Minhaj v The Queen

[2001] HCATrans 2

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P32 of 2000

B e t w e e n -

WAHEED RAHMAN MINHAJ

Applicant

and

THE QUEEN

Respondent

Application for order that matter should not have been deemed abandoned

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO BRISBANE

ON MONDAY, 15 JANUARY 2001 AT 12.01 PM

Copyright in the High Court of Australia

MR W.R. MINHAJ appeared in person.

MS J.A. GIRDHAM:   Your Honour, I appear to represent the Crown, the respondent.  (instructed by the Director of Public Prosecutions for Western Australia).

HIS HONOUR:   All right.  Mr Minhaj, just sit down for the moment, if you do not mind.  Would Mr Minhaj be allowed to sit down at the Bar table.  I am going to call on you first, Ms Girdham.  Do you oppose this application?

MS GIRDHAM:   Your Honour, the Crown does oppose the application, yes.

HIS HONOUR:   Why?

MS GIRDHAM:   In this instance, your Honour, it is the case that the Crown is not neutral and does oppose the application.  The Crown concedes that your Honour has the power to extend time, either under Order 60 rule 6(2), alternatively, in the Court’s inherent power, and I accept that should your Honour dismiss the application today the applicant has lost an opportunity to have the matter examined by more than one Justice of this Court.  In the Crown’s submission, this situation in relation to this application is such that your Honour has no material from the applicant that strict compliance with the rules would work an injustice upon him.  …..the applicant has not filed his outline of argument or draft notice of appeal.

This is not, in the Crown’s submission, akin to a situation where, for example, all the documents save for the appeal book have been lodged.  Simply put, there is at present no documentation purporting to identify any error on the part of the Court of Criminal Appeal, a unanimous decision, that would give rise to a question of general public importance such as to grant special leave.

HIS HONOUR:   Yes, but you cannot ask me as a Judge sitting alone to decide, in effect, the application for special leave, Ms Girdham.

MS GIRDHAM:   Your Honour, that is so and especially in a case where no questions have been posed which are said to give rise to special leave, a situation ‑ ‑ ‑

HIS HONOUR:   How long out of time is Mr Minhaj?

MS GIRDHAM:   Your Honour, the application was filed and his submissions filed – in fact, have got the wrong date.  The application was filed on 4 April 2000, of itself out of time.  The appearance was filed, and the applicant’s summary of argument and draft notice of appeal, on 2 May.  On 18 August, the six months pursuant to Order 69A was up, but time was extended, as I understand the position, to enable the time to run outside that six months.  On, I believe, 20 October correspondence was annexed to the respondent’s submissions.  Mr Minhaj was told in express terms as to the outcome of the failure to comply within the extended period up to ‑ ‑ ‑

HIS HONOUR:   He has sworn an affidavit that he had a cancer removed by an operation.  Have you seen that?

MS GIRDHAM:   Your Honour, I have seen that, yes.

HIS HONOUR:   And English is not his first language.

MS GIRDHAM:   Yes, your Honour.

HIS HONOUR:   And he has had nobody to assist him with advice or otherwise.

MS GIRDHAM:   Your Honour, I note all of that, but your Honour has no doubt seen the submissions and I do not think I can take it any further than what the written submissions say.  The situation is ‑ ‑ ‑

HIS HONOUR:   Before you sit down, Ms Girdham, I could impose terms; is that correct?  There is no reason why, if I were to make an order that the application be deemed not to have been abandoned, I could do so on terms; is that right?

MS GIRDHAM:   It is the case, as I understand it ‑ ‑ ‑

HIS HONOUR:   And what needs to be done then, Ms Girdham?  Can you assist me on that?

MS GIRDHAM:   Everything, your Honour.

HIS HONOUR:   The only thing that has happened is the application for special leave has been filed; is that correct?

MS GIRDHAM:   That is correct, your Honour.

HIS HONOUR:   So that the next step would be the filing of an outline of argument; is that right?

MS GIRDHAM:   An outline of argument and the draft notice of appeal and also, of course, identifying issues opposed which are said to give rise to questions of special ‑ ‑ ‑

HIS HONOUR:   Well, that should all be done in the outline of argument, should it not?

