Maley v Hutchins

[1993] HCATrans 336

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SSl of 1993

B e t w e e n -

LEO MALEY

Applicant

and

ANTHONY HUTCHINS

First Respondent

and

THE DISTRICT COURT OF NEW SOUTH

WALES

Second Respondent

Application for special leave

to appeal

MASON CJ

BRENNAN J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 28 OCTOBER 1993, AT 3.27 PM

Copyright in the High Court of Australia

Maley 1 28/10/93

MR R.W. CAMERON: If Your Honours please, I appear for the

applicant. (instructed by Isenberg Spedding &

Player)

MR J.E. THOMSON:  May it please the Court, I appear for the

first respondent. (instructed by H.K. Roberts,

Crown Solicitor for the State of New South Wales)

The second respondent has filed a submitting

appearance.

MASON CJ: Yes. Mr Cameron.

MR CAMERON:  If it please the Court. Your Honours, the

application arises out of a section in the New turn, is concerned with the failure to have

prosecuted a right of appeal from decisions of

magistrates in section 122 of that Act.

The terms of the section are set out in the

application book. I think they appear in

His Honour Mr Justice Kirby's judgment at page 18, and briefly, from which it would appear that where

the appellant fails to appear to prosecute in terms

of the recognizance that he was under, and the

appeal is dismissed in consequence, that he is

entitled to bring an application to the District

Court if he can show sufficient cause for his

failure to have appeared and to have prosecuted the

appeal, then the judge may, if he is satisfied that
the interests of justice so require, set aside the

order for dismissal of his appeal.

The effect of that order is set out in

subsection (4), the terms of which are important to

note. That is over the page on page 19. That

reinstates an automatic stay which the Act had

provided for upon the institution of the appeal in

the first place, with some limitations: that there

is a power to apply terms which were not there

before.

The relevant words there to which I would wish

to direct the attention of the Court are:

in force immediately before the appeal was dismissed shall continue from the time the

appeal was dismissed until the appeal is heard

and determined -

so that the section itself proceeds on the basis

that it is in between, that is to say that

following upon it there will be the section 122

appeal, and subsection (4) is directed to the

intervening period of time.

Maley 28/10/93

Now, the question that arises, of course, in

any such application is what needs to be done to
support the application itself. We are all well
aware of the case in the civil jurisdiction of all

the courts - England and Australia - that applies

where a judgment is entered in default of an

appearance or default of a defence. There, the

rules have always provided that the court should be empowered to set aside the judgments on application

bought for that purpose. Two classes of cases:

one, where it is as of right where there is an

irregularity and the other, where one can show that

he has a prima facie bona fide defence on the

merits and he satisfactorily explains the delay.

In the reported decisions - and there are many

of them - relevant to that class of case, that is a

civil class of case, the courts are always at pains

to indicate that the court is not required to go
into the merits at all - in fact, it should not go

into the merits; that there should be an affidavit

directed to the defence on the merits and the delay

should be satisfactorily explained.

TOOHEY J: But if that is right, at least if it is right in relation to a provision such as section 127A which certainly has its counterpart in other States where

there are Justices Act legislation, then what do

you make of the words, "where in his opinion it is

in the interests of justice to do so"? That seems to contemplate that there may be good reason shown

why there was no appearance but the person applying lacks such merit that it is not in the interests of

justice to vacate the order originally made.

MR CAMERON:  I have brought one decision up where the other

decisions are reviewed. It would appear that that

is directed to the aspect of delay and also the

failure to appear; not to the merits. You either

have a defence or you have not in the civil

situation.

TOOHEY J: But are there not decisions, Mr Cameron, on

section 127A or its counterpart elsewhere?

MR CAMERON:  No, I have not been able to find any. I guess

it does not occur that often; that one does not

appear to prosecute or defend a criminal -

TOOHEY J: Harking back quite a long way, I seem to recall,

certainly in the State where I practised, that they

were not all that uncommon under the Justices Act

of Western Australia.

MR CAMERON:  I have brought a judgment up of the Court of

Appeal a long time ago where they refer to a

practice, a common law practice relative to this

Maley 3 28/10/93

position where there was a failure to appear and
prosecute. All the circumstances in combination

with - - -

TOOHEY J:  I must say, just to interrupt you, I am really

thinking not precisely of 127A in relation to an

appeal but non-appearance in some sort of

prosecutorial matter where there are comparable

provisions to 127A.

So, is it your argument that on application

under 127A, the court is not to concern itself at

all with the merits of the matter but only with the

circumstances under which there was a

non-appearance?

