour, that argument is developed in detail in the written submissions, and I do not seek to expand upon it further in identifying the nature of the issues.

HIS HONOUR:   Yes.

MR STREET: The third issue, your Honour, is not of a constitutional nature. It is a very brief issue. It arises under section 6(1) of the Criminal Appeal Act 1912 (NSW). It involves the contention that the court below failed to address the correct statutory criteria in determining whether or not there was a miscarriage of justice. In substance, the court below said because section 294A was a law passed by the government of the State of New South Wales, there was a trial ‑ ‑ ‑

HIS HONOUR:   Laws are not normally passed by the government.  They are passed by Parliament.

MR STREET:   Parliament.  Thank you, your Honour.  I apologise for that.  To the extent relevant that the provision in that regard was one which the court below said because there was a trial conducted according to law – and I leave that to come back to that phrase – there was no miscarriage of justice.  What the Court of Criminal Appeal failed to consider was whether the effect of 294A in the trial of the respective applicants constituted a miscarriage of justice.  That contention as to the effect is one which we say goes beyond simply looking at whether there was a trial “according to a statutory provision”.  So, your Honour, that is the third ground.

In relation to the two constitutional grounds, your Honour, the appropriate notices under section 78B have been served.  Your Honour, we respectfully submit that the respective points are within your Honour’s decision in Re Pinkstone, reasonably arguable for the purpose of considering whether or not it is an appropriate case for expedition.

Your Honour, the grounds that warrant expedition, if I could turn to those, are in substance these.  The issues raised by this application for special leave by each applicant are likely to arise, on the affidavit evidence that has been put before your Honour, in a forthcoming trial currently fixed to commence on 28 February.  That trial is a trial that involves the same provisions of the Crimes Act 1900 that give rise to application of section 294A. The respective applicants are unrepresented in the trial. The respective applicants have joint issue and anticipate having issue joined in that trial, and the witnesses involved are likely to be the subject of cross‑examination, including the relevant complainants. In those ‑ ‑ ‑

HIS HONOUR:   Are these the same complainants ‑ ‑ ‑

MR STREET:   No, your Honour.

HIS HONOUR:    ‑ ‑ ‑or different complainants?

MR STREET:   These are different complainants, your Honour.

HIS HONOUR:   But your point is that the same provisions of the Criminal Procedure Act would apply to this trial, is that it?

MR STREET:   Yes, your Honour, and therefore ‑ ‑ ‑

HIS HONOUR:   And you say your client should not be subjected to that procedure if it is constitutionally invalid?

MR STREET:   Quite so, and we say that the exceptional circumstances in this case that arise are that these are constitutionally invalid provisions that are likely to expose my client to the risk of a conviction, which carries with it the potential of life imprisonment.  So that, your Honour, we say it is a case in which there is a significant issue, which means that the constitutional issues are highly relevant to the pending trial.  That pending trial is one where both my learned friend and I – I think we were in a position when orders were made on 24 November to grant leave to file substituted process, neither my learned friend nor I were alert to the prospect of the forthcoming trial.  It was only recently that that came to our attention, and both my learned friend and I then accelerated the process, which your Honour will have seen, of both the filing of the applicants’ argument in each matter, the respondent’s argument and the argument in reply.  The submissions are all completed, and there are no further submissions to be filed. 

Your Honour, in support of the application that I seek to make for an order under section 18, could I briefly take your Honour to it?

HIS HONOUR:   Yes.

MR STREET: Your Honour, perhaps there is one thing I should say in passing. There is obviously some potential issue as to whether 78B applies to the application for special leave because of the definition of section 2 of “suit”, and for more abundant caution obviously we have taken the view of serving the relevant notices. Under section 18 your Honour does have a power, sitting alone in Chambers, to direct that a matter be argued before the Full Court. Your Honour, recently in a decision called Jarratt v Commissioner of Police for New South Wales, of which I think was the subject consideration by a Bench constituting I think more than one Justice but in a special leave application in Sydney on 10 December, the order that was made by the Court in that case was that the application for special leave be referred to the Full Court.

