Muir v The Queen

[2004] HCATrans 113

[2004] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Registry  No C3 of 2003

B e t w e e n -

DAVID JOHN MUIR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 2 APRIL 2004, AT 1.26 PM

Copyright in the High Court of Australia

MR I.D. TEMBY, QC:    May it please the Court, I appear for the Crown in the right of the Commonwealth and my learned friend, MR J.R. WHITE, appears with me.  (instructed by the Commonwealth Director of Public Prosecutions)

KIRBY J:   Do you appear on the motion as well as on the application for special leave, Mr Temby?

MR TEMBY:   I do, may it please the Court.

McHUGH J:   Yes.

KIRBY J:   We have received the affidavit.  Is there any objection to the affidavit of the applicant, do you know?

MR TEMBY:   Your Honour, out position is that we were advised of the motion during the course of yesterday and are not in a position to put considered submissions to the Court as to what the position should be so far as the request that the matter be handled by means of the applicant being brought to Court personally is concerned.  In any event, if that was to be acceded to, it is not a matter that could be dealt with today.  The Crown is ready, willing and able to provide assistance to the Court by putting forward considered submissions, but, I have to say, not at this moment.

McHUGH J:   Well, Mr Temby, the situation at the moment is that I gave a direction under Order 69A rule 15 that the application be determined on the papers and that order still stands.  We have a notice of motion from the applicant seeking an adjournment and we have considered that matter.  The question of your preparedness would only be relevant if we wanted to call on you.

MR TEMBY:   Yes.  Your Honour, I well appreciate that.  We are here, as I understand it, at the request of the Court in order to provide such assistance as may be requested from us.  I just want to say at the outset that we are not in a position to provide all the assistance which might be desirable if the Court seeks such assistance at this moment.

KIRBY J:   I do not want to embarrass you because I appreciate your coming at short notice, but are you able to inform the Court, on the basis of your knowledge, as to why New South Wales custodial authorities do not make arrangements for applicants to either come to the Court or come to some place for a video link to present their cases, whereas in other States, such as the enlightened State of Western Australia and other places in the Commonwealth, such arrangements are regularly made.

MR TEMBY:   Yes.  Your Honour, I do have a consciousness that practices seem to vary from State to State or place to place.

KIRBY J:   They do, indeed.

MR TEMBY:   I am not able to assist as to the reasons of policy or practical considerations which inform those decisions in New South Wales, to take the example that your Honour instances.  I do not know.  That is the sort of matter, which if we were called upon to assist the Court further, we would have to look into, if such a question is thought, in the Court’s view, to arise.

KIRBY J:   Yes, the problem, at least looked at as I think, is that without giving the applicant the opportunity to elaborate in advance his argument it is difficult for us, difficult for me, to know exactly what that argument would contain and where it would lead, if anywhere.

MR TEMBY:   May I, with respect, suggest this.  The Court does have a written argument which is put forward by the present applicant in support of the motion which he now brings before the Court seeking to either be here or to seek an adjournment; really, he wants to be here.  So far as that is concerned, if the Court is not minded to dispose of the matter immediately, we could provide written submissions in response to that and the matter could be thus dealt with.

Alternatively, if the Court wishes to hear argument then we will, of course, attend and provide oral submissions.  But, at the moment, the Court does have an argument before it in writing from the applicant and certainly we would be happy to respond to that and could do so at relatively short notice within a matter of a few working days, but I hope the Court will understand we do want, if called upon, to state a position and to do so in a considered manner.

KIRBY J:   Yes.

MR TEMBY:   It is not an unimportant question.  We are, of course, conscious that there have been some differing views expressed by Justices of the Court.  It may be thought to be desirable that, to the extent there is a controversy, it be laid to rest and we would be happy to play a role in that.  On the other hand, if the Court does not want to hear further from us, if we do not have any useful role to play, then we will be content with that also.  I am not in a position to urge any particular course upon the Court, but we could provide written submissions quite readily and quite quickly.

McHUGH J:   Yes, thank you.  Yes, we need not hear from you further, Mr Temby.  What I am about to say represents the view of Justice Hayne and myself.

David John Muir has filed an application for special leave to appeal against orders dismissing his appeal to the Court of Appeal of the Australian Capital Territory against sentences imposed on him for certain federal offences.  Mr Muir is in prison.  He is now being held at Goulburn Correctional Centre.  He has been told by a manager at that facility that, without an order of the Court, the prison authorities will not deliver him to the Court for him to make oral submissions in support of his application for special leave.

