Morgan v The Queen

[1993] HCATrans 297

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~	Jal.I.
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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl39 of 1993

B e t w e e n -

RONALD ALFRED MORGAN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J TOOHEY J

Morgan 1 8/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 10.29 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 C.R.M. Neave,

Managing Director, Legal Aid Commission (New South

Wales))

MR K. MASON, OC, Solicitor-General for New South Wales: I

appear with my learned friend, MR P.J.P. POWER, for

the respondents, in this and the next matter.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

MR JAMES:	I should indicate to the Court that this and the next matter are linked matters, arising from the
same trial and concerning the same point.

MASON CJ:  Yes. But you have an additional point that you

are arguing in Morgan?

MR JAMES: 

Morgan, and that is the question of the nolle

prosequi and the interpretation of the Director of
Public Prosecutions Act.

MASON CJ: Well, if that is all that that point involves,

yes.

MR JAMES:  No, that is not all that it involves but that is

the substance, if I could put that to Your Honour.

Your Honour, may I hand to the Court - I have

prepared a summary of argument in respect of both

points in respect of the matter of Morgan, which

have been provided to my learned friend.

TOOHEY J:  Is that the document we already have in the case of Morgan, Mr James?

MR JAMES: It may well be, Your Honour. It was sought to

file it in advance and it may have been that it has

been circulated to the Judges.

MASON CJ: Yes, we have it.

MR JAMES:  Your Honour, there is an application for an

extension of time in this which arises because of

apparent inaction having been taken.	I understand
that is not opposed.	I have obtained an affidavit

from the Legal Aid solicitor, if the Court would

wish me to file that, in explanation of what she

has learned about the delay in this matter.

MASON CJ:  Can you explain to us very shortly what the delay

was; the reason for it?

MR JAMES:  The delay, in short, was that the matter was in

the hands of a firm of solicitors for the purposes

of an application for legal aid and to put the

Morgan 2 8/10/93

documents on. Nothing happened. Legal Aid took it

back over itself and from that time on the matter

has proceeded expeditiously.

MASON CJ:  The application for an extension of time is

granted.

MR JAMES:  May it please the Court. Your Honours, the short

summary of the points we seek to make in Morgan is

that what happened, both procedurally and in the

upshot at the trial, was a matter characterized by

the trial judge as monstrously unfair. He felt he

had no power to deal with that matter because he

was precluded from any exercise of discretion.	He
was precluded from any exercise of discretion

because he had taken the view that leave had been

granted to amend by a judge before whom the matter
had come previously or, alternatively, that the
prosecutor had an absolute right to present a new

indictment, a substituted indictment, and to

uplift, as it were, the former indictment.

That view of his was upheld by the Court of

Criminal Appeal. So that the exercise of the

weighing or balancing process, in terms of whether

there was or was not a procedural abuse or an

unfairness at trial was, in effect, never

undertaken.

MASON CJ:	What do you say should have happened?
MR JAMES:	What should have happened, if the Crown had wanted to proceed by way of getting rid of the old
indictment, was the filing of a nolle prosequi.
That would have involved a consideration, not by
the Director of Public Prosecutions but by the
Attorney-General, and the procedure that is adopted, in effect, avoids the Attorney-General and
the filing of a nolle prosequi.
MASON CJ: Let us assume for the moment that the statute

delegates to the DPP the Attorney-General's power

to file a nolle prosequi.	What then would have
been the position?

MR JAMES: At that point the nolle prosequi is in no other

condition to indictment. It comes before the

courts. The question of what course the court

would take is no different from the nolle prosequi

than it is from any other pleading and the court

can utilize the doctrines relating to abuse of

process as it has in Queensland when resort has

been made to the nolle prosequi for, in that

case -

MASON CJ: This is Gill's case you are referring to?

Morgan 3 8/10/93

MR JAMES: There is Gill and there are other cases in

Queensland.

MASON CJ:  But you did not put it on that basis, did you,

before the trial judge?

MR JAMES:  No, not before the trial judge because the

argument was that the present procedure that was

adopted could not be adopted, ie, that the accused

was on his trial for manslaughter and the trial

should go ahead.

TOOHEY J: But you did not put the argument to the Court of

Criminal Appeal either, did you, in the form that

you are now putting it?

MR JAMES:  No, Your Honour, because it is the second step.

The Court of Criminal Appeal were against us on the

proposition and, indeed, very simply, were in

favour of the basic proposition, that is, that the

section was wide enough for the OPP to do what he

was doing, and he had a right to do it, and that

was the end of it.

DAWSON J: But there never was a nolle prosequi, was there?

MR JAMES:	No, Your Honour.
DAWSON J:	Even assuming that the OPP had power to file one.

It never went before the court?

MR JAMES:  No, if the section gave to the OPP power to file

a nolle prosequi, he did not do so.

MASON CJ:  It seems to me that that is the problem with the

submissions that you have made all the way up to this point, that you have not clearly recognized that there was a failure on the part of the OPP,

assuming that the OPP had power to file a nolle

prosequi, to file a nolle prosequi. That really,

it seems to me, on what you are now saying, is the

crux of your argument.

MR JAMES:  On what Your Honour has put to me, yes.

DAWSON J: Can I just add one other thing: an alternative

would have been, just to complete the picture, to

apply to amend the indictment for manslaughter, and

that would have required the leave of the court.

MR JAMES: That actually, Your Honour - it was submitted to

the trial judge and in the Court of Criminal Appeal

was the proper course to take.

