Nemer v Holloway & Ors

[2003] HCATrans 457

[2003] HCATrans 457

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A268 of 2003

B e t w e e n -

PAUL HABIB NEMER

Applicant

and

PAUL HOLLOWAY

First Respondent

MICHAEL JOHN ATKINSON

Second Respondent

PAUL ROFE

Third Respondent

Application for a stay

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 13 NOVEMBER 2003, AT 8.58 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   May it please your Honour, I appear with my learned friends, MS B.J. POWELL, QC and MR J.D. EDWARDSON, for the applicant.  (instructed by Cowell Clarke Commercial Lawyers)

MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia:   If your Honour pleases, I appear with my learned friend, MR R.D. DE PALMA, for the first two respondents.  (instructed by Crown Solicitor’s Office (SA))

HIS HONOUR:   Yes, Mr Walker.  You move on a summons which was filed on 11 November which was supported by an affidavit of Jonathan Charles Clarke filed on that day?

MR WALKER:   I do, your Honour.

HIS HONOUR:   Mr Solicitor, do you have any objection to that affidavit?

MR KOURAKIS:   No, I do not.

HIS HONOUR:   Yes, thank you.  I should say I have also read some other material which has been filed which are principally affidavits of the applicant dated 1 September 2003 and 6 October 2003, together with the transcript of 10 November 2003.  Does anyone object to me having done that?

MR WALKER:   No, your Honour.

MR KOURAKIS:   No, your Honour.

HIS HONOUR:   Yes, Mr Walker.

MR WALKER:   As your Honour is therefore aware, this matter arises as a result of two proceedings, the first of which seeks to challenge what is, in effect, the competency of the second proceeding. The second proceeding was the purported application for leave to appeal by the Director of Public Prosecutions acting in discharge of his powers under paragraph 7(1)(g) of the Director of Public Prosecutions Act, namely to exercise appellate rights.  The appellate right in question is that right to seek leave to appeal on any ground in relation to sentence.

The first proceeding, which is the proceeding decided on 11 November from which we seek special leave to appeal to this Court, was a proceeding which challenged the efficacy in law of that purported decision to seek leave to appeal and to seek leave to appeal.

As your Honour will be aware, the application for leave in the Full Court of the Supreme Court is an application which is explicitly stated by the Director of Public Prosecutions to have been made in deference to a direction, itself purportedly given under section 9 of the DPP Act.  As your Honour knows, under subsection (1) of that provision, which is headed “Independence of Director” ‑ ‑ ‑

HIS HONOUR:   Mr Walker, can I just interrupt.  You will obviously be aware of the fact that time is rather short.  Can we operate on the assumption, subject to anything the Solicitor-General later says, that there is a substantial prospect of special leave being granted.  Let us just treat that as an assumption.  Does that shorten what you want to say?

MR WALKER:   It does.  Thank you very much, your Honour.  Going then to the next point, why should the Court entertain and grant the interlocutory relief we seek in this Court, for the following reasons:  that which would proceed today, if there is not an order, in effect, staying proceedings in the, what I will call, resentencing proceedings in the Full Court will be consideration of a number of matters which may, depending upon events, culminate in a Bench of three in the Full Court considering resentencing.

I stress “may” because we are bound to tell your Honour, as you will have gathered, that what may be argued in the Full Court, if proceedings continue today, will include questions about the parameters of any cross‑examination of my client if he is called as the Bench envisages he may elect to be called.

So the first thing that may happen today is that there is a real possibility that my client may be cross‑examined, more or less at large, and on issues which would go to culpability within the meaning of that word, not for conviction, but for the exercise of a sentencing discretion.  That, in our submission, is a large and irrevocable prejudice and carries with it the prejudice of having to make a decision, that is an election, about that today.

The next matter that may occur today is that there may be a decision by a Bench of three on resentencing.  We would respectfully accept the argument put below by the learned Solicitor-General to the effect that it is the duty of the Full Court, if properly seized of the matter, to consider for themselves what sentence should be imposed if they are satisfied that the discretion below miscarried.

It is possible, therefore, that a Bench of three would consider a range of outcomes that may include custodial sentence, time actually to be served, and then there are two specific matters which arise in relation to that possibility.  The first is that Justice Vanstone, as your Honour has seen, the passage commencing at about paragraph 118, page 26 of the print of her Honour’s reasons ‑ ‑ ‑

HIS HONOUR:   Yes, I have read that.

MR WALKER:   In our submission, that gives rise to the question whether her Honour should recuse herself, bearing in mind that the expressions of opinion as to what should happen on a redetermination are couched, in our submission, in those formal reasons – and by that I distinguish between that and what might otherwise have fallen out in transcripts of discussion – so as to give rise to a reasonable apprehension of a predetermination.  That is particularly invidious for my client, the present applicant, as respondent to the Crown’s sentence appeal facing the decision whether to elect to give evidence or not.  It also gives rise to a question about the proper constitution of the Full Court, the minimum number of which is stipulated to be three.

