Milat v Att-Gen for NSW

[1995] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S142 of 1995

B e t w e e n -

IVAN ROBERT MARKO MILAT

Applicant

and

ATTORNEY-GENERAL FOR NEW SOUTH WALES

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 NOVEMBER 1995, AT 11.46 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:If it please your Honours, I appear with my friends, MR T.D. MARTIN and MR R.J. BRENDER, for the applicant.  (instructed by Boe Hogan & Callaghan)

MR K. MASON, QC, Solicitor-General for the State of New South Wales:   I appear with my learned friend, MR C.L. LONERGAN, for the respondent.  (instructed by I.V. Knight, Crown Solicitor for the State of New South Wales))

DAWSON J:   Yes, Mr Walker.

MR WALKER:   Your Honours, seen one way, the application on behalf of Mr Milat was for the self-evidently difficult task of persuading a court that there should be a stay on the ground of apprehended lack of representation when there was an extant offer of representation.  A better view, in our submission, of the case is one which focuses on the underlying principle of which Dietrich is but one example by lack of representation, that underlying principle being it is not only after a criminal trial and a conviction but also before a trial that the court may exercise its supervisory function in the name of unfairness to, in advance of a trial, stay permanently or conditionally the process which it would otherwise be its duty to continue and conclude.

In our submission, the Court of Appeal has in particular identified matters which might be regarded from one point of view as invidious or difficult to be judged as if they were matters which ought, therefore, not inform an application for a stay.  In our submission, the well‑established, although exceptional, jurisdiction to overturn a conviction for miscarriage by reason of incompetent or otherwise inadequate legal representation actually afforded in light of the actual conduct of the trial establishes that a court cannot, as it were, disavow the unpleasant or invidious task of ruling upon the nature of legal representation.

In principle, therefore, in our submission, this case raises for possible extension what was enunciated by this Court in Dietrich from cases of no representation, that is, actual lack of representation through one set of circumstances or another, to cases where there could be representation.  The way we put the case as one for special leave then turns into two matters in particular.  Firstly, the way in which the Court of Criminal Appeal approached the findings and conclusions of the trial judge on what we would submit are matters of fact and discretion and, second, the way in which we put the principle as an extension so as to attract a special leave quality of transcendent importance over and above the merits of this case.  The trial judged considered detailed evidence ‑ ‑ ‑

DAWSON J:   Why should this Court interfere at this stage?

MR WALKER:   Because, your Honour, the preventative jurisdiction is a salutary one which trial judges are faced with, if not every day, then very often.  It is a jurisdiction which ought not to be regarded as somehow lesser in quality than the jurisdiction to look back at a conviction for miscarriage and, accordingly ‑ ‑ ‑

DAWSON J:   Is that so in this Court?  I mean, that may be so in the courts below, but why should this Court, which proceeds to consider a matter of principle, hold up a trial which may or may not have a particular result?
MR WALKER:   Ordinarily, your Honour, for the same reasons as would apply, for example, with respect to prerogative relief, this Court would be chary of establishing what might be called a pattern of interruption or interference with a criminal process in such a way as both to extend delays and to fragment the process.  We do not of course contend that that is not the proper approach in an ordinary setting.  But this is a case which for the first time, in our submission, raises matters of principle which are peculiar to this preventative jurisdiction to the preventative strike in advance of a trial rather than ‑ ‑ ‑

DAWSON J:   Why is it peculiar?  What the Court of Appeal has said is that this man has not been denied proper legal representation.  That may or may not be right, but on that basis the trial will proceed.

MR WALKER:   If it is wrong or was determined by the Court of Criminal Appeal on wrong principles, in our submission, this Court would view as peculiarly attractive of special leave the prospect of a man going to a trial for these charges and with such a burdensome trial and would not regard it as the ordinary case of the possibility of interlocutory error being corrected at the end of the day.

DAWSON J:   He may be acquitted.

MR WALKER:   He may be acquitted and that is a possibility which simply cannot be considered at the present, your Honour.  We are talking about the preventative ‑ ‑ ‑

DAWSON J:   He may be convicted.  But the point is why should this Court at this stage hold up the process to test a point of principle which has been determined in the court below and which, if it has wrongly been determined, may ultimately be put right?

MR WALKER:   Because of the extraordinary burden of this particular trial.

McHUGH J:   Speaking for myself, I do not want to lead you to think that I might be in favour of the view that this Court should ever second‑guess the Court of Criminal Appeal as to whether an accused person was competently represented.  The Court of Criminal Appeal is in a far better position than this Court to say ex ante whether or not that is the case.

MR WALKER:   Your Honour, that may certainly be the case with the backwards look after a trial has been concluded.  In our submission, there are powerful reasons why, if that were this Court’s view of its own role in relation to the Court of Criminal Appeal, a similar, if somewhat different, relation existed in this case between the Court of Criminal Appeal and the trial judge.