MASON CJ:  Yes. I gather that that is what you did put in

the courts below.

Morgan

8/10/93

MR JAMES: 

It was consistently put that the court was seized

of jurisdiction by the presenting of the
indictment, the filing of the indictment, the

arraignment of the accused.

DAWSON J: 

The arraignment was the commencement of his

trial.

MR JAMES:  And the arraignment was the commencement of his

trial.

DAWSON J:	And if there had been an amendment, he would have been rearraigned before the same jury, probably,
and the trial would proceed.

MR JAMES:  Or whatever. But the importance of the amendment

is it sounds in the court's discretion and there is

not a right to come to the court and say, "We insist on the substitution of this charge for that", and the court can take into account in the

exercise of discretion all the matters that it

could take into account in relation to the doctrine

of abuse of process.

MASON CJ: So, you say that what happened was that neither

one of these two courses was taken and, as a
consequence, the court was, in a sense, deprived of

the power that it had either to exercise a

discretionary judgment to grant or refuse leave to

amend or, alternatively, to exercise its power to

prevent an abuse of process, if there was an abuse

of process?

MR JAMES: Yes, Your Honour.

TOOHEY J:  Does that power, Mr James, begin from the moment

of arraignment?

MR JAMES: No, Your Honour. It begins earlier. It begins

from the moment at which the court has

jurisdiction. In the case of the supreme court, it

being a superior court of record, its jurisdiction

is ever present and may be invoked once the

pleading is filed, that is the indictment is before

it; in the subordinate court, questions may arise

of some technicality, and that has been adverted to

in some of the cases on abuse of process but need

not concern this Court with this matter.

TOOHEY J:  It may be my own unfamiliarity with New South

Wales, but when you say "the indictment is before

it", in this case the presentation of the

indictment and the arraignment occurred

simultaneously, did they not?

Morgan 8/10/93

, I

MR JAMES:  I suppose, Your Honour, my reaction to that is

that I should outline very quickly what is the

current procedure in New South Wales.

MASON CJ: Yes, that would be helpful.

MR JAMES:	The Director of Prosecutions or an officer of the Director of Public Prosecutions exercising the
delegated power finds a bill of indictment. The
defence are notified by reason of a draft document
being sent to the defence; the draft document
enabling them to make pre-trial applications by way
of demurrer and such like. It is a little unusual
to be demurring to somebody's draft but, none the
less, that is where it stands.
TOOHEY J:	Is that purely an administrative step or is that

somehow authorized by the statute?

MR JAMES:  No, it is authorized, Your Honour, but it is

apparently an administrative step. It is not the
founding of jurisdiction of the court. At some

point of time, the matter is listed by the

independent listing directorate. It comes before a

judge, and at that point of time the actual

indictment is handed up and, indeed, the words that

are used is, "I hand up an indictment". The

accused is thereupon called upon to plead to that

indictment.

MASON CJ: After the counts in the indictment are read out?

MR JAMES: That is so. It bears all the ear-marks of an

arraignment.

TOOHEY J: That is what the point of my statement was.

MASON CJ:	Why is it not an arraignment?
MR JAMES: Because for some peculiar reason, Your Honours,

the Court of Criminal Appeal, at page 19 of the

application book of Morgan, appears to conceive of

some sort of different procedure at line 25 and

onwards. There appears to be:

an indictment presented for the purpose of and

with the intention of going to trial. Where

an arrangement is made to list a matter on a

particular occasion so that a plea of guilty

may be taken and where an indictment is framed

and presented only for the purpose of allowing

that to be done.

DAWSON J:  It still must be an arraignment because that is

where the issue is joined.

MR JAMES:  It is our position it is an arraignment.

Morgan 6 8/10/93

DAWSON J: In putting the matter in charge of the jury, is

that a separate step?

MR JAMES:  Not according to the statute, Your Honour.

TOOHEY J: But it was, in fact, here, because the

arraignment, in the sense you are using it, took

place in November and the trial was not to take

place until January the following year.

MASON CJ:  The jury was not even empanelled.

MR JAMES: Indeed, I should point out that looking at the

older common law procedure which still exists in

South Australia, for instance, there is an

arraignment day on which all of those before the

supreme court are brought in and arraigned and are
taken to have put themselves upon their country for

trial and a jury is thereupon summoned for their

trial in accordance with listing arrangements.

DAWSON J: So, you say arraignment and being placed in

charge of a jury are the same thing?

MR JAMES:  Your Honour, "put upon the country for trial",

yes, and the jury is summoned - - -

DAWSON J:  You have eliminated God in New South Wales, have

you?

MR JAMES:  No, Your Honour. "The country for trial" is the

jury. I was simply referring to that jury aspect

of it. Section 395 of the Crimes Act:

If any person arraigned on an indictment

pleads thereto "not guilty", he shall, without

further form, be deemed to have put himself

upon the country for trial, and the Court

shall, in the usual manner, order a jury for

his trial accordingly.

Now, when that jury is empanelled

MASON CJ:  What does that mean, "order a jury for his trial

accordingly"?

MR JAMES: 

One goes to the Jury Act then, Your Honour, for

the issue of the writs and so forth, and the
bringing of the persons to court for the

empanelling of the jury.  When the jury is

empanelled, he is placed in the charge of the jury.

MASON CJ: 

And that may be at some subsequent date?

MR JAMES: 

Yes, Your Honour.

DAWSON J: 

I see.