HIS HONOUR:   But that was made by a special leave panel of two Justices.  I think it was Justice McHugh and Justice Callinan.

MR STREET:   That is so, your Honour.

HIS HONOUR:   Because I was the third member of the panel, but was not sitting in that application so I am familiar with that.  That is not at all unusual.  I mean it is not usual, but it does happen from time to time that the special leave panel does not grant special leave but refers the question of whether special leave should be granted to a Full Court.

MR STREET:   Your Honour, properly so, and in this instance ‑ ‑ ‑

HIS HONOUR:   But that would have been done – I have not studied the transcript of Jarratt, but that would have been done because Justice McHugh and Justice Callinan would have formed the view that there were reasonable grounds of dealing with this matter before a Full Court.

MR STREET:   Yes, your Honour.  Well, the position we would have sought to take is this, your Honour.  We respectfully submit that the questions that are raised both in relation to the incompatible function vested in the Supreme Court, and the constitutional question in respect of the constitutional right to a fair trial, are matters of a constitutional nature of a general public importance, on their face of a kind that would meet the criteria under section 35A and of a kind that, without trying to argue the special leave application, that it would be appropriate in this exceptional case, where there is this pending trial and there are grounds for expedition, for the Court to take into account the public interest that would be served by it being dealt with expeditiously and being referred directly to the Full Court.

Your Honour, the power, we say, plainly arises under section 18, that it extends to criminal proceedings, I think was embraced by Justice Gaudron in a decision in which the issue was touched. So that the only question then is would it be in the interest of justice that your Honour exercise such a power to refer it.

Your Honour, in this case could I identify that the applicants’ position is this. On the argument for both special leave and the appeal, if they were listed at the same time, the applicant anticipates – leaving aside intervenors – that the matter would be a half‑day matter. On behalf of the applicants in each matter, I could indicate I would take no more, if permitted to go beyond the 20 minutes, I would take no more than an hour in each matter. Your Honour, we respectfully submit that that is a matter that is significant to take into account in the circumstances of this case as to whether or not expedition should be granted and whether or not in the circumstances of this case there should be an additional order under section 18. If your Honour pleases.

HIS HONOUR:   Just a small matter.  I think the decisions in Fardon and Baker were handed down before these applications were made.

MR STREET:   Your Honour, the argument deals with them in full, both my learned friend and myself.

HIS HONOUR:   And I think it is fair to say that insofar as you are seeking to rely on the decision of the Court in Kable, that Fardon and Baker rather make your task more difficult.

MR STREET:   Your Honour, we say not so in this case because here the function that was vested was one which is entirely exceptional.  It is completely out of the ordinary for a court hearing a trial to descend into the arena, compelled by statute, to engage in a task involving deliberating upon and appointing a representative for an accused in that trial.  It gives the imprimatur of the court hearing the trial, a court required to remain and being seen to remain impartial in the hearing of the trial, to embark upon deliberating and appointing a representative, albeit of a limited nature, a statutory examiner. 

I use that term deliberately. It is not a right to cross‑examine. The function that is conveyed by section 294A could not be described as cross‑examination; it is a function to ask questions. The court is compelled to deliberate upon that, and compelled to appoint such a person in the trial. The interference ‑ ‑ ‑

HIS HONOUR:   I took the view in Fardon and Baker that it was equally exceptional to provide that a Supreme Court judge, considering a matter many years later, should add to the sentence that was imposed at the time of the trial of the offenders in those cases and deprive those persons of the normal course that one would anticipate by the completion of those sentences.  But the majority of the Court, indeed all other members of the Court, took the different view.  So I am only asking myself whether this is really a futile application because of the state of authority expressed in Fardon and Baker.

MR STREET:   Your Honour, we certainly seek to distinguish them, because here it is in the process obviously of the deliberation ‑ ‑ ‑

HIS HONOUR:   You say that the point of distinction is that this is a law that actually enters into the process of the conduct of the trial, as distinct from its consequences subsequently.