MR CAMERON:  I could not say not at all. I would say the

court would be naturally entitled to inquire as to

what the defence was. There are no pleadings. It

might be drunkenness; it could be automatism; it

could be anything. But there must be some defence
and the court, no doubt, would be concerned to

inquire as to what it was.

The difficulty is in putting an affidavit on,

if one goes to the merits, because, really, as a

constitutional right, at least not to give oneself

up, as it were, to remain silent, under compulsion.

So that the difference between the civil side and the criminal side is not just because there is not any pleadings but is much deeper than that.

BRENNAN J:  Mr Cameron, where is the ground of certiorari,

whatever the merits of this application might be?

MR CAMERON:  It only was disputed before the court that that

does run to the District Court: two classes of

cases where there is a total absence of

jurisdiction or in irregularity itself. There is

no statute which takes away the writ in the case of

the district - - -

BRENNAN J:  No, how do you put your case in support of

certiorari in this case?

MR CAMERON:	How did I put it?
BRENNAN J:	How do you put it now?

MR CAMERON:  The same way as in the Court of Appeal. The

Judge Freeman took into account totally extraneous

mattes; did not consider matters which were

relevant, namely, the defence which was that there

was not a tenant or, rather, that the prosecutor

was not a tenant in terms of the particular Act

under which he was being prosecuted.

Maley 28/10/93

BRENNAN J: There are two problems about putting it that

way, are there not? One is that that might be

quite consistent with him going wrong in law, but

not acting without jurisdiction; and the second is

that you do not know what happened before

Judge Freeman because there is no transcript and no

evidence.

MR CAMERON: There is a sparse transcript

BRENNAN J:  Not just sparse. I mean, the proposition that

we do not know what the solicitor, Mr Boyd - we do

not know what he said. This was a course of

dialogue between bench and bar and it seems a major

step of assumption to be able to say that these

problems were not discussed with the judge, and the

judge, if you like, went very wrong.	But at the
end of it all, that is what he decided.

MR CAMERON:  We can only draw an inference from what he said

immediately after. But there are two aspects to a

defence in a criminal matter, Your Honour: the

evidence itself and, of course, the argument.	We
know that the evidence was not accepted. There
were some comments made about that.	I think that

is well documented in the transcript as to its

fate. What was not transcribed was the argument

part of it, which was secondary to the defence.

BRENNAN J:  We know that the judge did not say that he was

overly impressed with the argument about the
witness but that does not mean to say that in the
course of the argument there was not something said

along the lines of, "It does not matter what

Your Honour thinks of it. This is a case that he

is entitled to have heard." And the judge might

have said, "Well, I accept that quite happily, but

I am not going to make an order under 127A because this fellow obviously has not wanted to turn up,

has just deliberately kept away.	I do not accept
his excuse that he made a mistake."

MR CAMERON:	Probably there are three things that we would need to look at: one, of course, was the tenant or
no tenant, which was repeatedly said to have been
the defence; secondly, what His Honour said seemed to be the overriding considerations, namely that he
walked out, as it were, or took a spurious point before the magistrate. It is totally extraneous
because of the section 122 being a hearing de novo.
Then he failed to turn up at the section 122
appeal, which is the point in issue, as to why he
did not turn up.  Now, His Honour seems to have
been prepared to accept that it was due to a
mishap, which should have been enough then to
satisfy the terms of the section.
Maley	28/10/93

The only requirement, after all, in the

section which is directed to actual proof is

directed to the failure to have turned up. The

matters in the interests of justice seemed to be

secondary to that and related to other matters

which are not particularly specified.

But of those three things then, that is the

actual defence itself which was outlined and which

His Honour did not seem to have been interested in,

only two were totally extraneous matters. The only

two that he mentions in dismissing the appeal are

those two extraneous matters.

The proper reception of evidence, of course,

is fundamental to the exercise of any jurisdiction

in any inferior court and the way His Honour dealt

with the attempts to tender the lease and the

attempt to put the applicant in the witness-box to

explain the delay were not, in my respectful

submission, a proper way in which evidence ought to

have been received which means, in terms of

certiorari, that he did not even embark upon the

jurisdiction he had. I think His Honour the

President dealt with that aspect in the judgment

which favoured Mr Maley.

BRENNAN J: That raises for me another difficulty. There

seems to be some criticism of the want of

procedural propriety on the part of the District

Court judge. It seems to me to be a big step to

take to say, the parties are legally represented
before the judge and there is no sign of the

parties' representatives ever complaining about the

procedure that is adopted, that it is then open on

appeal to cavil at that. That is the time when

counsel stands up and says, "No, Your Honour, we

won't be party to this."