Morgan 7 8/10/93

MR JAMES:  And he is arraigned often on that date, that is

to say, before he is put in charge of the jury, a
confirmation is received that he adheres to the

plea of not guilty he has previously made.

MASON CJ: So, you go through the procedure again.

MR JAMES:  Yes. In between, there may be all manner of

trial applications, including applications in

respect of stays and so forth, or even sentence

indications, an application for another judge as to

what the sentence would be if the plea were to

change, and once he is placed in the charge of the

jury, the trial then proceeds - the hearing then

proceeds in the usual process of the opening, the

calling of evidence and so forth.

TOOHEY J: But for your argument, I take it, you do not need

to go back earlier than the presentation of the

indictment?

MR JAMES:	No, we do not need to go back earlier than that.
TOOHEY J:	That is your starting point. Do you argue then

that from that point onwards the trial judge or a

judge was empowered to direct that the - no, at

that stage, of course, it was only a manslaughter

indictment.

MR JAMES: That is right. The court was seized - - -

TOOHEY J:  So the point does not become live until there is

a question of indicting him for murder?

MR JAMES:  The court was seized - it had general

jurisdiction in respect of criminal matters, but it

was seized in relation to this particular matter
when the indictment for manslaughter was presented.

TOOHEY J:  Was handed up.

DAWSON J: Just to complete the picture: if there is no

indictment, nevertheless there may be an entry of a

nolle to get rid of the committal, am I right?

MR JAMES:  No, Your Honour, there is no necessity for a

nolle.

DAWSON J:  What if the man is in gaol? How do you get him

out?

MR JAMES:  The Court may then be informed with a view to

having him discharged from gaol.

DAWSON J:	What is it informed of?
Morgan	8/10/93
MR JAMES:	I am trying to recall whether there are in fact specific provisions in the Director of Public
Prosecutions Act.
DAWSON J:	Do not delay yourself on that.
MR JAMES:	But it is within the Commonwealth legislation,

but customarily - - -

DAWSON J:  You say that you do not need a nolle then because

a nolle is a pleading and it is a pleading to

the indictment - - -

MR JAMES: It is a notification to the court. It, in

effect, is more a pleading in the nature of a

notice of discontinuance. Our point about this

technical procedure is not purely for the sake of
the technical exercise but because it sounds, at

bottom, in the court being able to exercise its

discretion rather than taking the view that it is

confronted with a proposition as of right. In that

regard, in essence, what we are seeking to do is

apply bargaining to the nolle process. Even if the

Director had the right to do what he did, our

argument goes to the point then, none the less,

still the principles of abuse of process are wide

enough in Australia to apply to that and

considerably wider than those enunciated in Hui

Chi-Ming, particularly in the light of Walton v

Gardiner which, in Australia, permits of the

principles being used in respect of unfair

processes.

DAWSON J:  The phrase "abusive process" is really

inappropriate, is it not, here, because the Court

has control and if the nolle is entered it may let

the trial proceedings. It has a discretion to do

that. It just governs the process in accordance

with fairness and justice.

MR JAMES:	And what happened in the present case was, in our submission, that the court believed that it did not
have that power, that first instance, and on
appeal. In the event there was a discretion, that
is, in our submission - - -
DAWSON J:	What do you say should have happened if no

amendment was sought with the second indictment?

MR JAMES:	"The first indictment is here, I will try it" . No application was made to try the second
indictment first.  The Crown relied and put its
reliance solely on a claim of right.

TOOHEY J: But you are moving away from the more fundamental

argument when you put it that way.	You are getting
back into procedural steps.	I thought your

Morgan 8/10/93

argument was that it was for the trial judge to
decide whether in fact, in all the circumstances,

the indictment for murder should proceed. Not

because of the filing or non-filing of a nolle, but because of all the circumstances which included the original filing of an indictment for manslaughter.

MR JAMES:	Yes, Your Honour, that is at bottom and what I have done is seek to refine that by referring to
the detail of the procedure; but, at bottom, that the trial judge had the right to say whether the
indictment for murder should or should not proceed.
Your Honours, I can add very little to what appears
in our outline of argument, except to indicate that
the trial judge's views appear in the application
book for Mihailovic at pages 10 to 11. That was a
communication made by the trial judge of his
personal feeling that it was:

monstrously unfair that of the eight, four

have been dealt with for manslaughter, while

these risk a conviction for murder. If the

Crown elects to continue with the trial as it

is, it is entitled to do so and I shall have

nothing to say about that; it will in no way

affect the conduct of the trial.

In our submission, His Honour is in error there.

However, I would like it to be brought to the

notice of the DPP -

It was so brought and the Director chose, as was

his right, not to seek to justify the course.

Where the Director chooses not to seek to justify

the course, that does not mean that one would, in

those circumstances, attribute any particular
motive or basis to him. In particular, the

Director did not advance a proposition before the

trial judge, "Well, those that were charged with

manslaughter have chosen to give evidence and I am	calling them in the case against these accused who
I am not prepared to accept a plea to
manslaughter", or any matter of that sort. So that
what one is confronted with - - -

MASON CJ: But this is a little unfair, is it not, to say

that the DPP chose not to justify the course?

After all, all the trial judge had said was that he

wanted his remarks conveyed to the DPP and he would

like to know whether the DPP had given express consideration to whether what is being done is

fair. That is all that he was concerned with.