MS GIRDHAM:   Your Honour, yes.

HIS HONOUR:   All right.  Then the next step is the filing of an application book, is that correct, settling of an index?

MS GIRDHAM:   The next situation perhaps the applicant would need to attend to is the filing of the application book.

HIS HONOUR:   All right.  Thank you, Ms Girdham.

MS GIRDHAM:   Your Honour, if I could just add one thing, and that is in the circumstances of this matter it is the case where, apart from the deemed abandonment, a certificate has issued from the Registry.  It is the case that the complainant, the victim in the proceedings, believes the matter to be at an end and ‑ ‑ ‑

HIS HONOUR:   I am sorry, speak up.  I did not catch that.

MS GIRDHAM:   It is the case that in this instance a certificate of deemed abandonment has been filed or put about by the Registry and it is the situation where the complainant in the proceedings has been told that at this point in time the application is at an end.  I simply raise that in relation to your Honour’s discretion as to the power to extend time.

HIS HONOUR:   What has that to do with it?  Why is that relevant?

MS GIRDHAM:   Well, in so far, your Honour, as I believe the judgment of Justice McHugh in Gallo v Dawson where he indicates that there is an interest – that the defendants had an interest in relation to the matter being dealt with finality.  Now, albeit ‑ ‑ ‑

HIS HONOUR:   No, I understand that.  What is the reference to that case, Ms Girdham?  Gallo’s, is it?

MS GIRDHAM:   It is Gallo v Dawson 93 ALR 479.

HIS HONOUR:   I do not have that.  Just read what his Honour said, would you mind, please, relevantly to this?

MS GIRDHAM:   His Honour stated:

The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties –

I will omit the citations, if I may –

This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.  When the application ‑ ‑ ‑

HIS HONOUR:   Was this a civil appeal or a criminal appeal?

MS GIRDHAM:   It was a civil appeal, and I accept that there is a difference, your Honour.

HIS HONOUR:   All right.

MS GIRDHAM:  

When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal.  It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted.  It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

Your Honour, in relation to the submission I made earlier, if I can advance that.  The respondent submits that the community and the respondent in this instance, also the complainant, has a vested interest in having these matters dealt with expeditiously, that is, an interest in seeing that criminal proceedings are determined without delay.  Your Honour, there has been considerable delay, in fact, delay was in the face of knowledge of the consequences of the delay, and your Honour is not in a position to look as to the merits of the appeal because, simply put, there is no application or no question is posed before your Honour at the moment.

The applicant’s conviction and sentence was upheld by the unanimous decision of the Court of Criminal Appeal on 7 March 2000 and, of course, the applicant has no right to appeal to this Court unless and until special leave is granted.  In this instance the respondent and, indeed, the complainant have been told that the application has been abandoned and a certificate has been issued to that effect.  It is not, as the Crown’s submission was earlier, akin to the situation where the battle grounds were drawn.  We simply do not know what are said or proposed to be a special leave question in relation to this matter.

I have looked at some transcripts in relation to abandonment and the deeming provision.  Most of those, in my submission, relate to an issue of where there has been a failure to file an application book, that is, further down the track in relation to the progression of the application.  This situation does not exist in this case.  We simply have not got to the first step in the process.  The delay was considerable.  There is no explanation – there is an explanation for difficulties encountered, but it is clear that the applicant was previously legally represented.  It is not clear as to why he is no longer legally represented or, indeed, what information was given to him.

It is fair to say that in correspondence addressed to the office of the DPP, that strict compliance is viewed most seriously is emphasised in that correspondence, and that is certainly the case in relation to the letter that was sent to the applicant in relation to these proceedings.  Your Honour, chronology indicates delays from the outset and, in the Crown’s submission, there is no justification or explanation for delay.  Your Honour, unless I can assist you further ‑ ‑ ‑

HIS HONOUR:   No.  Thank you, Ms Girdham.

MS GIRDHAM:   Thank you, your Honour.

HIS HONOUR:   Mr Minhaj, would you come to the rostrum.

MR MINHAJ:   Yes.