Acting under Order 69A rule 15, I directed that the application for special leave be determined on the papers.  Yesterday, after the direction under Order 69A rule 15 had been given, Mr Muir filed a notice of motion seeking an order that he be produced from prison and further, or alternatively, that the application for special leave be adjourned.  The tension between this application and the earlier direction may be noted, but need not be resolved.

The notice of motion was directed only to the Commonwealth Director of Public Prosecutions.  It was not directed to the person most immediately affected by the first form of relief sought, namely, the applicant’s gaoler.  If the notice of motion and supporting material had been served on the Director of Public Prosecutions, it must necessarily have been served late and we have been informed that that is the case.  Ordinarily, this would lead to an order adjourning consideration of the motion.  In the particular circumstances of this Court, however, so to order would be futile.  It would impose unnecessary expense on the party to whom the notice of motion is now directed and on any others upon whom it would have to be served.  No less importantly, to adjourn the application would displace the hearing of another application which, but for the adjournment of this application, would be fixed on that future date.

It is necessary to explain why adjourning the applications made by the notice of motion would be futile. Mr Muir has filed extensive written submissions in support of the applications. Those submissions reveal that the purpose of seeking an order adjourning the application for special leave is to allow further time to elapse for Attorneys‑General to consider notices under section 78B of the Judiciary Act 1903 (Cth) which Mr Muir issued on 31 March 2004. These notices relate to the application for special leave, not the application for an order that he be produced from confinement. This aspect of the applications may be put to one side.

Insofar as he seeks an order for his production from prison, Mr Muir points to what he says are two sources of power to make such an order: section 78 of the Judiciary Act and some particular provisions of the Rules of Court. Neither provides the power to make an order of the kind sought by Mr Muir. Section 78 of the Judiciary Act provides:

“In every Court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors as by this Act or the laws and rules regulating the practice of those Courts respectively are permitted to appear therein.”

In Collins v The Queen (1975) 133 CLR 120, five members of the Court held that section 78 is not engaged by an application for special leave to appeal. An application for special leave is no more than an application for leave to commence a proceeding in the Court: see 133 CLR 120 at 122. An applicant for special leave is not a party within the meaning of section 78: 133 CLR 120 at 123. As I pointed out in Milat v The Queen, unreported, 24 February 2004, other decisions of the Court since Collins neither require nor permit a different answer.

Insofar as Mr Muir prays in aid the provisions of the Rules of Court – Order 55 rule 1 and Order 55 rule 39 – none of those rules supplies the power to make an order of the kind now sought. Order 55 rules 1 and 39 are concerned only with proceedings for relief under section 75(v) of the Constitution or like relief. They are not rules directed to the powers of the Court in the wholly different and distinctive circumstances of an application for leave to commence a proceeding in the Court’s appellate jurisdiction. Mr Muir points to no other source of power. But even if, contrary to the views expressed by me in Milat, some other source of power to make an order of the kind sought could be identified, there would be no occasion in this case to exercise it in favour of Mr Muir.

In this, as in all other applications for special leave, the written submission is the primary vehicle for persuading the Court that there is a point appropriate for the grant of special leave. There are undoubtedly cases in which oral argument may assist the Court, but very rarely will that be so where the applicant is not represented. In the present case, the point which Mr Muir seeks to argue in an appeal to this Court, that the primary judge did not take account of section 16G of the Crimes Act 1914 (Cth) when fixing the sentence on him, is clear. It is not a point which admits of development. Either account of section 16G was taken or it was not. Oral argument of the application for special leave would not assist.

In these circumstances, in the view of Justice Hayne and myself, to adjourn the application for special leave is futile.  Accordingly, we would dismiss the notice of motion.

KIRBY J:   Sooner or later – preferably sooner – this Court will have to decide whether it has the power to order that a person having the custody of a prisoner bring that prisoner to court, or to some other secure place, where the prisoner wishes to be heard in support of an application for special leave or in an appeal, if leave is granted, and the prisoner is not represented by a lawyer. 

In my view, it is arguable that this Court has the relevant power, as incidental to its constitutional function to hear and determine appeals from all judgments of Supreme Courts. See the Constitution s 73. cf Tait v The Queen (1962) 108 CLR 620 at 624‑625 per Dixon CJ (“…so that the authority of this Court may be maintained”). That power appears to be even more clear where, as here, the court of trial and appeal was a Territory court, namely the Supreme Court of the Australian Capital Territory. And still more clear because that court was exercising federal jurisdiction in the trial and sentencing of the applicant, Mr David Muir. He was tried and sentenced for an offence of fraud, contrary to the Crimes Act 1914 (Cth). See the Constitution, s 73(ii).

