Morgan v The Queen - [1993] HCATrans 297

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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

8/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 10.29 AM

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:

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morgan v The Queen

Details

AGLC: Morgan v The Queen [1993] HCATrans 297
Case: [1993] HCATrans 297
Decision Date

CaseChat Overview and Summary

The applicant, Mr G.R. James QC, sought special leave to appeal to the High Court of Australia, represented by himself and Mr S.J. Odgers, against the respondents, the Crown, represented by the Solicitor-General for New South Wales, Mr K. Mason QC, and Mr P.J.P. Power. The dispute arose from a trial where the applicant's legal team argued that the proceedings were "monstrously unfair" and that the trial judge lacked the discretion to address this unfairness. This unfairness stemmed from the judge's view that leave had been granted to amend the indictment by a prior judge, or alternatively, that the prosecutor possessed an unfettered right to present a substituted indictment, thereby superseding the original one. This position was subsequently upheld by the Court of Criminal Appeal.

The central legal issues before the High Court concerned the procedural fairness of the trial and the interpretation of the Director of Public Prosecutions Act. Specifically, the applicant contended that the trial judge was precluded from exercising discretion to prevent procedural abuse or unfairness at trial. The applicant argued that the proper procedure for the Crown to withdraw the original indictment and proceed with a new one would have been to file a nolle prosequi, a process that would have involved consideration by the Attorney-General, thereby avoiding the Attorney-General's oversight. The applicant questioned whether the Director of Public Prosecutions Act delegated the Attorney-General's power to file a nolle prosequi and, if so, what the implications of such delegation would be for the court's ability to intervene.

The applicant's argument was that the procedure adopted by the prosecution effectively bypassed the Attorney-General and the filing of a nolle prosequi. The applicant suggested that if the Director of Public Prosecutions Act did delegate the Attorney-General's power to file a nolle prosequi, the filing of such a document would still bring the matter before the courts, allowing them to utilise doctrines relating to abuse of process. The applicant's legal team sought an extension of time for the application due to an initial delay in its preparation, which was attributed to issues with the handling of the matter by a firm of solicitors and the subsequent reassignment to Legal Aid.

Orders