Michaels v The Queen

[1994] HCATrans 60

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S187 of 1993

B e t w e e n -

EDGAR MICHAELS

Applicant

and

THE QUEEN

Respondent

Application for special leave
  to appeal

BRENNAN J
DAWSON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 1994, AT 9.54 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:  May it please the Court, I appear for the applicant with my learned friend, MR S.J. ODGERS.  (instructed by Watsons)

MR T.L. BUDDIN:  May it please the Court, I appear on behalf of the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

BRENNAN J:   Yes, Mr James.

MR JAMES:   Your Honours, the matter does require an enlargement of time.  The grounds in respect of that are set out in the affidavit in the application book, commencing at page 94, paragraph 8.  The applicant was in prison and there were difficulties of communication.  There was a matter involving legal aid.

BRENNAN J:   Mr Buddin, what is your attitude to the question of extension of time?

MR BUDDIN:   I have no objection.

BRENNAN J:   Time is extended, Mr James.

MR JAMES:   May it please Your Honour.  Your Honours, essentially, the issue of the case involves whether section 212 of the Customs Act, considered by this Court in Iorlano, though considered on an application for a rule nisi for writs of certiorari, prohibition and mandamus and on an application for special leave, Your Honour Mr Justice Dawson having directed that the application for a rule nisi be made before a Full Court, and considered as an interlocutory matter in criminal proceedings and considered as a matter of urgency, effectively lays down a principle, taken up again in Williams’ case, that the words “undue delay”, “as soon as practicable”, “as soon as reasonably possible” or whatever particular formula should be adopted either in the federal sphere or in the State spheres are purposive only.  That is to say, that these requirements that upon arrest a person should “be taken before a justice“ to be dealt with according to law are requirements which relate solely to the purpose of the journey to the justice and the time necessary to be taken rather than having additional to them a temporal element.

DAWSON J:   I am not sure that I understand that, Mr James.

MR JAMES:   If Your Honour pleases.  Where there has been a delay, an extensive delay, that delay being undue in the sense of exceeding what is necessary for the purpose for which the power for detention is granted, then at that point the clock for lawful detention has stopped.  If there was an arrest which was unlawful as for an improper purpose or a detention thereafter which was unlawful for an improper purpose, then the clock, the “undue delay” clock has never started and is effectively irrelevant to the exercise because at all times the detention has been unlawful.  Now, in this case the short facts were - - -

DAWSON J:   But you cannot have both a lawful detention and an unlawful detention at the same time, can you?

MR JAMES:   No, you cannot.

DAWSON J:   But that can work both ways, can it not?

MR JAMES:   No, because you can have an improper unlawful detention which creates an undue delay.  You can start the clock again, of course.  We have no problem with the proposition being that the clock can be started again, there having been a detention for an unlawful purpose.

BRENNAN J:   Let me understand it, if I can get away from the metaphors which are losing me a little.

MR JAMES:   If Your Honour pleases.

BRENNAN J:   This man was arrested.

MR JAMES:   Yes, Your Honour.

BRENNAN J:   He was taken to a police station.

MR JAMES:   The Australian Federal Police Station, yes, Your Honour.

BRENNAN J:   He was then interviewed.

MR JAMES:   Various things were done.  There were inquiries made and so forth and then he was interviewed.

BRENNAN J:   And then he was interviewed.  And then paperwork was being put in train with a view to his being presented before the court.

MR JAMES:   And I should say - there was evidence of that, that paperwork was being put in train - and there was evidence that he had been told, following the earlier period and at the time the paperwork was being put in train, that he would be charged and asked to remain with the officers.

BRENNAN J:   Right.  Well now, on your submission, was there any period after his first arrest in which he was in lawful detention pursuant to section 212?

MR JAMES:   No, Your Honour.

BRENNAN J:   None.

MR JAMES:   None.

BRENNAN J:   Why not?

MR JAMES:   Because either it was a detention initially for an unlawful purpose or when the lawful purpose came to the mind of the officers, when they decided to do that which they should have done back at the beginning, undue delay had occurred and continued to occur.