MR JAMES:  That is so. I am not criticizing the Director, I

am saying the Director had the right to take that

course, but he did not advance any particular basis

Morgan 10 8/10/93

to allay the trial judge's feeling of unfairness except, "I have considered what you say". He is

entitled to do that. Barton it is quite clear and,

indeed, the severance - the independence of the

arms of government ensure that the Director has

that right. But when the Court comes to look at

it, given nothing else to work with, and assuming

for the purposes of this branch of the argument

that it has the power in its discretion to

intervene, then there was nothing in this case

which spoke to the contrary other than

intervention. So I am not merely asking the Court

to embark on a dry and arid exercise not reflected

on the facts. The facts in upshot warrant special

leave, in our submission, and the principles

warrant special leave.

MASON CJ: Yes, but there is one question I want to ask you.

Up to date you have been arguing that the DPP does

not possess a delegated power under the statute to

enter a nolle or, in effect, to give a direction

that is equivalent to a nolle prosequi. I have

some difficulty with that argument because it seems

to me, prima facie, on the construction of the legislation, particularly having regard to the

legislative history of it, the second reading

speech and the discussion of the legislature, that

that interpretation cannot be supported. Now, are

you still pressing that question?

MR JAMES:  Your Honour, it is not essential to us. We

press it because on the argument we would seek to

put that section specifically exempts out the power

of the Attorney-General to file the nolle prosequi

once the trial has commenced and no power is

conferred upon the Director of Public Prosecutions.

MASON CJ:	What is the reference to that provision?
MR JAMES:

I think I can deal with that most easily,

Your Honours, by taking Your Honours to_ page 28 of

of Criminal Appeal -

the application book for Mihailovic where

MASON CJ: Yes, we have that.

MR JAMES:  - - - section 7 of the Direction of Public

Prosecutions Act and, in particular, section 7(2).

Section 7(1) sets out the functions and

responsibilities of the Director - - -

MASON CJ:  What about 7(2)(b)? Why does not 7(2)(b) cover

it?

MR JAMES: That covers the situation of a person who has

been committed for trial. It deals with the

Morgan 11 8/10/93

person - indeed, the very eventuality that

Justice Dawson referred to, that is to say, the

person is committed for trial against whom no bill

of indictment is being filed. It is a different

thing where the bill has been filed, found and

filed, the withdrawal of it depriving the supreme
court or the court of trial of jurisdiction. That

is a very different thing to be.

TOOHEY J: If you read section 7(2) along with section 27,

which is the obligation on the Attorney to notify

the Director whenever the Attorney exercises any of

the functions there referred to, it does suggest

that there is a sort of duality of function between

priority to the Attorney if there is any inconsistency in the manner of exercise.

the Attorney and the Director of Public giving

MR JAMES: Certainly, Your Honour, but section 27, again, does not, as it were, affect the exercise of the

nolle prosequi.

TOOHEY J:  So you read section 27, or the Act generally, as

not bearing upon the nolle prosequi, which remains

the province of the Attorney historically?

MR JAMES: Yes, Your Honour, historically. It was a very

important power, a quite dramatically important

power. One would have thought that if it was being

conferred on another, or removed from the

Attorney-General in the conduct of - at least as

far as criminal prosecutions are concerned, that

one would have received a lot more than

section 7(2)(b) and section 27.

MASON CJ: But I do not understand that at the moment. Are

you suggesting that 7(2)(b) does not delegate any

part of the Attorney's power to file a nolle?

MR JAMES:  To file a nolle, yes, Your Honour.

TOOHEY J: Is the term "nolle prosequi" one that is found in

the legislation of New South Wales?

MR JAMES:	Not as far as I am aware, Your Honour.
TOOHEY J:	That may help to explain why it is not used in

this statute, if it is not a term of art, as it

were

MR JAMES: It is a term of art - - -

TOOHEY J:	rather, legislative art perhaps.
MR JAMES:	It is certainly a term of art as far as the

common law is concerned - - -

Morgan 12 8/10/93

TOOHEY J: Yes, that is why I qualified it.

MR JAMES:  - - - but in terms of legislative art, no, I am

not aware of it being used.	I can only say I am
not aware of it being used.	You see, we do not

exist with either the procedural code or the

untainted common law.	We garner from both what we
can.

DAWSON J:  Who signs the nolle?

MR JAMES: If it is an Attorney-General's nolle prosequi, it

would be the Attorney-General.

DAWSON J: It is not delegated to a prosecutor for notice?

MR JAMES:  They are very rare creatures, Your Honour, in

New South Wales. In fact, because of this practice

- indeed, in my life in the criminal law I have

never seen one.

DAWSON J: Really?

MR JAMES:  Informally they have existed in terms of - as is

referred to in the judgment of the Court of

Criminal Appeal - a written memoranda with no

particular degree of formality filed in the Court.

The existence of actual documents, nolle prosequis,

here are very rare. What happens is the committal

occurs, committal on certain charges, then an
indictment occurs. Charges on the indictment may

or may not bear any relation to the offences for

which the person was committed. Often enough, as

pointed out, that indictment is simply taken away

and replaced by another one. There appears to be

no statutory authority for it other than the DPP

Act. There was a nolle prosequi procedure and it

just seems to have gone, as it were. But, I was

answering the Chief Justice's question:	my
argument about abuse of process is not
dependent -

MASON CJ:	I know, I follow that.
MR JAMES:	- - - and even if the Director does not have the

power, the argument still runs. It runs both ways,

whether he had or he had not.