MR STREET:   Quite.  Yes, your Honour.

HIS HONOUR:   It goes down into the well of the courtroom.

MR STREET:   Yes, your Honour.  And involves the court and the court’s authority being given to descending into the arena for this selective statutory representative.

HIS HONOUR:   Are you familiar with the case of the Home Secretary v M, a decision of the English Court of Appeal of last year?

MR STREET:   Your Honour, I think I have looked at it yes, your Honour.

HIS HONOUR:   Of course the English do not have, unless it comes in through the European Convention, the same constitutional framework as we have.  This was the case where under terrorism legislation the English Tribunal, which examines terrorist allegations, has the power to appoint a special advocate, as it is called under the legislation, and the Tribunal did so.  The person accused of terrorism offences refused to co‑operate, but in fact the special advocate did such a good job that he convinced the Tribunal, and subsequently the Court of Appeal of England, that the person should be released.

MR STREET:   Yes.

HIS HONOUR: And he was released, over the protest of Mr Blunkett. So that at least that case, which is [2004] EWCA Civ 324, suggests in another jurisdiction, albeit with a different constitutional framework, that the provision of court appointed advocates is not unknown to our legal tradition, a tradition of the common law.

MR STREET:   Your Honour, there is a marked distinction between the exercise of the use of a judicial discretion to appoint a representative and a compulsory imposition of a selective statutory examiner.  The two are not the same.  Here the right to cross‑examine that the unrepresented accused had was taken away.  This was not a case of imposing representation on the accused for the conduct of the trial.  That is a marked distinction. 

Your Honour, there is a very powerful dissenting judgment, or opinion, expressed by Judge Patrick Robinson in the Prosecutor v Milosevic, which we have referred to in our written submissions, identifying the reasons why this is in fact not something which the court should sanction, and we have touched upon that and developed that in our written submissions.

Your Honour, the issue raised in relation to Kable, we say, is reasonably arguable for the purpose of deliberation upon it by your Honour in this application and we would go further, that in any event, quite apart from the Kable issue, the second ground we seek to raise is also a ground of significant public importance in respect of a constitutional right to a fair trial.

We say whatever might be the consequences of Fardon or the like in respect of the Kable argument, there is no such argument that confronts the

applicant in relation to the unfair trial issue.  Indeed, the respondent’s written submissions do not seek to take issue, in terms of developing an argument, that there is no potential constitutional right to a fair trial.  They seek to argue whether or not this is an inviolable feature.  That argument, we would have said, is one which is plainly not subject to any potential argument of futility of the kind that your Honour has touched upon.  It is in those circumstances, your Honour, that we ask for the orders we have identified.  If the Court pleases.

HIS HONOUR:   Yes, Mr Cogswell.  What is the attitude of the prosecution to this application?

MR COGSWELL:   To neither oppose nor consent to the application for expedition.  As to my learned friend’s submission about your Honour’s referral of the matter to a Full Bench, the only observation that I make, your Honour, is that the estimate by my learned friend of half a day I think is, in my view, fairly optimistic.  As my learned friend frankly conceded, it does not take into account the possible intervenors and the question about the constitutional – rather, constitutional entrenched right to a fair trial may attract intervenors, particularly for this sort of legislation.  The legislation is not novel.  There are provisions, for example, for persons appointed to be able to cross-examine children, there are provisions in other States.  So it may well be that intervenors would be attracted.  They are our submissions, if it please the Court.

HIS HONOUR:   Justice Sully, who is of course a very experienced judge, was very critical of the provision.  I read his Honour’s reasons at paragraph 139 of ‑ ‑ ‑

MR COGSWELL:   Yes, his Honour had strong views ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ his observations on sentence, which at least arguably indicates that he felt rather uncomfortable about the process that was imposed on him by the State Parliament in this case.

MR COGSWELL:   I think that is, with respect, a fair ‑ ‑ ‑

HIS HONOUR:   Justice Wood did not agree with that.

MR COGSWELL:   That is right.