DAWSON J:   Does that mean if they had said, “Right, we recognise we have been acting illegally, you may go”, and they let him go to the front steps of the police station and then put their hand on his arm and say, “Now you must come back”, that would have been all right?

MR JAMES:   Your Honour, no, it would not have been all right, but it might start the clock running again.

DAWSON J:   Yes, start the clock running.

MR JAMES:   At least for the purpose of an action for false imprisonment or at least for the purpose of a defence, as this case involved, to escape lawful custody.  We are not dealing with admission of evidence; we are not dealing now with even recovery of damages in tort, we are dealing now with a conviction for escaping lawful custody.

BRENNAN J:   Mr James, if, contrary to your view, he was taken into lawful custody, taken to the police station en route to the court and there followed a period of unlawful detention by reason of its purpose being questioning only and that, in turn, was followed by a period during which the process of taking him before the court was resumed, and it was during that third period that he escaped, the question then is does the period during which he was being held for questioning to be taken into account in determining what is “undue” for the purposes of section 212?

MR JAMES:   Yes, Your Honour.

BRENNAN J:   The alternative is that the clock stopped running during that period.  That during the whole of that period he was held unlawfully but when the clock started again he was being held lawfully.

MR JAMES:   That is put as the alternative.  And that last proposition - - -

BRENNAN J:   Now, those are the two alternatives, are they not?

MR JAMES:   Yes, they seem to be, Your Honour.

BRENNAN J:   Well then, is there any question of general public importance in that?

MR JAMES:   Yes, Your Honour.

BRENNAN J:   Can you demonstrate two things:  one, general public importance; secondly, likelihood of error in the court below?

MR JAMES:   Dealing with the question of general public importance:  the question of general public importance is whether those formulae, “undue delay”, “as soon as my reasonably be practical” and so forth, can start again when the effect of an initial unlawful detention must continue, ie, is there a temporal element to it as well as a purpose element.

McHUGH J:   It has some surprising results if it did not.  Supposing the police arrest somebody and they proceed to take him before a magistrate but it is 12 o’clock and they say, “Pull up the car, we’ll handcuff him to the seat”, and they go inside for a couple of hours while they have a drink and a meal, then they proceed on their journey.  On your argument, is the subsequent journey from the hotel or restaurant still unlawful?

MR JAMES:   It is for a proper purpose and it is entirely, as far as we can see, an appropriate action by the police officers.  But when it comes to the man in the back of the car, he has no knowledge beyond the fact that he is being detained for an improper purpose and, in our submission, he would not be convicted of escaping lawful custody because of what now is in the mind of the police officers.

McHUGH J:   No, but supposing, after they leave the restaurant and they get to the traffic lights, he jumps out of the car and takes off.  On your argument, there is no escape from lawful custody?

MR JAMES:   That is so.  Indeed, we go that far because, if one looks at it in this way, the power has to be construed strictly.  It interferes with the liberty of the subject.  It is a matter of general importance, as Your Honour Justice McHugh’s question illustrates, because it illustrates how the liberty of the subject may be so circumscribed, yet the subject may, of course, know nothing about how that liberty is affected unless it is communicated to him in some such way as is appropriate with arrest.

Now, Justice Dawson raised with me, “Do you have to let him go out the door and bring him back again?”, and we do not say you do.  There would have to be, however, in Christie v Leachinsky terms, a sufficient notification to him that he is in lawful custody and for what he is in lawful custody.  Now, in this case that question was raised at the end of the summing up by the Crown Prosecutor and His Honour directed the jury in relation to that question but without ever adverting to whether there had been some such act as would start the clock again, some rearrest, or at least some notification and, indeed, the direction was given to the jury in terms which appear in the Court of Criminal Appeal’s judgment at page 78 of the application book, line 44:

“Now, this matter was dealt with in the summing up but I direct you, as a matter of law, that a detention which is or which has become unlawful may later become lawful if circumstances change which legitimise the further detention.