MASON CJ: But at the moment I am inclined to think,

speaking for myself, that if he were to get special

leave on the other point, the point first

discussed - - -

MR JAMES:  I would not need it on the other.

MASON CJ: But on the other hand, I really do not see the

point of separating the two questions.

Morgan 13 8/10/93

DAWSON J:  You say in relation to (2)(b), the person whose

trial has commenced is not a person who has been

committed for trial or sentence but a person who is

on trial.

MR JAMES:	And on trial - on his country for trial.
DAWSON J:	And therefore does not cover it. I see.

MR JAMES: Indeed, the importance of that - Your Honours

will recall in Adelaide on the special leave

application in Cheatle, the two cases of Snow -

MASON CJ:  I think we have heard enough from you at this

stage, Mr James.	Mr Solicitor, what do you say
about all this?	You do not have any other points

on Morgan, have you?

MR JAMES:  Your Honour, there is the breadth of

Hui Chi-Ming.

TOOHEY J: Well, no, but there is (g). You do raise the

question of sentencing, do you not?

MR JAMES: Yes, but that is because of the disparity on the

first point. The second point would only arise if

we were unsuccessful on the first point and it

really turns on the same reasoning, that is, the

disparity in sentence arising because of the

disparity on conviction and treatment. It is a

consequence of what the Court might do on the abuse

of process point.

TOOHEY J: But is it a live ground that you are pressing on

this application?

MR JAMES: Yes, Your Honours, it is a live ground - - -

MASON CJ:  If you lost on the other points, you would still

have this point left.

MR JAMES:  That is right. But we would have this point left

on the basis that - - -

MASON CJ:  But you would not worry about it if you won on

the other points.

MR JAMES:  No, of course not. We have this point left on

the basis that if we lost, either because there was

a right to do what was done and no discretion, or

because it was not an abusive process, none the

less, the parity of sentencing doctrine goes to
offences which are dissimilar if the circumstances

are exactly the same. That is a very short point

and arises directly out of the argument that we put

in the written document. The other matter, the

cross-examination of F and J: the accomplices were

Morgan 14 8/10/93

called to give evidence and the Crown was permitted

to elicit from them that they had been dealt with

for their part in the homicide. The accused were

on trial for murder. They were not permitted to

elicit from those witnesses that they had not been

dealt with for murder, they had been dealt with for

manslaughter.

DAWSON J:  Why should they be - - -?

MR JAMES: Because otherwise the jury are being told that

these people have been dealt with, in effect, for

precisely the offence with which the accused stand

charged and·that is not the case.	The very offence
is different.	The jury are entitled to have all

the circumstances that - - -

DAWSON J:	Why, what relevance has it?
MR JAMES:	It affects the credibility and the acceptability

of the evidence. That was held in Booth, and there

is a direct collision between Booth and this

present case on that issue.

DAWSON J:  The fact that they had been dealt with is what

affects the credibility of the evidence.	They have
nothing to inspect.

MR JAMES:  But the Crown did not want to leave it at that.

The Crown wanted for this homicide or this offence,

depending on which version.

TOOHEY J:	But you did not want to leave it either at the conviction for manslaughter, you wanted to go
further than that.

MR JAMES:  No. But the Crown got the benefit and we got

nothing at all.

TOOHEY J: But your argument does not stop short of

cross-examination as to the offence for which they
were convicted, you wanted to go into the

circumstances.

MR JAMES: Yes.

DAWSON J: Then the Crown would want to explain - although

what it would mean to the jury, I do not know - how

all this had come about.

MR JAMES:	Yes.
DAWSON J:	And it would be off on a sidetrack from an issue

that was not an at issue in the trial.

MR JAMES:  But it is a perfect illustration, Your Honours,

of why the process, in the upshot, was unfair - - -

Morgan 15 8/10/93

DAWSON J: That is another question.

MR JAMES:  - - - in producing the result. And all I could

say about that is that we will shut out in

cross-examining on the matter of credit that was

directly relevant to the acceptability of these

accused.

DAWSON J:	Whose credit?
MR JAMES:	The credit of these two witnesses.  Their

credibility. They have every good reason to be

ingratiating themselves with the Crown once one saw

that they were dealt with more leniently than the

Crown sought to have these present accused dealt

with. I cannot add any further to that.

MASON CJ: Yes, Mr Solicitor?

MR MASON:  Your Honours, a couple of minor procedural

matters. It is in the Criminal Procedure regulation 9, the provision is made for a notice of readiness in respect of any criminal proceedings to

be accompanied by a draft of the indictment
proposed to be presented in the proceedings.

Compliance with that does not mean that the signed

indictment is presented at that stage. The

practice is that the indictment is signed at the

day of the trial and presented at the trial.

Your Honours, there was no doubt in the mind

of the trial judge that he had the power, in a

proper case, to stay for an abuse - - -

DAWSON J:  Can I stop you there, Mr Solicitor? Was the

.... indictment, in this case, before the accused

pleaded?

MR MASON:  Yes.

DAWSON J:  Yes. You said at the trial. He was not

yet - - -

MR MASON:  I am sorry. This particular accused was

arraigned on three occasions.

DAWSON J:  So there is no dispute that he was arraigned and

pleaded not guilty on the first occasion.

MR MASON:  Not at all. He was arraigned with three other

persons, not being his co-accused at the trial.

So, in a formal sense, the indictment to which they

pleaded guilty and he, contrary to his earlier

indication, pleaded not guilty. In a formal sense

that indictment was spent in order for him to be

tried jointly with the three other persons who came

up for trial, a fresh indictment -

Morgan 16 8/10/93

DAWSON J: It was not spent as far as he was concerned.