A grant of special leave is virtually always now a prerequisite to the invocation of this Court’s constitutional function in appeals.  See the Judiciary Act 1903 (Cth) ss 35(2) and 35AA(2). In deciding contested matters of constitutional power, this Court considers the substance, and not the form, of the matter in contention. See Ha v New South Wales (1997) 189 CLR 465 at 498; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27; Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 572 [103]. In substance, unless a person such as the applicant secures a grant of special leave to appeal, he or she cannot normally appeal.  Securing such a grant depends upon communication and persuasion by the applicant, addressed to the Justices deciding the question.  No matter of form can eliminate that constitutional reality.

The applicant has sought an order that he be produced from confinement in the Goulburn Correctional Centre in New South Wales, where he is serving the sentence imposed on him in the Supreme Court.  It is that sentence which the applicant wishes to challenge in this Court.  The sentence is for a total of seven years and six months imprisonment, commencing from 5 June 2001.  For the purpose of disposing of the challenge, this Court has before it the applicant’s application for special leave.  The applicant has filed written submissions in support of that application.  So has the respondent.  The written submissions for the applicant, and, of course, for the respondent, are detailed, intelligent and well presented.  However, the written submissions for the applicant do not today have the support of oral submissions, either by the applicant personally or by a legal practitioner on his behalf.

The respondent is represented before the Court by the Director of Public Prosecutions of the Commonwealth.  Mr Ian Temby, QC, a most experienced barrister (and himself a former Commonwealth Director of Public Prosecutions) has appeared in the Director’s interest.  So this is the position:  an experienced barrister is present in Court to support the respondent in the motion and application that are before us.  The applicant is not present.  The seat at the Bar table for the applicant is empty.  On the face of things, this is a somewhat unequal contest of arms. 

Counsel for the respondent conceded, properly, that the issue raised by the applicant’s motion is not unimportant for the administration of justice.  He recognised that, upon it, differing views have been expressed in this Court.  He indicated the preparedness of the Director, if so required, to offer written and oral submissions on the point raised in the applicant’s motion.  I would give him that facility.

In an administrative order made earlier, McHugh J directed that the application should be heard by the Court today on the papers.  This direction followed the indication that the applicant was in prison in New South Wales and would not be legally represented.  However, his Honour’s order was made before the Court had the applicant’s motion.  That motion, filed on 31 March 2004, overtakes the administrative order.  Self‑evidently, the Court is obliged to dispose of the applicant’s motion in a judicial manner.

The applicant’s motion is relevant to the mode of disposal of that process itself.  He asks to be given the opportunity to be heard orally in support of the motion as well as of the substantive special leave application.  He therefore asks that both proceedings be adjourned.  In my opinion, this Court, after giving him the opportunity to be heard, should order the gaoler who is detaining the applicant to bring the applicant to this Court to allow him to be heard as he requests.  Alternatively, if the Court has sufficient doubts as to its power to make such an order, it should adjourn the hearing of the motion and the application for special leave.  It should then request the Attorney‑General for the Commonwealth, the Human Rights and Equal Opportunity Commission, the relevant Bar Association or some other appropriate person or body to appear by counsel before the Court to assist the Court to resolve the issue of power and to advance, as best we may, the interests of the applicant (and others in a like position) to be heard by the Court in support of the motion and the application for special leave.

For more than a decade before my appointment to this Court, I regularly sat in the Court of Criminal Appeal of New South Wales.  There, where prisoners were not granted legal aid by the public legal aid body and were not able to afford counsel or did not wish to be so represented, they were invariably brought to court to be heard.  More recently, in bail applications in some State Supreme Courts, video links have been established to permit prisoners in that position to be heard by the judges, the prisoners remaining in a custodial institution to which the video link to the court is established.  I would reject any suggestion that this form of hearing is invariably an unfruitful exercise.  Quite apart from the legal and symbolic importance of equality before the courts, the oral representations of prisoners have, from time to time, assisted me and doubtless many other judges in the disposition of their applications for leave or in the hearing of appeals.  In this Court, where prisoners have appeared to advance oral arguments, they have assisted me in applications for special leave.

In Cameron v The Queen (2002) 209 CLR 339, I sat in special leave applications in Perth with Gaudron J. In accordance with the practice of custodial authorities in that State, Mr Cameron was brought to the hearing of the application. Like the present applicant, Mr Cameron had filed intelligent and well‑expressed submissions. However, on the written submissions, I was not inclined to favour the grant of special leave in his case. When, however, Mr Cameron appeared before Gaudron J and me, he persuaded us both to grant him special leave. He was then granted legal aid or pro bono assistance which he had not earlier received. He won his appeal.