And I should indicate that the earlier language in the summing up had been justifiable.

Now, in the present case, if you find - and it is a matter of fact for you - that as a fact the police at l.20 ppm. on 22 November 1989, the day in question, were taking steps to have the accused brought before the court without undue delay -

and there is no explanation, at any stage, given as to whether those words can relate to what has gone on before -

then you may find that the detention, if it had become unlawful at all, had resumed its lawful purpose at the time the accused went through the window.”

McHUGH J:   I must say I have difficulty with part of your submission.  It seems to me that your case must stand and fall on the necessity to rearrest.  If you look at section 212 of the Customs Act, it says:

Every person arrested may be detained until such time - - -

MR JAMES:   Yes, Your Honour.

McHUGH J:   Now, a time comes; the person cannot be detained after that particular period of time.

MR JAMES:   That is our submission, Your Honour, essentially.

McHUGH J:   Now, how does that detainer obtain authority to detain the person further?  They do not get it under 212 unless there is a new arrest and it does not seem to me that, just simply by saying something to somebody, it can generate any new power of detention.  Does your case not have to require a fresh arrest?

MR JAMES:   I have put that against myself, Your Honour, on the basis that in this case they did say to him, “You are going to be charged.  Stay here.”, and then went away to do paperwork.  Now, that is the evidence of one police officer.  That question of fact was never left to the jury.  Indeed, in the Court of Criminal Appeal there was some difference between the view taken by Mr Justice Allen that up until 1.20 it seemed to him the Crown case was extremely weak on law and that there was an unlawful detention, and the views taken by Mr Justice Smart and Mr Justice Levine but the question of fact of what facts were sufficient to start the clock again was simply left to the jury in the context of what was in the mind of the police officers and what purpose they now had with no reference to there being any temporal cut-off defined by the physical acts, the surrounding circumstances, necessary to work out how long was long enough for the section to operate.

DAWSON J:   It is a situation which arises quite frequently in practice, is it not, not perhaps as starkly as here where the police say to a person, “Would you come along to the police station.  We want to ask you some questions?”, and prior to the current legislation, the police used to say, “Well, he’s free to go if he wants to.  We would have let him go”, and one always doubted that.  But there came a point when, as a result of the questioning, they formed an intention to charge him and at that point, clearly, he was under arrest, whereas, there was a grey area - perhaps not so grey - before.  But this is not unlike that situation.

MR JAMES:   It is not, Your Honour.

DAWSON J:   But once they have made up their mind to charge him and he is clearly not free to go, why is that not a point of time at which you can fix on?

MR JAMES:   It is a point of time you can fix on.

DAWSON J:   And at that time he is lawfully in detention.

MR JAMES:   If the jury decide that that is what happened.  But that was not left here, Your Honour.  Indeed, what Your Honour has described, the “Would you

accompany us to the station?”, is what actually did happen to this man, on one version of it.  At the start, he allegedly voluntarily accompanied them to the lift and then, in the most dramatic style, expressed his intent to accompany them no further and declined to submit to any arrest that was then occurring.

In South Australia, what Your Honour has said has been, in fact, held to be custody.  Leave aside whether it is lawful or otherwise, it has been held to be custody.

DAWSON J:   When?  They desire to come along - - -

MR JAMES:   The so-called voluntary submission.

DAWSON J:   Yes.  Well, I can understand that.

MR JAMES:   Your Honours, in Williams v The Queen, in a number of passages - - -

BRENNAN J:   We will hear from Mr Buddin.

MR BUDDIN:   May it please the Court.  Whilst it is readily conceded that section 212 of the Customs Act provides an important statutory protection so far as the liberty of the citizen is concerned, there - - -

BRENNAN J:   No, it does not confer a protection.  It confers a power to impair the liberty of a citizen.