MR MASON:  In a formal sense it was, because there can only

be one indictment at a trial.

DAWSON J: That is right. If the trial had proceeded then

it just could have proceeded with his trial.

MR MASON:	That is correct, yes. He was arraigned, not in the presence of the jury and not - with the
intention of either party that the trial would
proceed forthwith.  Then the trial came on in
January. In fact, there were two trials: the first trial aborted after about four or five days and he was arraigned at each of those trials for
murder, having been informed well in advance that
that would be the charge which would be presented.
There was no doubt in the trial judge's mind that
he had the power in a proper case to stay for an
abuse of process and in the Morgan application book
at pages 22 and 23 there is reference to that.

When the matter came before the Court of

Criminal Appeal, the present point that my learned friend has developed at length was put as, as it were, a knockout procedural point, not in the context of an abuse of process but as, in effect,

an irremedial, procedural problem. That appears in

the Mihailovic application book at page 24 in the
judgment of the Court of Criminal Appeal, about the
middle of the page. The contention that was put on

behalf of Mr Morgan by my learned friend is there

set out.

Your Honours, it is our submission that, as

the Court of Appeal held, it is the role of the prosecutor to lay the charges and, if it is not

unfair for the prosecutor to grant an immunity to

some co-accused, how can it possibly be unfair in a

legally relevant sense for the Crown, in a case

where the evidence supports the charge, as the

Court of Appeal held and was never in doubt, to proceed with the charge that is available on the evidence?

As to the procedural point, Your Honours, in

New South Wales a nolle prosequi, or its

equivalent, is not filed in New South Wales. In

Queensland, the case to which Your Honour the

Chief Justice referred, the power to enter or to
discontinue extends to prosecutors. In New South

Wales it is only in the Director of Public

Prosecutions, the Attorney-General; in certain
circumstances, myself, that the power to

discontinue resides.

Morgan 17 8/10/93

In Gill's case the Court had control of the

matter because there is a statutory requirement
that a discontinuance be entered on the information
or the indictment. The information is presented to
the court and the prosecutor said, "Please can I

have it back. Because this trial is going off the

rails", as it were, "I wish to discontinue so that

I can come again at a later stage." The Court

said, "We have control of this", and in that

context the abuse of process principles were

applied in the context of this formal application.

As the Court of Criminal Appeal indicated in

their judgment at page 27 in the Mihailovic book,

the practice in New South Wales with respect to

what is commonly still known as a nolle prosequi

does not involve any, as it were, entry on court

papers. Proceedings are no-billed, in effect, by a
memorandum or note being put on papers in the
Attorney-General's office in the days before the

OPP was established or in the DPP's office in the current practice.

DAWSON J:  The court has to be told somehow, I mean ..... for

that matter.

MR MASON:  The court has to be informed but there is no

procedure in the way of a pleading in relation to

the discontinuance of criminal proceedings.

TOOHEY J:  The authority to speak of communication to the

court.

MR MASON:	Yes, and the court was informed in the present case because there were various mentions late in the year when the trial date for murder was
confirmed.
MASON CJ:	What were the terms of the communication to the court?

MR MASON:  It was at a mention. I have a chronology which

the Court may be assisted by receiving - perhaps I

can hand it up - but it was on 14 December 1990 at

one of the many mentions before Mr Justice Wood.

He was informed, the appellant and his co-accused

having been informed by letter - and these letters

are in evidence in the application books - having

the statements of the two who had pleaded guilty

and been sentenced for manslaughter and had

indicated and got discounts because of their

indication that they would give evidence for the

Crown, the Crown then notified the present

applicant and his co-accused that it would proceed with a murder charge and the court was informed of

that on 14 December.

Morgan 18 8/10/93

MASON CJ:  Was the court informed that either a nolle

prosequi had been filed or, alternatively, that a

direction had been given by the OPP that no further

proceedings were to be taken on the indictment for

manslaughter?

MR MASON:  I cannot say it was in those terms. What the

court was - it told - and this came before the

trial judge because it was an application for a

stay - in the Morgan application book at page 5,

there is an annexure to an affidavit that was filed

in support of the notice of motion for a stay.

This shows, in fact, what the court learnt and what

the appellant learnt; that the Crown had come to

the intention that it would present an indictment

for murder. The words "discontinue" or "nolle

prosequi" were never part of the communication to

either the court or the party. That was, we

submit, and the Court of Criminal Appeal held, the

substance of the situation.

MASON CJ: But you presented the argument or the argument

was presented for the OPP that there was to be

presumed a direction under section 7(2)(b) on the

ground on presumption of regularity.

MR MASON:  Yes, and the court also inferred that. The

question of the - - -

MASON CJ:  Was there any other basis for concluding that a

direction had been given under section 7(2)(b)?

MR MASON:  If you are asking that it had been given by the

DPP, as distinct from just given by the Crown, no,

not in evidence because there was no issue about it

at the trial process.	The point we are
taking - - -

MASON CJ:  The question is widen to include the Crown, what

else?

MR MASON:  Up to the trial and including the notice of

motion, the point that was taken was, "I have been

arraigned for manslaughter; I have pleaded not

guilty to manslaughter. I have a right to be tried

for manslaughter and nothing else. This

indictment, which is presented for murder by the

Crown is one which, I cannot be 'put on my country'

for", as it were. So the regularity of the

indictment, the validity of the indictment that was

presented, was not in issue.