TOOHEY J:   But is there not a problem in identifying any question of principle here, Mr Walker, because in the end, as I understand it, what the Court of Criminal Appeal said was that there are various options upon which legal aid would be provided.  The trial judge opted for one.  The Court of Appeal said that there was no sufficient reason for excluding one of the other options which would have involved a lower level of expenditure.  That no doubt oversimplifies the matter, but where is the question of principle involved here?

MR WALKER:   First, your Honour, it does, with respect, oversimplify the matter because there is another issue upon which also the Court of Criminal Appeal disagreed with the trial judge, namely the extent to which it was reasonable to, in effect, leave Mr Milat with the alternative of a Legal Aid Commission solicitor.  Leaving aside the question of fact, in our submission, however the facts are determined, the question of principle is still raised ‑ ‑ ‑

McHUGH J:   But what is the question of principle?  With all your facility for argument, I have not heard you identify it yet.

MR WALKER:   The identification of the principle, your Honour, is whether or not - the extension for which we contend is whether or not it is only on the ground of an actual lack of representation that there ought to be a stay of a trial yet to be held - and we emphasise that this is about the preventative jurisdiction, not the appeal against conviction - or whether there are other circumstances, absent abuse of process, of course, which could justify a stay.

McHUGH J:   But am I right in thinking that the Court of Criminal Appeal held that having regard to what has been offered, this accused can get competent legal representation?

MR WALKER:   Yes.  Now, the first part - as I said, there were two parts to our argument for special leave.  The first part of our argument must necessarily engage with that finding of the Court of Criminal Appeal.

McHUGH J:   That is a finding of fact.  How could this Court - judges come from all over Australia - say that an accused person of a particular State has or has not got competent legal representation before the trial?  Now, after the trial we might be able to say, by reason of what happened at the trial, he is a person who did not have competent legal representation.

MR WALKER:   For the very reason your Honour raises as a feeling which the Court may or may not have, that is, a self-imposed inhibition on imposing an Australian view on what may be a local issue, even if that were the case, in our submission, that very motive is one which, in our submission, suggests special leave for the way in which the Court of Criminal Appeal approached the trial judge’s finding because, in my submission, even more so it was the trial judge who was in a uniquely advantaged position to assess for the particular trial, where his Honour had a grasp of all the circumstances far more intimately than anyone else, as to whether or not what was on offer was in all the exceptional circumstances enough to threaten the possibility of an unfairness which, to the public interest in the administration of criminal justice, ought not to be permitted.  Now, in our submission, the very same inhibitions the High Court may or may not feel is one which, slightly transformed, ought to have been the approach of the Court of Criminal Appeal.

McHUGH J:   But consider this:  Justice Toohey is from Western Australia; Justice Dawson from Victoria, they would be in a very difficult position to determine whether or not this accused could get competent legal representation in New South Wales.

MR WALKER:   We do not embrace that at all, your Honour.  In our submission, it is self-evidently wrong to suggest that in Western Australia or Victoria there is either a culture or a practice with respect to the fairness of trials as to the adequacy of legal representation which is somehow different from New South Wales so as to disable their Honours from passing upon ‑ ‑ ‑

McHUGH J:   This is all about money, is it not?  It is about a differential of a few hundred dollars a day.

MR WALKER:   First, it is not all about money; second, money is an important part; and third, the differential of what your Honour calls, a few hundred dollars a day, of course, extends to an extremely large sum over the expected life of this extremely difficult trial which, of course, involves preparation as well.  So it is not a case about a few hundred dollars a day.  It is not, as it were, an industrial work-value case.  It is, in our submission, a case where the Court of Criminal Appeal overturned the very experienced trial judge’s assessment of matters which are of themselves, by their very nature, difficult matters involving, what this Court called in Craig, discretionary judgments. It is not a discretion in  ‑ ‑ ‑

McHUGH J:   But the Court of Criminal Appeal identified errors in the trial judge’s judgment.

MR WALKER:   Your Honour, they identified errors, so‑called, in such a way as not to permit any non‑partisan onlooker or even Mr Milat if, as we urge, his viewpoint is central, so as not to permit any of them to say, “Well, the trial judge’s assessment that Mr Milat’s perception of, for example, the unfairness of being forced to take Legal Aid Commission solicitors” was without substance.  There is simple disagreement on a range of matters upon which there could not, with respect, be a uniquely correct result, bearing in mind the vast array of detail which his Honour considered, the length of period of dealings which his Honour traversed and the extremely difficult final conclusion as to the degree of trust which Mr Milat was justified in having lost in the Legal Aid Commission, for example.

TOOHEY J:   But that in a way only points up the inappropriateness of special leave in this case, I think, Mr Walker, because in effect, if we granted special leave and the matter proceeded to appeal, would we be doing any more or asked to do any more than be another court of review?

MR WALKER:   No, your Honour.  We accept of course that the more we point to complicated facts, the more we talk about matters of detail, the more the case would appear to be a one‑off, not normally attractive of special leave.  We seek to turn that to our advantage in this way.  It was precisely those factors, bearing in mind that it was the intended trial judge who had reached those conclusions against those difficult matters of detail, which should have prevented the Court of Criminal Appeal acting upon mere disagreement.  There was no, as it were, Wednesbury denunciation of his Honour’s findings to say that no reasonable trial judge could have come to those conclusions.

