Marriott v McDonnell; Bennett v Crowe

[1992] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B17 of 1992

B e t w e e n -

BRADLEY HAROLD MARRIOTT

Applicant

and

WILLIAM PATRICK McDONNELL

Respondent

Office of the Registry

Brisbane No B23 of 1992

B e t w e e n -

CHRISTIAN THOMAS BENNETT

Applicant

and

ROBERT ALEXANDER CROWE

Respondent

Marriott 1 24/6/92

Applications for special leave

to appeal

DEANE J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 24 JUNE 1992, AT 3.16 PM

Copyright in the High Court of Australia

MS C.E. HOLMES:  May it please Your Honours, I appear for

the applicant, Marriott. (instructed by Boe &

Company)

MR A.J. RAFTER:  May it please the Court, I appear on behalf

of the applicant, Bennett. (instructed by Biggs &

Fitzgerald)

MR M.J. BYRNE:  If the Court pleases, I appear with my

learned friend, MR M.G. CHOWDHURY, for both

respondents. {instructed by D. Field, Solicitor to

the Director of Public Prosecutions {Queensland))

DEANE J: Yes, Ms Holmes?

MS HOLMES:  Your Honours, it is necessary for me to make an

application for extension of time in this case

because the application for special leave was filed
eight days out of time. For that purpose I would

seek to read the affidavit of Andrew Boe, which was

filed on 6 May 1992. What it indicates is that

legal aid was not approved until a time outside the

time for the filing of the special leave

application.

DEANE J: What is your attitude to this, Mr Byrne?

MR BYRNE:  We have indicated to our learned friends that we

do not oppose the application.

DEANE J:  I think, Ms Holmes, you can come to the merits of

the application.

MS HOLMES:  Thank you, Your Honour. I hand up three copies

of ~y outline of argument.

DEANE J:  Ms Holmes, the judgments below and the documents

in the application book indicate there were three grounds for claiming jurisdiction to award costs.

This refers only to one of them.

MS HOLMES: Yes, Your Honour, I should have indicated at the

outset that the other grounds, which are the

implied jurisdiction grounds and the inherent

jurisdiction ground, have been abandoned - - -

DEANE J:	I see.
MS HOLMES:	- - - and it is proposed solely to argue on the

basis of section 88 of the Justices Act.

DEANE J:  If I might say so, it does not seem to me that you

abandon very much.

MS HOLMES: That is probably so, Your Honour. If I might

hand up copies of the Justices Act, or in fact what

Marriott 2 24/6/92

I am handing up are parts or divisions 1, 2, 4, 5 and 6 of that Act which contain the relevant

sections. The section 88, of course, is the
section as to the interpretation of which this

application is made.

DEANE J:  Now, can I, in an endeavour to be helpful,

indicate to you one problem that I see in your

application and that is this that while the ability

to award costs in a committal proceeding is a

matter of some general significance, in this case

the only question involved is the construction of a

particular statutory provision which is not in

common form and which is very much affected by its

particular history.

Now, in that context where no question of general principle is involved and where you cannot

even see any great matter of public importance in

that the parties in the committal proceedings could

be well ordered to pay the costs of the

prosecution, on your construction, it prima facie

does not strike one as the sort of case in which

this Court would grant leave to appeal.

MS HOLMES:  I appreciate what Your Honour says.

DEANE J: If I can just direct your attention to that

matter and, of course, deal with anything else you

would like to deal with.

MS HOLMES:  Yes, but my submission is that it is essential

in the administration of justice in the
magistrate's court in Queensland that this

section be interpreted because of the difficulties

that I have referred to in my outline in practical

terms for any defendant. Now equally, of course,

with the power to award costs in summary hearings

that may go against the defendant too. But in the

context of adjournment of the committal hearing the

practical difficulties are those that I have

outlined that, firstly, from the defendant's point
of view, if the defendant turns up and the police

officers have not met the responsibility to furnish

statements in advance then the defendant, not

infrequently, finds himself in the position because

he is unable to sustain the costs of another day of having to proceeding with a committal ill prepared.

Secondly, if witnesses are not available for

cross-examination, as again is not infrequently the
case, again, if he cannot afford the costs of

another day he has to go on ill prepared. And the

point about that is that the committal proceeding

is so important to the prospects of getting a fair

trial. It is such an important element in the

Marriott 24/6/92

whole criminal process. It has ramifications, not

just in the way the committal hearing itself is run

in the magistrate's court but in what will happen

after in the extent to which the defendant will be

able to meet his trial. That is why it is of such

significance.

The other side of the coin from the way it

affects the defendant is, the way it affects the police in the sense that there is no sanction if

they do not meet their responsibilities, there is

really nothing to make them want very much to do

what the director's guidelines, and these are the

guidelines that set out the requirement for

delivery of statements in advance prescribes, which

is the delivery of statements in such time as to

give the defence a reasonable opportunity to
consider statements, and preferably seven days

ahead of a hearing.