TOOHEY J: That was partly, I think, Mr Solicitor, because

the trial judge was under the impression that at

some pre-trial proceeding Mr Justice Wood had given

leave to amend the indictment from manslaughter to

murder.

Morgan 19 8/10/93

MR MASON:  He did. His Honour - and I think this is in the

Morgan application book about pages 18 and 19 - in effect, gave a number of reasons why there was no

miscarriage or irregularity that would attract the

power to grant leave and he would conclude that

power of the Court or that would attract a stay.

that is what took place. That formal basis for the

matter was not the basis which was relied upon in

the Court of Criminal Appeal but the substantive

point is a good one still, in my submission, that

there was no miscarriage.

If the case is driven back to the formal level

at which I put it in the CCA and here, then it can

be met, in my submission, properly at the formal

level we seek to put it, namely, that there was an

effective discontinuance, that there was a

necessity for a fresh indictment to be filed so

that a joint trial could take place and there was

no miscarriage.

TOOHEY J: It tends to weaken the notion that there is a

presumption of regularity operating in this area

when there was a misunderstanding as to what in

fact had happened earlier on.

MR MASON:  The only question where the presumption is

relevant is as to whether it was the OPP personally

as distinct from the Crown prosecutor. Only the

OPP, relevantly, may discontinue under

section 7(2)(b). There was no doubt in anyone's

mind that there had been a discontinuance in the

sense that the manslaughter charge was not going to

be pressed, it was to be the murder charge.	The
question of - - -

DAWSON J: But the filing of another indictment does not

discontinue the former. There may have to be an

election.

MR MASON: There obviously, in a sense, was an election.

The Crown was saying "We are presenting the murder

indictment", and the - - -

DAWSON J: But that does not automatically operate as an

nolle prosequi in relation to the other indictment.

You can have two indictments filed at the one time

on the same facts.

MR MASON:  You can. The abuse of process occurs if you seek

to proceed in an inconsistent manner. There was no

doubt as to the manner the Crown was going to

proceed and it was made clear, in terms, that the

manslaughter indictment was no longer going to be

relied upon.

Morgan 20 8/10/93

DAWSON J: If you look for a sinister aspect to all of this,

and I am not suggesting that there is any, but the

Crown may not have wanted to apply for leave to

amend the first indictment because it may not have

received leave so it adopted this alternative

procedure which it says left it entirely in its

hands.

MR MASON:  The trial judge made it very plain, in my

submission, that he had control of the matter and

for the various reasons he gave he considered that

there was no procedural irregularity or miscarriage

in the switch.

DAWSON J:  He seemed somewhat unhappy about the situation,

all the same.

MR MASON:	What he was unhappy about was not the switch but the disparity between those offenders who had
pleaded early and got the discount - - -
DAWSON J:	So that if he had been asked for leave to amend

the Crown may have been in difficulty.

MR MASON:  It would not have been a proper exercise for

His Honour to have refused that leave consistent

with the principles that he accepted and the Court of Criminal Appeal endorsed, that where there is a

bona fide exercise of the prosecuting power it is

not for the court to become the endorser of the

prosecution process.

Your Honours, may I also point out that it was

common ground that there was power to enter a

nolle. That is indicated in the Mihailovic

application book at page 23. So, by the time the

matter got to the Court of Criminal Appeal, as it

were, that the point was, "Yes, you could have

discontinued here but only the Attorney could."	So
the ground shifted and, in one sense, it is
shifting again.	A nolle prosequi, of course, can

be entered after arraignment and during trial,

indeed. So there is no magic about the time.

We submit that ultimately the question for the

Court of Criminal Appeal and, a fortiori, for this

Court is whether there was a miscarriage, and given

that there clearly was open to bring this charge -

that matter has never been in issue in terms of the

evidentiary basis for the charge - given that there

was plenty of notice given, there was no question

of surprise or anything like that, no question of

bad faith asserted, there was no miscarriage. It

ultimately gets back to a procedural quibble which,

in our submission, is of no substance, given the

way that discontinuances occur in New South Wales.

Morgan 21 8/10/93

We would submit section 7(2) is very clear. In

the context of the scheme of the legislation, the Director of Public Prosecutions is armed with all of the powers formally exercised only by the

Attorney and 7(2)(b) includes a discontinuance, as

it were, with a view to starting again in a more

properly framed charge, bearing in mind that the presentation of the later charge to stay it if it

is an improper matter.

Following the remarks of the trial judge in

chambers to which reference has been made which, we

submit, do riot bear the interpretation that

His Honour was legally powerless, there was no

further application made for a stay. It was not

communicated to the Director of Public Prosecutions

and the prosecution continued. So that cannot be

elevated into some judicial error which can itself

be the basis of intervention. Ultimately, the
point is an attitude of a judicial observer but,

properly acknowledged, in our submission, that it

was not his function to determine which charge

should be laid.

Your Honours, on the other two points, what I

will call the Lowe point:  Lowe itself and several

cases that have actually explored this matter in

detail concern the same offence. The principles of

parity only apply if people are convicted of the

same offence. Where they are properly convicted of

different offences, the Court properly has no
choice but to sentence having regard to what they

had been convicted for, having regard to the other

aspects of the matter. My friend has not suggested

any disagreement amongst the authorities and there

are a number of them in Full Courts to that effect

and that is clearly what Lowe says. There is no

special leave point there.