HIS HONOUR:   And Justice Barr agreed with Justice Wood in the Court of Criminal Appeal, but Justice Mason, the President, did not make any observations on the point one way or the other.

MR COGSWELL:   That is right, whereas Justice Wood did.

HIS HONOUR:   I must admit that in considering the question of whether this is a matter appropriate to take out of its order, I am affected by the very strong expression of opinion by Justice Sully, whom I of course have a great deal of respect because of his great experience in conducting criminal trials.  Obviously he felt disquieted by the procedure and felt that it would have been possible for him to have protected the complainants adequately had the normal process of cross‑examination proceeded.  Can you help me on the chronology of when counsel were appointed as the statutory examiner, and how long they had to prepare for cross‑examination?  It does seem unusual that there was no question ‑ ‑ ‑

MR COGSWELL:   I cannot, your Honour.  That piece of – sorry I interrupted your Honour.  That piece of information was in my grasp when I was appearing in the Court of Criminal Appeal, but I had not anticipated that question.  The statutory examiner was an experienced criminal silk ‑ ‑ ‑

HIS HONOUR:   I realise that, and I am not at all criticising the statutory examiner, who I am sure would have brought to bear his own very great experience in criminal trials.  But it does leave the case of a contested trial with large consequences for liberty in the position that no questions at all were addressed to the complainants, which is at least unusual in a defended trial of criminal sexual offences of this kind.

MR COGSWELL:   That is right, your Honour.  There is a question of course about why that occurred.  My understanding is, and I am subject to correction by my learned friend, is that the statutory examiner, as my learned friend calls him, did not have instructions to put anything to the complainant.  So he was not in a position to ask any questions.  I am not sure whether your Honour is wondering whether there might be some question about whether Mr Taylor, who was appointed by his Honour, was in a position to have sufficient time to prepare.  Is that what is on your Honour’s mind ‑ ‑ ‑

HIS HONOUR: Well, that was one question. The other is the question inherent in a provision such as section 294A of the Criminal Procedure Act, that if the person is representing himself or herself and does not give instructions, that it is then inherent in the statutory scheme that the statutory examiner will not be in a position to properly ask questions.

MR COGSWELL:   Yes.

HIS HONOUR:   Therefore, that the statutory scheme itself has that flaw at its heart and, if that is so, whether that is relevant to an argument that there cannot under this statutory scheme in such a circumstance be a fair trial.

MR COGSWELL:   I can appreciate the force of that point, your Honour.  I mean without – and I do not need to and I do not want to embark upon an argument about the merits of it, but I can appreciate the force of that, your Honour.

HIS HONOUR:   Just let me finally clarify your position on the application for me to refer the matter to a Full Court.  Is that neither to oppose nor to support or consent to that application, or is it to take the view that that is a matter that should be dealt with by a special leave panel if expedition is granted?

MR COGSWELL:   Well, your Honour, we have found one case where Justice Gaudron, sitting as a single Judge, referred a special leave application to the Full Bench.

HIS HONOUR:   Do you remember the name of that case?

MR COGSWELL:   I do.  I have it ‑ ‑ ‑

HIS HONOUR:   Was that a case where there was there was a clear basis for the likelihood that special leave would be granted?

MR COGSWELL:   The case is called Gersten; Ex parte Refugee Review Tribunal.  It is unreported – I have a transcript in front of me – dated 16 May 2001.  It is complicated because there appeared to be before her Honour two matters, or two issues; one a set of proceedings in the original jurisdiction of this Court seeking prerogative relief, and the other a special leave application.  Her Honour seemed to spend most of the time dealing with the matter in the original jurisdiction, but at the last page her Honour said – and I will make this available to your Honour:

What I shall do is I shall refer the application for an order nisi to a Full Court and I shall direct that the special leave application be listed as a special leave application before the same Full Bench, the parties are being put on notice that should the special leave application fail, it may be that the application for an order nisi will be dealt with summarily.

HIS HONOUR:   Well, that is a slightly different procedural context because ‑ ‑ ‑

MR COGSWELL:   That is right.