The essential point raised in the present application for special leave is not futile or insusceptible to oral elaboration as the majority suggest. The respondent resists the point under s 16G of the Crimes Act 1914 (Cth) by saying that the judge did sufficiently address and apply the section and, in any case, that it has now been repealed. The applicant contests. In the past, the section has been the subject of substantial oral argument before the courts: eg Commonwealth Director of Public Prosecutions v El Karhani (1990) 21 NSWLR 370 at 383‑384. We cannot know whether oral argument would again be useful until we have heard it.

To deny the occasional utility of oral submissions in this Court, including on behalf of prisoners, is to deny the experience of the common law system of advocacy before judges sitting in public.  In the press of judicial business, it is arguable that, at the level of a final court, all applicants for special leave should have their applications decided on the papers or should go through a filter for the purpose of winnowing out cases where there is no basis upon which an oral submission could persuade the Court to grant special leave.  However, this is not this Court’s present system for special leave hearings.  Whilst this Court persists with oral hearings, we should do so, unless there is some strong justification and legal basis for the contrary approach, on a footing of complete equality between all persons appearing before the Court.

In Queensland, Western Australia and, where an informal request is made, in South Australia, prisoners are regularly brought to a place of hearing or to the place where the hearing is established by video link to Canberra to permit them the right of any other party in a special leave application, namely 20 minutes of oral submissions.  However, in New South Wales and in respect of Australian Capital Territory prisoners committed to New South Wales prisons, the custodial authorities do not co‑operate in this way.  This is an inequality in the treatment of prisoners and in the exercise of their rights within the Commonwealth that I do not willingly acquiesce in.  Whether there is power to correct it should be addressed by this Court without delay.  It is unarguably an important issue for the Court.  But it is also important for the Crown representing the Commonwealth in federal criminal cases and for prisoners and their families. 

Prisoners are human beings.  In most cases, they are also citizens of this country.  They should, so far as the law can allow, ordinarily have the same rights as all other persons before this Court.  They have lost their liberty whilst they are in prison.  However, so far as I am concerned, they have not lost their human dignity or their right to equality before the law.

As mine is a minority view, it follows that this Court will proceed in the absence of Mr Muir to dispose of his motion and application for special leave, on the papers without oral argument.  I regard that as unjust.  This very day, this Court has heard and disposed of seven applications by video link, one from Brisbane and six from Perth.  There is no apparent technical difficulty, if physical presence of the applicant creates insuperable problems, why a video link could not just as readily be established to Goulburn Correctional Centre.  What is missing is the will and the perception of the necessity and power to so require.  Until the inequality in rights before the Court is corrected by this Court, prisoners in New South Wales custodial institutions will continue to suffer a threefold inequality and discrimination as compared (1) to the persons who are at liberty and who can come to the Court to address it; (2) to prisoners who can afford to pay for legal representation or who are exceptionally granted public legal aid; and (3) to prisoners in other jurisdictions who, at their request, are assisted by the custodial authorities to enjoy the same rights of oral argument as all other parties enjoy in this nation in a special leave hearing before this Court.

For these reasons, I would propose that the Court accede to the applicant’s motion for adjournment of the hearing of the application for special leave. I would favour referring to a Full Court of this Court the question of whether this Court has the power to accede to the applicant’s request that he brought to the Court or to some other secure place to argue the motion and the application for special leave. That reference would permit necessary notices to be given, including under s 78B of the Judiciary Act and to ensure the attendance before the Court of those who could assist the Court in resolving this question.  I dissent from the view taken by my colleagues.

McHUGH J:   By majority, the notice of motion is dismissed.  In accordance with the direction that I gave under Order 69A rule 15, the application for special leave to appeal will be determined on the written submissions of both parties:  the applicant and the Commonwealth Director of Public Prosecutions.

It is the view of the whole Court that, having considered the written submissions of the parties, we are of the opinion that the decision of the Court of Appeal is not attended by doubt.  Accordingly, special leave is refused.

KIRBY J:   Necessarily, my concurrence in that order, and the conclusion of a lack of sufficient doubt to warrant the grant of special leave, is based on the fact that the application has had to be dealt with on the papers and without the benefit of oral submissions by or for the applicant.

McHUGH J:   The Court will now adjourn until 2.30 pm.

AT 1.52 PM THE MATTER WAS CONCLUDED