MR BUDDIN:   I appreciate that, Your Honour.  There are four different reasons why special leave is opposed, albeit that there might be some overlapping between them.  The first is that the principles that govern the operation of the section, considered by this Court in Iorlano and in Williams’ case on a fairly similar provision under the Tasmanian Act so far as Williams was concerned and the principle is well settled.

The second reason is that the present case does not provide an appropriate vehicle for the grant of special leave because of the highly unusual factual circumstances that arise. 

BRENNAN J:   What are they?

MR BUDDIN:   First of all, the actions of the applicant in escaping from the custody were designed to frustrate rather than to further the purpose of section 212.

BRENNAN J:   But that has nothing to do with it, has it?  I mean, the question is whether or not the power conferred by section 212 was available to the police officers at the time when that event took place. 

MR BUDDIN:   Certainly, I would be submitting there was at that time.

BRENNAN J:   Well then, that is what you have got to make good.

McHUGH J:   One of my problems at the moment, Mr Buddin, is that the real issues do not seem to have been explored in the summing up.  There is just this aside at the end, after the Crown Prosecutor draws attention to what is a substantial issue but even then it is not explored, really.  Were the police intending to rearrest him?  I mean, one view is that this section could only be reactivated by - the power to detain can only be reactivated by a fresh arrest.  Did they intend to arrest him?  Was anything done objectively which would support it? 

MR BUDDIN:   What was said to him, the applicant, at about 12.20 - perhaps I can take Your Honours to the relevant passage.  I think the passage is as usefully set out at page 73 of the application book, about line 15, where Mr Justice Allen in the Court of Criminal Appeal was citing some of the facts, and he referred to the interrogation process of lasting from 11.45 am to 12.20.  His Honour indicates that there was an admission made and consequent upon the admission having been made, the interrogating officer said:

“I’m going to get some papers ready and you’ll be charged with possession of cocaine at Qantas yesterday.

And then he indicated that the applicant was to say with the officer whilst he started on the papers.  Indicated that he could have refreshment or go to the toilet if he wished to do so.  In my submission, it is capable of an interpretation that a rearrest occurred at that point.  There was an indication of the charge; there was an indication that he was under restraint and I think it is fair to say that there is no magic formula - I think those were the words introduced in England in - - -

DAWSON J:   In reality, what happened here was that something went wrong, did it not?  I mean, in the normal course of events, the police would say, “Well, we asked him to accompany us to the police station to answer some questions.  He did so.  As a result of those questions and answers, we formed the opinion that he committed an offence and he was thereupon arrested.”

MR BUDDIN:   Yes.

DAWSON J:   But, of course, that went wrong because - perhaps I should not say that.  That pattern was not followed because he attempted to escape and so they could not deny that he had been arrested at that point.

MR BUDDIN:   I am sorry, Your Honour, at which point?

DAWSON J:   They could not deny that he had been arrested - --

MR BUDDIN:   Originally?

DAWSON J:   - - - in a situation where, otherwise, if he had not tried to escape, they would, no doubt, maintain that he was merely there for questioning and was free to leave.

MR BUDDIN:   Yes, but the evidence is uncontradicted in relation to that.

DAWSON J:   Yes, of course.

MR BUDDIN:   The obligation is to make it plain to the suspect and it is trite law, Your Honours appreciate it, by what is said and done that he was no longer a free man and, in my submission, that is what occurred at 12.20.

BRENNAN J:   It occurred earlier, did it not?  He was arrested.

MR BUDDIN:   He was.

BRENNAN J:   Well, he was not a free man.

MR BUDDIN:   I was responding to what Justice McHugh said to me as to whether or not there was a rearrest at 12.20 by dint of what Detective Wilson said and did and communicated to the applicant, and the applicant’s subsequent actions indicated that he well knew that he was under restraint.  That is precisely why he was prompted to make his dramatic exit.

BRENNAN J:   Of course he knew that but, I mean, there is no question of rearrest, is there?  There was no thought on the part of the police officers that he was ever otherwise than under arrest.  He was there at the police station, having been arrested.

DAWSON J:   He had already tried to escape and they had stopped him.