The next matter which is important for our claiming of interlocutory relief is that in paragraph 118 of her Honour’s reasons, those being the reasons which most amount to precursors of what might happen today, her Honour notes in the last sentence that she would now be inclined to impose an “unusually low non‑parole period”.  That gives rise to the prospect that there may be time served where my client, in fact, let it be assumed by majority – whether by majority or not does not matter – resentenced to custodial time actually to be served, that he would nonetheless end up having served all or nearly all of the time that her Honour has in mind before this Court was enabled, not only to consider the special leave application, which goes to the very root of the Crown’s sentencing appeal, but also to hear and determine any appeal which may follow from a grant of special leave.

It is for those reasons, which combine, in our submission, those things which are severally exceptional into something which is, in aggregate, completely exceptional, which justify the intervention of this Court to prevent that process, the very root of which is under challenge in the appeal for which we seek special leave, going ahead today.

On the other side of the ledger we would urge, in the balance that the Court has to strike in exercising its undoubted jurisdiction to preserve the subject matter of our intended appeal, there is this.  My client had, of course, already been sentenced and had been serving the sentence.  The sentence having been set aside, he is now readmitted to bail on conditions, I am instructed, no less onerous than those which obtained before his original sentencing.

Indeed, in relation to reporting and the like, it may be that his bail conditions are more stringent now than the conditions of his suspended sentence, from which it follows this case, were a stay of proceedings in the Full Court ordered by your Honour, does not present the spectacle which has been referred to in some of the authorities of, for example, a custodial sentence being interrupted in its service so that, pending an appeal to this Court, someone is seen not to be suffering the rigours which the law has, in fact, ordered that he or she should undertake.

This case stands in a quite different case.  He is not under any less rigorous regime, as a result of what has happened to date, than he was under the original sentence.  However, and my last point, if he were resentenced today and if he were resentenced to custodial time actually to be served, then the question of bail pending appeal is, as your Honour well knows, an extremely difficult one for any applicant.

Decisions of this Court, doing nothing to trammel the overall discretion, but a combination of single instance determinations plus the Full Court’s statements in the extradition case, Mexico v Cabal, which, as your Honour recalls, did refer to the criminal principles as well, combining to make it extremely difficult before a special leave application is heard, and even after special leave has been granted, to achieve bail.  When that circumstance is combined with Justice Vanstone’s precursor reference to “an unusually low non‑parole period” and to the original exercise of discretion by the sentencing judge and to the learned Chief Justice’s references to the available range on sentencing, in our submission, a stay of proceedings in no way represents an undesirable interruption of, or contradiction of, the orderly course of criminal proceedings below.  May it please, your Honour.

HIS HONOUR:   Thank you.

MR KOURAKIS:   If the Court pleases, with respect, the final submission of my learned friend is, in fact, the most powerful reason for refusing the application.  He is right, that the grant of bail after a sentence of imprisonment confirmed by a Court of Criminal Appeal is extremely unusual and will be granted only in the most exceptional circumstances.

What the applicants appear to argue is that the heavy burden that they would otherwise face in applying for bail after sentence can be avoided by bringing an application even before the conclusion of the criminal proceedings about which they are concerned.  In effect, it would be a backdoor way of obtaining bail or preventing the consequence of imprisonment in a sentence and, indeed, one that would encourage the fragmentation of the criminal process even further.  They seek this stay before the Court of Criminal Appeal has completed the function it has under the Criminal Law Consolidation Act, a function upon which it has embarked and in which it is part heard.

Your Honour, if after the sentencing it appears that there is a real risk of injustice because, on a consideration of the reasons of the Court of Criminal Appeal, it appears that there is a real prospect that the applicant would have spent time in custody unfairly because of an error that is apparent on their reasons, then that would be an exceptional circumstance and the applicant’s remedy is bail at that time.  In my submission, no sufficient reason is shown to fragment the criminal process now.

Your Honour, my learned friend has referred to the application that her Honour Justice Vanstone disqualify herself and referred your Honour to paragraph 118 of her reasons in the Court of Criminal Appeal.  A misunderstanding as to what her Honour said there was corrected on Monday before the Court when the application was made that her Honour disqualify herself.

Her Honour was not saying that the sentence she there referred to was a sentence that she would have imposed, even on the facts found by his Honour Judge Sulan.  Her Honour was saying that on the facts that she would find, based on the evidence before the sentencing court, that higher sentence would be imposed, imposed by her, but that of course leaves open the question what sentence would properly be imposed by her Honour if, taking the opportunity to answer the allegations against him, Mr Nemer persuades the court or leaves the court in some doubt as to whether those more aggravated facts to which her Honour was referring should be found.