McHUGH J:   But that is their function.  They were not exercising judicial review, were they?

MR WALKER:   No, but the appellate function notoriously includes appropriate appellate reticence where matters of practice or procedure or matters where perception of what is happening or may happen at trial have been decided by the trial judge.  Though probate and the like may be a long way from crime, the New South Wales authority in Re the Will of Gilbert is simply one well‑known label for a form of appellate reticence which was, in our submission, clearly not observed by the Court of Criminal Appeal in this case.  It is for those reasons that the matters of factual detail and what might be called the highly exceptional nature of the case, which I could not possibly gainsay, are matters which should attract special leave because they have resulted in the Court of Criminal Appeal overturning an extremely important set of conclusions by the trial judge who, after all, was the one who saw the evidence including the cross‑examination of a senior officer of the Legal Aid Commission.

In our submission, that is why those factual matters, far from having what would otherwise be a detracting effect from a special leave application, positively engage this Court in the need to vindicate what the trial judge did, it being a primary role for trial judges to assess these questions of impending or threatened unfairness.

TOOHEY J:   That may well be right, but if the final court for the State - in this case the Court of Criminal Appeal - takes a different view of those factual matters, it is hard to see on what footing this Court should step in and grant special leave to appeal when, as I see it and despite what you have said, our function would be largely to, as it were, choose between the view taken by the trial judge and the view taken by the Court of Criminal Appeal.

MR WALKER:   Ultimately, of course, your Honour, that would be the choice posed by an appellant/respondent if leave were granted, but it would not come down to a simple matter of choice.  In our submission, it would come down to a preference for an appellate approach which recognises the peculiar advantages that ought to be recognised the trial judge enjoyed.  But beyond that, because those are well‑established matters of appellate approach, and special to these cases, the fact that once a trial judge, particularly one, with great respect, of Mr Justice Hunt’s standing, has publicly pronounced, for example, the dealings between the Commission and Mr Milat were a dismal story with the other epithets which your Honours have read and the Court of Criminal Appeal not really departing from that, once a trial judge has held that those matters justify Mr Milat in a feeling of the unfairness in being effectively forced to have those solicitors, then that is a matter of both perception of Mr Milat and public perception by a non‑partisan onlooker of the trial which goes beyond the ordinary run of appellate cases where the intermediate Court of Appeal ought to recognise that ‑ ‑ ‑

McHUGH J:   But it is not a question of perception at all, is it?  It is a question of whether or not the accused will get a fair trial having regard to the quality of his legal representation.

MR WALKER:   The quality of legal representation, your Honour, is something which necessarily involves perceptions as well as substance.

McHUGH J:   It may.

MR WALKER:   Any preventative jurisdiction depends upon a perception of a trial judge that, for example, a policy of the Legal Aid Commission to allow only junior solicitors - and this is of course an invented example - to appear as advocates without any assistance on serious trials on indictment.  It would be obviously perception only that said that that was an inadequate provision of representation because it may well be that Marshal Halls of the future are thus discovered.

McHUGH J:   I am not sure.  I happen to hold the view that barristers do not improve much after a couple of years, Mr Walker.  They might get a bit more experience, but a good barrister is identifiable on the first day he or she stands up in court.  They may get experience but they do not really improve much.  In fact, there is some evidence that it is downhill all the way after that.

MR WALKER:   That may be why, your Honour, a Western Australian/Victorian perspective may be a valuable one.

TOOHEY J:   I would not want you to think that that is the unanimous view of the Court, Mr Walker.

MR WALKER:   No, your Honour.  Your Honours, for those reasons, in our submission, the principle which is the extension is one where there ought to be a possibility of apprehended unfairness which is always a matter of perception in advance because it cannot yet be adjudicated where the identity or source of the lawyers, their numbers perhaps, certainly their remuneration in an appropriate case, a matter recognised by the Court of

Criminal Appeal but only in passing and thus not established, matters such as resources for preparation, all in a context where threatened disparity of resource between prosecution and defence will provide an important backing and where questions of market will always be relevant, those, in our submission, are matters which are apt for this Court to consider, it being clear that the political and social consideration of those matters ought not to be unaccompanied by or unchecked by this Court looking at the matters, bearing in mind that it is ultimately for the courts and not other organs of government to be determining what is a fair trial within the law.  May it please your Honours.

DAWSON J:   We need not trouble you, Mr Solicitor.

This application is brought at an interlocutory stage of the applicant’s trial.  This Court has frequently indicated its reluctance to intervene in the trial process at such a stage by granting special leave to appeal.  In any event, this application raises no point of principle which would attract the appellate jurisdiction of this Court.  Special leave to appeal is accordingly refused.

AT 12.06 PM THE MATTER WAS CONCLUDED