BRENNAN J:   I mean, the problem simply is whether or not, if the time that was limited by section 212 expired, let us say, at 12 o’clock, he was at liberty to duck through the window from then on.

MR BUDDIN:   Yes.  Well, if he was at that time, my submission is that when the proper purpose for detention was resumed at 12.20, that he then was not entitled to duck through the window, and that is when he did duck through the window in the period after 12.20.

McHUGH J:   That is the point.  You have got to get some power then.  It is not sufficient that they have just got some purpose in mind.  Just having a proper purpose in mind does not enable you to detain somebody.  You have got to find a power either in the common law or in section 212, do you not?

BRENNAN J:   Do you not have to adopt the view that once they started to question him, section 212 ceased to operate so that there was no power flowing from that to retain him any longer for the purpose of questioning and that the power resumed when they stopped their impermissible purpose?

MR BUDDIN:   Yes.

BRENNAN J:   Well now, is that not a question of some importance?

MR BUDDIN:   In my submission, that, ultimately, is a resolution of a fact situation which this Court would not be interested in and, furthermore - - -

McHUGH J:   But there is an important point of principle involved, is there not, as to whether or not the purpose of the arresting officers and whether there is a need to communicate it if it is relevant, can reactivate a statutory power which, on one view, has become spent?  Well, these seem to me to be large questions concerning the liberty of the subject, together with the fact that the summing up does not really seem to me to get anywhere near what the real issues of the case were.

MR BUDDIN:   I am prepared to concede that later point.  Might I simply say that there was no redirection sought in relation to the direction that was ultimately given, and the Court has had things to say about that matter.

BRENNAN J:   Mr Buddin, when could this man have been brought before the court?  He was arrested at 10.30.  He arrived at the police station at 10.45.  In practical terms, when could he have been brought before the court?

MR BUDDIN:   That is a factual matter.  I do not have an answer based on the evidence.  But there was one singular feature of this case that might have occasioned the police officers time to ponder and that was what charge to prefer.  That had some significance because, as Your Honours are no doubt aware, there is a factual that the hammocks within which the cocaine was impregnated had been mislaid and they therefore raised the question as to whether the possession charge was appropriate but, more particularly, given what this Court said in Kingswell and Meaton and that line of country, the question as to whether or not a commercial quantity should be pleaded or a trafficable quantity.

DAWSON J:   But that does not matter, does it?  I mean, when you look at what should have happened and what did not happen in this case was that when the man said, “No, I’m not coming with you to answer questions.  I’ve changed my mind”, he should have been free to go.  The police could have pondered about the charge and made up their mind what they did; but that is what should have happened.

MR BUDDIN:   But they did arrest him at that time.

BRENNAN J:   And on what charge?

MR BUDDIN:   On both the Customs Act charge and the assault matters.

BRENNAN J:   Well then, they were obliged, on both counts, to take him on those charges before the magistrate.

MR BUDDIN:   Yes.

DAWSON J:   And at 12.20 pm they were in a position where they knew they could get him before the court at 2 pm, having regard to the fact that the court was closed between 1 and 2 pm, so it was not going to take long.  Presumably, the court was open in the morning.

MR BUDDIN:   Not by that stage.  Presumably, they had then been in contact with a legal representative of the informant and had discussed the appropriate charge and this Court had said, it is trite law, that time is allowed for the preferring of the charge and consultation with those that are going to represent the informant at court.

BRENNAN J:   What I cannot quite understand at the moment is if there is a holding in custody for an impermissible purpose, during a period in which it is impracticable anyhow to get the person before the court, what the significance is of the delay?

MR BUDDIN:   My answer to that depends again on what occurred at 12.20 and whether or not there was a resumption of the lawful purpose for the detention.

BRENNAN J:   Let us assume, contrary to your argument, that the time limited by section 212 would have expired, let us say, so far as the police work was concerned, at 11 o’clock.  Was there a court available?

MR BUDDIN:   Presumably.

BRENNAN J:   Does one know?  Is there any evidence of it?