HIS HONOUR:    ‑ ‑ ‑that had a federal element and, therefore, you had the application for a constitutional writ.

MR COGSWELL:   Yes.

HIS HONOUR:   Which made it appropriate to take that matter to a Full Bench.

MR COGSWELL: Other than that, the only cases which we have found where a single Judge has exercised a section 18 power have been matters where their dealing was seized with matters in the original jurisdiction of the High Court rather than matters which are special leave applications. So we have not, apart from that case which has the procedural distinctions which your Honour referred to, been able to turn up a case where a single Judge has referred a special leave application to the Full Court.

HIS HONOUR:   Yes.  Very well, thank you very much.

MR COGSWELL:   May it please the Court.

HIS HONOUR:   Is there anything in reply, Mr Street?

MR STREET:   Very briefly, your Honour.  My learned friend just referred to the legislation not being novel.  Your Honour, the position in relation to Canada, for example, is very different in the Canadian legislation, which was touched upon by the various Law Reform Commissions.  There, there was a judicial discretion; very different from the provision of the present case.

Your Honour, in relation to the question of the application of section 18 in the present case, in our respectful submission, there is a public interest in ensuring if possible that the potential consequence of delay is avoided if there are questions, which as I understand it my learned friend does not seek to assert the contrary, are of a constitutional nature and capable of meeting criteria under section 35A. If the Court pleases.

HIS HONOUR: This is an application for expedition of two applications for special leave to appeal to this Court from a unanimous judgment of the New South Wales Court of Criminal Appeal. The applications raise, in essence, the same points. Primarily, these concern the constitutional validity of section 294A of the Criminal Procedure Act 1986 (NSW). There is a connected and dependent point concerning the application of the Criminal Appeal Act 1912 (NSW).

The nature of the applications

The applicants complain that section 294A of the Criminal Procedure Act 1986 violates constitutional protections that exist for the fair trial of criminal charges, and involves an impermissible intrusion by other branches of government into the performance by the independent judiciary, including the State judiciary, of the functions reserved to judges by the provisions and structure of the Australian Constitution: see Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51.

The applicants are brothers who were found guilty and convicted in a criminal trial in the Supreme Court of New South Wales before Justice Sully and a jury.  Apparently by their own choice, they were not represented by lawyers at that trial.  Upon their conviction they were sentenced to, and they are presently serving, lengthy sentences of imprisonment.  In effect, they raise the same legal points.  They are represented in this Court by the same counsel; so is the prosecution.  It follows that the application is effectively for the expedition of a single application for special leave. 

Expedition of hearings in this Court is not available for the asking.  To expedite one hearing is effectively to delay the hearing of other proceedings that are awaiting their due turn in this Court’s list.

A ground for expedition is shown

Three questions are raised by the application.  First, has a basis for expedition been shown?  Secondly, would the grant of expedition be futile, having regard to the prospects of success apparent on the face of the record or are grounds propounded that are reasonably arguable?  Thirdly, where does the balance of convenience lie?

As to the first question, I believe that a basis for expedition has been shown.  The evidence in these applications shows that the applicants will face criminal trial on other and different offences that are listed to commence in New South Wales on 28 February 2005 unless some other or different order is made.  It is, of course, not at all certain that this Court would disturb such a listing.  The Court has said many times, as recently as the last special leave hearing in Sydney in 2004, that it will not normally interfere in the listing of criminal proceedings nor entertain interlocutory hearings that could have the consequence of disturbing such proceedings:  see Adler v The Queen [2004] HCATrans 546.

However, if the applicants can make good a contention that important constitutional rights are disturbed by the operation of section 294A of the Criminal Procedure Act 1986, and if that section would, or could, apply to the trial pending in February 2005, it is possible, if special leave were granted, either that this Court or a court in New South Wales would interrupt the hearing in 2005 or otherwise deal with the matter so that such a possible constitutional difficulty was avoided.