Now, there really is nothing to make a police

officer comply with that, nor is there anything to

make a police officer ensure that the witnesses who

have been requested for cross-examination are there

for a committal because there is no risk of a cost

order, and that itself would be a very significant

sanction, and one has, as well as that, the

difficulty for a defendant, first of all if he

cannot meet the cost of another day he has to put

up with going ahead with the committal without

proper preparation, without the witnesses he needs.

Secondly, even if he is funded by legal aid, for

example, if there is nothing very much to compel a
police officer to have what is necessary on the

first day of the committal the defendant, at the

very least, has the delay of his proceedings if he

wants a proper committal, may lose a day's wages or

however long the committal is to take. So there

are those difficulties even if the costs issue does

not arise. But it is the costs issue that is the

significant one, both from the point of view of

enabling a defendant to have the committal he

should have and from the point of view of providing

some sort of sanction for the police to do what

they are required to do.

McHUGH J: But there are other sanctions available, are

there not? I mean, the magistrate can dismiss the

charge if the police are not ready to go on. In an

appropriate case it may be you could even get the

proceedings stayed, but certainly you could have

the proceedings dismissed.

MS HOLMES:  Your Honour, it is doubtful that a magistrate

has any power to stay committal proceedings, in the

first instance. Secondly, it is extremely doubtful

that any magistrate will dismiss charges simply

Marriott 24/6/92

because a witness is not available on the precise

day. It is much more likely that an adjournment

will occur at the expense of the defendant because

the magistrate has no power to make any other

order, if the Court of Appeal's construction of

this section is correct. In my submission, there

is good reason to think that it may well not be

because it is not a situation where the court was

unanimous, there is a strong dissenting judgment

and there are strong arguments for the proposition

that in fact that is the wrong reading of the

section.

It is not so much an appeal to history as a

consideration of how that section was amended in

1964 and, in my submission, it was amended with a

clear intention to enable the awarding of costs in

the case of all adjournments. That was the first

time this section actually provided for costs and
the way that it has been incorporated into the

legislation makes it clear that it was intended

that costs be available in all situations, in my

submission, and there are a number of reasons that

I can point to in the wording of the section

itself, in the section heading and so on, to

advance, at least, a very substantial argument on

that, I would submit.

So that, in my submission, there is a strong

public interest here in the practical
administration of justice in Queensland's courts,

because not only does it affect the conduct of the

committal in the magistrate's court but it affects the way an accused can prepare for his trial. And

it is, in my submission, a very burning question in

that sense.

McHUGH J: The other side of the coin is that if you are

right the defendant, himself or herself, could be

ordered to pay the costs of an adjournment when the

defence seek the adjournment.

MS HOLMES:  If the adjournment in some way is frivolously

requested or for some not very good reason, yes,

that possibility would be open, but it is open, as

it is on summary hearings, there seems no very good

reason that it should not be open also on committal

hearings. Perhaps that is also in the public

interest that committal hearings not be frivolously

adjourned. But, in any event, there are those specific difficulties that face a defendant if

there is no power to get those costs. Unless there

is anything particular that I can deal with for

Your Honours, those are my submissions.

DEANE J: Thank you, Ms Holmes. Mr Rafter?

Marriott 5 24/6/92

MR RAFTER:  Could I hand up to Your Honours an outline of my

submissions?

DEANE J: Yes, Mr Rafter?

MR RAFTER:  Your Honours, there is very little that I can

add to what Ms Holmes has already submitted and to

my written outline. Could I just, though, make

this one observation that the Court has already

made mention of the fact that if the argument
contended for by the applicants here be correct

then, of course, defendants may well be forced to bear costs in adjournments they seek, and that is

so of course. But the cost to a defendant in an adjournment forced upon him will usually be very

much greater than that when the reverse applies

because the proceedings are usually prosecuted by

police prosecutors, and defendants are usually

represented by solicitors or barristers. So, when

defendants are forced into adjournments that are

not of their own making they will be forced to bear

a very great cost quite often. I just wanted to

make that additional observation. Thank you,

Your Honours.

DEANE J: Thank you, Mr Rafter. The Court need not trouble

you, Mr Byrne.

This application for special leave to appeal

raises a question of the construction of

s. 88(3) of the Justices Act 1886 (Q.). That

question of construction gives rise to no question

of general principle. To the contrary, it turns
very much upon the peculiar legislative history

applicable to the particular State statute. While

it is, as Ms Holmes and Mr Rafter have pointed out,

a question of some significance in the

administration of justice in Queensland, it is not,

in our view, a question which is appropriate to

attract a grant of special leave to appeal to this

Court from a decision of the Queensland Court of

Appeal.

Accordingly the applications for special leave

to appeal are refused.

AT 3.32 PM THE MATTER WAS ADJOURNED SINE DIE

Marriott 6 24/6/92