MR BUDDIN:   I suppose, inferentially, from the fact that the police officer was going to get him before a court at 2 o’clock, he had made certain inquiries in that regard.  But I can say, if Your Honours accept it from the bar table, and it is obviously against my case, that there is a court that sits every day, a custody court, at Central, and that is where he was ultimately to be taken.

BRENNAN J:   If they were ready to go ahead at ll o’clock - - -

MR BUDDIN:   I am sorry, I cannot answer the question as to whether or not there was a court available at 11, hypothetically, but there was certainly a court sitting - there was a court complex that operated and was operating all day but I do not know whether they were available, and the evidence does not disclose as to whether they were available to take the matter at ll o’clock or any other time, for that matter.  I simply cannot answer that question on the evidence.

BRENNAN J:   And no evidence was directed to that issue?

MR BUDDIN:   No.  It seemed, on my reading of the material, that the issue that was really litigated was the improper purpose question and the cross‑examination was designed and was fairly successful in eliciting a helpful answer, one would have thought, to the applicant, so far as that was concerned.  But the question, what my learned friend accurately describes as the “temporal” question, really did not seem to enter into the arena and, with respect, my recollection is that it was not conspicuous in the argument in the Court of Criminal Appeal either.  Now, I am not seeking to make anything of that.  It is simply a case where there is a gap in the material.

BRENNAN J:   Yes.

McHUGH J:   The Crown case was the custody was always lawful.

MR BUDDIN:   It was always lawful and the alternative basis was that it resumed its lawful purpose at 12.20, and that was based both on principle, and the reliance was upon Banner, and sound policy reasons and a number of hypothetical scenarios were presented.

McHUGH J:   I must say Banner strikes me as a rather unusual case.  The idea that you can unlawfully arrest somebody, interrogate them and then get an admission from them, which would enable you to arrest, and then you can say, “Well, now, I’ve got reasonable grounds.  Therefore, what was unlawful 30 seconds ago - - -”

MR BUDDIN:   I am not seeking to rely on Banner for the factual situation but the larger principle that emerges, namely, that the character of the detention can change and that is what the Court of Criminal Appeal seized on.

There is one other basis upon which special leave is opposed. 

DAWSON J:   Just while we are on that point, if you really asked the question, why was he under detention at this stage, you do not give the answer, “In order to bring him before the justices.”  He was under detention because the police wanted him there, initially for questioning and it never changed the character of detention.  Really, that is the case against you, is it not?

MR BUDDIN:   I accept that but, with respect, that is not the evidence.  It may be that - - -

DAWSON J:   All the evidence is that they determined to charge him.  Well, did that change the character of the detention?

MR BUDDIN:   In my submission, it does.  But might I simply say that the other basis upon which special leave is opposed is that the situation is now governed by section 23 of the Commonwealth Crimes Act.  If the fact situation was to arise today, it would be covered by that and there would be no breach of the prevailing legislation.  That is another reason why special leave should be refused. 

Unless there is anything else that I can assist the Court with, they are my submissions.

BRENNAN J:   Thank you, Mr Buddin.  Yes, Mr James.

MR JAMES:   Just to the latter matter:  the case obviously has much wider significance than purely dealing with section 212 of the Customs Act and the federal sphere.  In addition to that, it is no real answer to a man who has been convicted of an offence of escaping lawful custody to say the legislature has not retrospectively, but has, enacted legislation so it will not happen to somebody else in the future.

BRENNAN J:   It may not be an answer to him but it may be quite relevant to the grant of special leave.

MR JAMES:   I appreciate what Your Honour says about that but none the less this matter has clear significance, as the submissions and the Court’s questions have shown, stretching much more widely than simply to the section 212 area.  It applies in all situations in which there is that combined purpose temporal element to the time within which a person may be detained.  This Court has looked, I think, in Pollard and Hetherington, at the question of whether there are split periods/combined periods.  It is not to be left, in our submission, in a circumstance where the lapse of time is, as it were, ignored solely because of purpose, or purpose diminished because of lapse of time.