MR CAMERON:  Yes. He did attempt to put two very material

pieces of evidence before the court, to no avail	and, in my respectful submission, that is all he
probably needed to have done. Maybe a lot was said
from the bar table that should not have been said and perhaps he should have objected to it. Maybe
that could have been counterbalanced but we just
do not know because His Honour did not appear to
have received it, and that is about all the
evidence there was. If there were a trial or a
retrial at the section 122 hearing, one would imagine it would be taken up with nothing else but
whether or not there was a tenant and whether this
was a valid lease or a forgery or whatever the case
might be. But there it was and His Honour did not
take it in.

Maley 6 28/10/93

I cannot speak for Mr Boyd as to what was

playing on his mind when these things were being

said but I suppose different people have different

impressions and react in different ways.

If there is a parallel between the civil and

the criminal setting aside powers, and I would

submit that there is a difficulty in there being an

exact parallel, could I take Your Honours briefly

just to two portions of the judgment where

His Honour Mr Justice Mahoney, with whom

Mr Justice Meagher agreed, and that is at pages 32,

going over to 33, and 37. In between 15 to 20,

His Honour had said:

it is relevant for the court to consider,
inter alia, the circumstances in which the

applicant did not appear when the appeal was

called on for hearing and whether the

applicant has such a likelihood of succeeding

upon the appeal that it would be "in the

interests of justice" that he be allowed to

pursue the appeal.

That second part is a straight steal, as it were,

from the civil judgment, and I will hand that up in

a second.

But then, just assuming that His Honour is

absolutely correct with that, and we move on to see

what happened. He said:

In so phrasing the matter, I am conscious

that, on such an appeal to the District Court,

it is for the prosecutor to commence and to

prove his case against the appellant.

And no one would disagree with that.

It is not necessary for present purposes to
examine questions of onus.	The judge, under

s 127A, may consider whether, on the evidence

before him, the circumstances are such that,

as on the rehearing of the proceeding on

appeal, the appellant would be convicted.

It turns it upside down so far as the applicant is concerned. And then over the page, the critical

part here, is:

The learned judge dealt with the matter

in such a way.

So, according to that, he must have considered it on the basis that the appellant might be or would be convicted without looking at any defence,

without, so far as can be ascertained, apart from

Maley 28/10/93

what was said from the bar table, straining to

determine what the facts or particulars of the

charges were.

So, in my opinion, what the learned judge did

was within the jurisdiction granted to him by

section 127A. So that we are looking now for

something that had convinced His Honour that

Judge Freeman was dealing with it in the way

prefaced.

We come now to page 37 and we start, I think,

at about point 17:

The learned judge did not indicate that he

accepted or rejected the contention that

Mr Kristinovski was not the tenant and that

Mr Lansbury was.

Well, that is the whole key to it. So, of course,

if one leaves that out of the equation totally and

does not even consider it, then it would be a short

step then to conclude, safely, that whatever it was

that the Crown was putting up or the prosecutor was

putting up would lead to a conviction.

He may have concluded that he was sceptical of

the evidence of Mr Maley in his affidavit.

There is nothing to indicate that he did.

He may have thought that the lease did not

establish that the flat the subject of this

dispute was leased to Mr Lansbury. And he may

have taken the view that, in the previous

proceedings, it had been held that

Mr Kristinovski was the tenant of the subject

flat and that, if the contrary was to be set

up, Mr Lansbury should have been called to

establish it. It was in these circumstances	that he indicated that he was "not satisfied
that the interests of justice require me to
set this determination of Judge Phelan aside".

So, His Honour there is taking the view that

Judge Freeman, in considering those matters - that

the phrase "the interests of justice require" is

directed to the merits rather than to the

non-appearance and delay aspect of it.

In the New South Wales Court of Appeal - and

it is actually an unreported judgment but it is in

the practice and is used as the bible in these matters - reviewed the English, or the earlier

cases, and perhaps if I could just direct

Your Honours to portions of it. This concerns this

Maley 28/10/93

aspect of the interests of justice being directed

not to merits but to the delays.

Sir Laurence Street, delivering the leading

judgment, reviewed the cases set out there and he

says this at the penultimate paragraph:

It will be observed that reference is

made in these statements to the requirements

of justice. The jurisdiction that a court exercises on an application of this nature

will be significantly affected by what might

be demonstrated to be the requirements of

justice.