MR MASON:  The Hui Chi-Ming point, the Privy Council case

is, in my submission, directly in point and was

correctly applied.	It was not the Crown who was
seeking to lead damaging material.	The Crown

certainly wanted to call these co-accused who had

been convicted and the Crown accepted that their

position as convicted, sentenced and discounted

sentenced accused had to be drawn to the jury's
attention. But that was in the context of an

application made to cross-examine them.

The judgment of Mr Badgery-Parker starts at

page 1 in the Mihailovic application book and at

page 2, Your Honours will see that there were six

matters that counsel for the accused wanted to be

able to elicit in cross-examination, and matters

(b), (e) and (f) were conceded by the Crown to be

Morgan 22 8/10/93

open. It was the other matters that the Crown said

were not open and it was upheld in both courts

below, correctly so, in our submission. The

matters were quite irrelevant and would have given

rise to a misleading issue. Their forensic

purpose, from the accused's point of view, is

patent.

TOOHEY J: But how could you admit evidence under

paragraph (b), at least as it is expressed, without

admitting it under paragraph (a)?

MR MASON:  With respect, Your Honour is correct, and the

way (b) was accommodated was by a formula that they
had been convicted in relation to the - I think it

was the homicide or the incident - - -

TOOHEY J:  So it is really (b) - we should read "and" rather

than "that".

MR MASON:  It had to be an offence that had something to do

with the case, the killing of the young man, but they were given directions that they were not to speculate about what particular offence they had

been convicted about.

The matter would have been not only misleading

but technically irrelevant. Proof of another
conviction is not proof, in this trial, of the

facts giving rise to that conviction and there is

no reason why the hearsay rule in this respect

would be any different in the hands of the

accused's counsel than in the hands of the Crown.

If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr James.

MR JAMES: If Your Honours please. Appearing in the matter

of Mihailovic which follows this matter in the list

is Mr McClintock of counsel who was trial counsel,

and although it is not referred to in the appeal

books, it was put that there was no further

application made to the trial judge after the

chambers' remarks. I am told that is not the case.

There was, in fact, a further application made.

Secondly, I am told that although there was some cross-examination of the witnesses in terms of

whether or not they were concerned to ingratiate

themselves with the Crown, they were not told of these witnesses obtaining a discounted sentence.

Of course, the trial judge made it plain that he

did not have control; that is to say, in his view

of what was binding on him as authority, the

judgment of Justice Brennan in Jago, and in his

view of Mr Justice Wood having granted the Crown

Morgan 23 8/10/93

leave to amend the indictment from manslaughter to

murder he was, in our submission, placed in a

situation where he believed, and my friend has

submitted this here, that in the absence of bad

faith from the prosecution, Hui Chi-Ming, he could

not intervene to correct what appeared to him to be

an unfairness, a monstrous unfairness.

Further, that bad faith could not lie in the

Crown resorting to procedures which were legally

open to it, ie, procedures which would have avoided

the judicial control arising by way of leave to

amend.

Now, in those circumstances, there is a clear error of principle and that the Court of Criminal

Appeal looked at Hui Chi-Ming on two bases, not

just in relation to the cross-examination of the

witnesses, but also in relation to a narrowed

version of the power to correct for abuse of

process; that is to say the necessity to show bad

faith in the prosecutor. And, of course, you can

never show bad faith in the prosecutor if he is not

prepared to tell you why it is he is taking the

course.

Further, of course, that is in our submission

not the test to be adopted in New South Wales and

in Australia. Walton v Gardiner, in relation to

disciplinary proceedings, takes the matter one

stage further from Jago and, in our submission, the

principles in Walton v Gardiner apply equally to

the conduct of criminal proceedings. It could be

argued to the contrary on the basis that these

formal proceedings that have been developed over so

long ensure that the conduct of the trial is fair.

And, indeed, Justice Brennan goes some way towards

that position and, indeed, that has been caught by

the United Kingdom courts in Attorney-General's

Reference No 1 of 1990. But our submission is that

is not the law in Australia and, indeed, that it

has always been the position here that even if the

lawful procedures are availed of, there may still

remain a question of unfairness to be dealt with by

the trial judge. Particularly where, as here, in

our submission, what has happened is the lawful

procedures which vest the discretion in the trial

judge are the ones that have not been resorted to.

That is all I seek to put in reply.

Morgan	8/10/93
MASON CJ:	We will give our decision in this matter at

2 o'clock and in the meantime we will hear

Mihailovic.

AT 11.30 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.01 PM:

MASON CJ:  The Court has come to the conclusion that these

applications should be referred to a Full Bench of five or seven Justices. That means they will come before the Full Bench as applications for special

leave to appeal, but the parties should be prepared

to argue the substance of the proposed appeals in

each case.

It means that the applicants will need to give

attention to the proposed grounds of appeal because

it seems quite clear, certainly in the case of

Morgan, that the present proposed grounds of appeal do not adequately or correctly cover the matters

that are intended to be argued. In addition, the

parties should give attention to the sufficiency of

the materials to be placed before the Court. Quite

clearly, in the light of the discussion this

morning, the Court will need to have comprehensive
information before it as to the history of these
matters, when they came before the courts, what was

said to the courts when the matters were listed,

and any relevant documentation bearing on such

decisions as may have been made by the Director of

Public Prosecutions and his officers.

AT 2.03 PM THE MATTERS WERE ADJOURNED SINE DIE

Morgan 25 8/10/93