HIS HONOUR:   Mr Minhaj, I am minded to grant an extension, or I am minded to make an order that the application be deemed not to have been abandoned, but upon terms, that is to say I would impose conditions on you that you comply with the rules in a fairly short period of time.  Do you understand what I am saying?

MR MINHAJ:   Yes.

HIS HONOUR:   Well, you would not want to add anything in those circumstances, would you?

MR MINHAJ:   …..saying that you are going to grant time?

HIS HONOUR:   Yes.  I would expect you to comply with everything, which you have not yet done and need to do at this stage, by 14 February 2001.

MR MINHAJ:   Okay.

HIS HONOUR:   All right, thank you.  You can sit down, Mr Minhaj.

MR MINHAJ:   Thank you very much.  Thanks.

HIS HONOUR:   This is an application for an order that the application made by the applicant for special leave to appeal to this Court be deemed not to have been abandoned.  The applicant has so far failed to comply with the rules relating to applications for special leave to appeal.

I do not overlook the gravity of the offence of which the applicant has been convicted nor the apparent strength of the evidence which led to the conviction, nor do I overlook another relevant matter that the victim has been informed that the application has been deemed to have been abandoned.  Notwithstanding these matters, because the applicant has been ill for a period during which he should have complied with the rules relating to the application and because the first language of the applicant is not English, I am prepared to make an order that the application be deemed not to have been abandoned but upon terms, strict compliance with which will be necessary.

I order that the application for special leave to appeal to this Court be deemed not to have been abandoned provided that the applicant file an outline of argument and draft notice of appeal in accordance with the prescribed forms by, on or before 14 February 2001.

Ms Girdham, is there anything else that I should make an order about or ‑ ‑ ‑

MS GIRDHAM:   Your Honour, I had understood that the applicant was to comply and file all necessary documents.  Is your Honour of the view that it is only the outline of argument and the draft of notice and then, of course, the Crown would have 21 days to then respond and then, of course, we have the appeal book situation, or is your Honour of the view that perhaps the final end date in relation to all matters to be undertaken by the applicant could be given a date?

HIS HONOUR:   Well, I thought not, Ms Girdham, although I am open to persuasion, because if he does not file by 14 February then, again, the application would be deemed to have been abandoned; is that not so?

MS GIRDHAM:   Your Honour, that would appear to be the case ‑ ‑ ‑

HIS HONOUR:   And then the ordinary rules will apply.  Assume that he does comply, that he files by 14 February, then you would put in your reply within 28 days.  Then if the next step which he should take is not taken, then the application would be deemed to have been abandoned then, would it not?

MS GIRDHAM:   Your Honour, I am in some difficulty in relation to that because there has been an extension in relation to the outcome but not in relation to the appeal…..six months, yes, you are right. 

HIS HONOUR:   All right.  Well, I will impose another condition.  I will make a further order.

I would further order that there be another condition and that is that the applicant otherwise comply in all respects with the rules relating to applications for special leave to appeal to this Court.

Then that covers this situation, I think, Ms Girdham, does it not?

MS GIRDHAM:   Your Honour, yes.  Perhaps in relation to the third order, if we could have a date as to which he must comply on the assumption that the Crown will comply with the 21 day ‑ ‑ ‑

HIS HONOUR:   All right.  Well, how long would he normally have for a reply?  Well, no, I do not want to make – the ordinary rules will apply.  Whatever the time is within which a reply should be filed, he must do that because I have made an order that he must comply in other respects and then whatever the rules are in relation to an index, he must also do that, because I have made an order that he comply in all respects with the conditions and I would wish to make it clear that the ordinary times which apply to all further steps will apply to the steps that have to be taken after the filing of the outline of argument and draft notice of appeal.

MS GIRDHAM:   Thank you, your Honour.

HIS HONOUR:   I think that makes it clear.

MS GIRDHAM:   It does, your Honour.  My query was only to the extent that Order 69A, I think, rule 13 talks in terms of six months, but your Honour has now made it perfectly clear.

HIS HONOUR:   Yes, all right.  Thank you, Ms Girdham.  All right.  There is nothing further, is there?

MS GIRDHAM:   Your Honour, no.

HIS HONOUR:   Thank you, Ms Girdham.

AT 12.20 PM THE MATTER WAS CONCLUDED