Your Honours, in Williams’ case itself, which my friend mentioned at the outset, the Court in a number of passages has looked at both the matters, of purpose and lapse of time.  Williams, (1986) 161 CLR - - -

BRENNAN J:   I think we understand what the nature of the problem is, Mr James.  There was a couple of specific points that have been raised against you.

MR JAMES:   Your Honours, as to the evidence, there was evidence and substantial evidence though not precise evidence as to how long it would be necessary to take him before a magistrate to be dealt with and, indeed, it was elicited in the cross-examination of Mr Korn and that issue was squarely enough raised.  Simply by way of example - Your Honours do not have the transcript.  I can give Your Honours a number of transcript references.  The cross-examination of the police officer, Mr McFarland, at page 82:

Were you there when Mr Wilson did in fact interview him?---Yes.

Up until the point of time when he began to interview him, you had had enough time, had you not, to process Mr Michaels or to get him before a court or start to get him before a court?---Two hours would have been sufficient, yes.

And of course you knew - this is a Wednesday,is it not, a business day of the week?   That’s correct.

And of course, when you picked him up at the Remington Centre, you knew that only a couple of hundred yards down the road was Central Court?

They are, in effect, on the same street, only a couple of hundred yards from each other.

That’s correct. 

These courts, in terms of Magistrate’s Courts, were then probably located on levels 4, 5 and 6?‑‑‑That is correct.

And you do not say to his Honour or the jury that there was a lack of magistrates that came into the factor and prevented Mr Michaels from being taken -

HIS HONOUR:  I might interrupt you here, Mr Korn.

For example, you were at the Remington building, what, less than 5 minutes walk away.  Do the procedures permit you to come down to this building and just go into a court room or into the court office for the charge sheet?---No, your Honour.

KORN:  The procedure on arrest is that they have got to be physically taken somewhere so that the charge sheets can be prepared?

And it then goes on to the proposition that they go out to the AFPT & T Building and then back in again.  But, Your Honours, he could have been before a court within, one would assume, an hour; two hours, perhaps, at the longest, and the evidence of various of the witnesses makes it quite clear that that is the case.

As to the submissions, Your Honours, that were put in respect of the rearrest, that is a question that was never tried and should have been tried if it were a matter of legal significance which it was.  It is an appropriate vehicle, very much an appropriate vehicle because one cannot imagine one in which the point would be so starkly and clearly exposed and, indeed, the very fact that the summing up does not deal with the issue and the Court of Criminal Appeal does not deal with the issue shows that we have at least four judges that do not seem to appreciate - - -

DAWSON J:   You are running out of time, Mr James, but what do you say about the Crimes Act, 23C, if it is 23C?

MR JAMES:   That provides a regimen for the future but limited - - -

DAWSON J:   It is very odd then.  It says: 

If a person is lawfully arrested for a Commonwealth offence -

then you may detain him for questioning.  What does the word “lawfully” mean there in this situation?

MR JAMES:   Yes, that raises another problem.  We would not seek to complicate this case by extending it to that but we would say that 23C is no answer to the suggestion that this is not a suitable vehicle.

DAWSON J:   But it does raise a conundrum with section 23C because if you cannot arrest someone for the purpose of questioning, then you cannot have a lawful arrest for that purpose.

MR JAMES:   And the time has run.

DAWSON J:   And yet it says when a person is lawfully arrested he may be questioned and not take.....

MR JAMES:   The matter Your Honour Justice Brennan raised, that question of what of a coincidence between improper purpose and impracticability, which is a matter Your Honour has been concerned with since Collins’ case if I recall correctly, that is a matter that has to be considered but if the police choose to

advert to an improper purpose and to utilise the time for that purpose, how can they say they are properly starting the clock again?

BRENNAN J:   There will be a grant of special leave in this case.

MR JAMES:   May it please the Court.

AT 10.31 AM THE MATTER WAS ADJOURNED SINE DIE