I should reiterate, if it needs to be

reiterated, that a court hearing an appliction

such as the present is not concerned to embark

upon the adjudication of the truth or

otherwise of the case which is sought to be

advanced by a defendant; the court is

concerned rather to evaluate such evidence as

is put forward in order to see whether, in the interests of justice, a defendant, who has for

some procedural default been deprived of a

right to due determination of his defence,

should nevertheless be put back into the

position of enjoying that right. This
necessarily involves care being taken not to

embark upon attempted resolutions of conflicts

in evidence given by a defendant who may have

been cross-examined during the course of an

application to set aside a default judgment.

So that they want to know whether the grounds for the defence are there. In relating that to the

criminal thing, that could be fairly said as to

whether or not there is a defence and what is it.

His Honour Mr Justice Glass just deals with

that latter aspect:  In my opinion, the interpretation of a

body of evidence which exhibits

inconsistencies for the purpose of determining

what facts have been established is the task

of the court which tries the issue. It does
not arise in the course of deciding whether

there is evidence which, if accepted, will

establish a defence.

So that all these matters that His Honour

Mr Justice Mahoney, at page 37, was attributing to

what Judge Freeman may or may not have had in mind
were rather extraneous to the task in hand, in any

event.

Maley 9 28/10/93

If I can just hand up a copy of an early

judgment. It is Ex parte Day; Re Crampton and it

is a judgment of Sir Frederick Jordan; a certiorari

case. I take it from the judgment which is

referred to in certiorari, that His Honour had

somewhat of a reputation in that field. I just

refer to that for this reason, because it contains

a summary of the history of the situations. At

page 350, down the bottom, His Honour points out

that:

The following rules have been established

by the authorities with respect to the courses

open to a Court of Quarter Sessions when the

parties to an appeal, or one or other of them,

attend or do not attend at the time appointed

for the hearing.

And then the first situation:

If both parties appear ..... a completely

new trial -

and everything begins again. Secondly, "If neither

party appears" it is struck out and, thirdly, which

is our situation:

If the appellant does not appear but the

respondent does, the Chairman may, without

proceeding to hear the appeal, dismiss it and

confirm the conviction and sentence.

And, this is the other way:

If the respondent does not appear and the

appellant does -

but down then in the following paragraph,

His Honour says this:

The risk of any injustice being caused

by an appeal being disposed of in the manner
indicated, in the absence of one of the
parties, is mitigated by the power of a Court
of Quarter Sessions, at any time during the

currency of the sessions but not afterwards,

on such terms as it thinks fit to impose, to

set aside an ex parte adjudication and proceed

to hear the appeal.

So, there always was that power there. It had to

be exercised or the right to invoke the power had

to be done at the current sittings. Now, it is

just extended to a three-month period of

limitation, so that it is virtually the same as it

always was and nowhere, until this judgment, has it

ever been suggested that, to use His Honour's

Maley 10 28/10/93

terms, "the judge in hearing such an application

could - may consider the circumstances being such

that the appellant would be convicted" particularly

where the defence or the nature of it has been outlined. In this particular instance, it was

fundamental to the prosecution's case to have

established what was being disputed.

So, there was a failure to have exercised the

jurisdiction, at least in the failure to have

properly received the evidence that was being

tendered on the application. It was rejected out

of hand or not dealt with and His Honour

Mr Justice Mahoney, in not being able himself to

determine what the judge has found - only to have

speculated on it - just endorses that. It is a

matter, obviously, of public importance because

involving the criminal jurisdiction and the change

in status necessarily following upon a conviction,

that the right is a public right and is such that

the intervention of this Court is well warranted.

I cannot take it any further.

MASON CJ: Yes, thank you, Mr Cameron. The Court need not

trouble you, Mr Thomson.

The Court is not persuaded that the majority

in the Court of Appeal were in error in not

concluding that the learned District Court Judge

failed to exercise the jurisdiction which had been

invoked by the applicant.

It is significant that in the Court of Appeal

Mr Justice Mahoney stated that the Court did not

know what was said during the various addresses by

Mr Boyd who appeared for the applicant. The

materials were deficient in that respect. Without

knowing what was put to the District Court on

behalf of the applicant during the hearing of the

application, and the judge's responses, it would

not be right to conclude that there was a failure

to exercise jurisdiction.

Accordingly, the application for special leave

to appeal is refused.

AT 3.57 PM THE MATTER WAS ADJOURNED SINE DIE

Maley 11 28/10/93