The applications are reasonably arguable

Secondly, I cannot say that the applications have no reasonable prospect of success.  It is true that the recent decisions of the Court in Baker v The Queen (2004) 78 ALJR 1483 and Fardon v Attorney‑General (Qld) (2004) 78 ALJR 1519 constitute a difficulty which the applicants would have to overcome in making good the ground of their application based on the principles in Kable.  Nonetheless, no one has doubted the continued operation of the principles in Kable.  As well, the applicants in this case raise a separate and different point concerning the suggested constitutional right to fair trial.  This is a point that has been addressed in dicta in this Court.  It may be one that is ripe for consideration in these applications.

In saying this, I am conscious of the very strong criticism that was expressed by the trial judge, Justice Sully, at the first trial of the applicants.  His Honour, in his reasons for sentencing the applicants, made this observation:

I may well understand that to criticise so-called progressive reform is to show in many quarters the proverbial red rag to a bull, but I presume even so to propose that serious and urgent attention should be given to the repeal of section 294A before it really does become an entrenched vehicle for the wrongful depriving of accused persons of what are in truth not merely basic legal rights, but basic human rights as well.

That is paragraph 139 of his Honour’s reasons for sentence.

In the Court of Criminal Appeal, whose judgment is the subject of the proposed applications for special leave, Justice Wood, the Chief Judge at Common Law, disagreed with Justice Sully’s remarks.  Justice Barr agreed with the comments of Justice Wood.  However, Justice Mason, although rejecting the Kable contention, did not make any observations on what Justice Sully had said. The inference is that the trial judge in this case felt distinctly uncomfortable about the procedure that section 294A of the Criminal Procedure Act required of him and of the court and of the conduct of the trial. For these reasons I am of the view that the grounds which the applicants advance, at least those relating to the Constitution, are reasonably arguable when viewed at this stage.

The balance of convenience favours expedition

Thirdly, the balance of convenience lies in favour of granting expedition.  It is not opposed, nor consented to, by the prosecution.  A matter in the Court’s list for 4 February, 2005 appears to have settled.  If the applications were heard in Sydney on 4 February, 2005 that would, at the very least, allow the applicants and the prosecution to know whether the applications will come before this Court at a later stage by way of appeal.  It seems to me that it is convenient and appropriate that that is the course that should be adopted.

Reference to a Full Court is refused

An associated application was advanced that I should, under section 18 of the Judiciary Act 1903 (Cth), take my own initiative to refer the application to a Full Court. There is certainly power for a single Justice to do that, as the language of section 18 indicates. However, I would not make an order of reference as sought by the applicants. I have reached that view for the following reasons.

First, the special leave hearing, which I will propose to fix, can be heard and determined as early as 4 February 2005, and that in advance of the second trial of the applicants.

Secondly, although the grounds advanced, or two of them, are reasonably arguable, it is not a case where it could be said to be certain that special leave would be granted by this Court. If the applicants have a constitutional point under section 294A it is one which, in respect of their second trial, they could equally reserve during that trial for consideration at a later time.

Thirdly, the reference of the matter to a Full Court might be viewed as an attempt to jump the requirement to pass the barrier of special leave, which is a requirement that has been validly provided by the Parliament and which is respected by obliging, in the first instance, that the application normally come under the consideration of a special leave panel.

Fourthly, the cases that have been referred to in argument where a single Justice has referred matters to a Full Court are complicated by the fact that they involved primarily applications in the original jurisdiction of the Court for the grant of a constitutional writ with an associated application for special leave to appeal.  That is not the present case, which is confined to one of applications for special leave from a State court.

Orders

For these reasons the application to refer the matter to a Full Court is refused.  However, the order for expedition is granted.  The application for special leave will be expedited and heard before a special leave panel of the Court in Sydney on Friday, 4 February 2005.  I certify for the appearance of counsel in Chambers.

MR STREET:   If the Court pleases.

MR COGSWELL:   May it please the Court.

HIS HONOUR:   The Court will now adjourn.

AT 10.21 AM THE MATTERS WERE CONCLUDED