There is no reason to apprehend any bias simply from her Honour’s tentative conclusion as to the sentence that would be appropriate on the facts as they now stand, yet to be contradicted.  Your Honour, moreover that application for disqualification was rejected by the whole court, not just her Honour Justice Vanstone of course, but the court as a whole.

So, finally, if your Honour pleases, in my submission, it is not necessary for the submissions and arguments that are already put to go to the question of whether there really is an arguable case.  We do contest it, but on that I say no more than this.  On the application for leave it will be important to consider that in the judgment of the only justice who dissented below, Chief Justice Doyle, the only criticism of the direction was as to a matter of form.  On his Honour’s reasons, if the direction had been to the effect, appeal all sentences for offences involving violence committed with a firearm where that sentence is suspended, there would have been no objection, even on the Chief Justice’s reasons.

Similarly, if the Attorney had appealed any sentence, if there is an independent opinion of the Solicitor-General or anyone else saying there are prospects for success on the Chief Justice’s reasons, again, that direction would not have been valid.

HIS HONOUR:   So you say that even if Chief Justice Doyle is correct, it would be possible to issue a further direction permitting – on the presumption that the proceedings that were decided last Friday were, in effect, a nullity or were set aside later, to issue a further direction.  It would be an appeal out of time – there might be other difficulties associated with it – but there would be that avenue open.

MR KOURAKIS:   Your Honour, that would be open, if the proceedings are indeed a nullity.  Furthermore, if the proceedings are stayed and this direction quashed, a direction that the Director prosecute this matter from now on could still be given.  That is on the assumption that the whole appeal proceeding is not invalid.  Your Honour, I have put that poorly.

HIS HONOUR:   Yes, I do not imagine the Court of Criminal Appeal would be very happy to, as it were, entertain a second appeal on the strength of a second direction before the legal validity of what they have done so far has been finally decided.

MR KOURAKIS:   I accept that, your Honour, and I put that poorly.  Your Honour, if the result of the applicant’s appeal here is not to invalidate the entire Court of Criminal Appeal proceedings, but simply to free the Director of the direction, then it would be open for the Attorney to give a further direction in a form consistent even with the view of his Honour the Chief Justice, which would require the Director to further prosecute this appeal to completion, that is, the criminal appeal.

HIS HONOUR:   Yes, thank you.

MR KOURAKIS:   If the Court pleases.

HIS HONOUR:   Yes, Mr Walker, anything in reply?

MR WALKER:   Your Honour, that last argument is a futility point.  In our submission, no futility point, particularly in relation to a Crown sentence appeal, should be entertained on such amorphous and hypothetical grounds.  The difference in quality, whether considered legally professionally or politically, between the kind of direction purportedly given in this case and a generic direction of the kind that my learned friend illustrates, namely a category offence, a sentence expressed in numerical terms or by reference to suspension or not, those differences are enormous.

Bearing in mind that the Director of Public Prosecutions must be a legal practitioner and that the decisions to be made in exercise of power under section 7 are those in which the judgment of a legal practitioner as a professional are engaged, in our submission, it cannot be supposed that the futility argument has any solid foundation in fact when no Attorney-General has either purported to give any such direction and the difference in quality or nature of the actual direction in this case and those hypothetical illustrations is so obvious.

The other matter, of course, is that in terms of fragmentation of the process, it is to be recalled that the earlier history of this, noted in the Chief Justice’s reasons, include of course a decision, publicly known, by the Director of Public Prosecutions as a matter of his own consideration not to appeal which, going even further back in history, included as a matter of the publicly conducted official prosecution in this State, involved the Director himself appearing on the sentencing, as your Honour well knows, and in terms submitting to the learned sentencing judge that what was then proposed and came to be the sentence would not be appealable.

So, in our submission, in terms of fragmentation or interruption, taken as a whole and bearing in mind the critical nature of the special leave point that we wish to raise, the independence of the Director and statutory interpretation going to the competence of a Crown sentencing appeal, the balance of discretion is in the favour of the applicant, bearing in mind that he is not asking for a respite from any sentence actually pronounced.  May it please your Honour.

HIS HONOUR:   Can I just ask this question.  Let us say the summons is dismissed and your special leave application fails, and let us say some sentence which your client objects to is imposed, it would be open to your client, would it not, to seek special leave to appeal and appeal against that sentence, not merely because of any errors that might take place in future, but also because of the majority of the Full Courts having dismissed the administrative law summons last Friday erroneously?

MR WALKER:   I do so submit, yes, your Honour.

HIS HONOUR:   Yes.  In other words, to approach perhaps the problem from another angle, in a sense the summons was not really necessary.  It was not wrong, but it was not necessary.  The substantive challenge you want to make could have been made in the whole of the criminal proceedings as distinct from separate civil proceedings.

MR WALKER:   I am probably going to commit a procedural solecism, your Honour, but in principle it could have been either an argument unadorned or, as it were, a motion for disposal in the criminal appeal.

HIS HONOUR:   Yes.  Your point is a standing point.  Your point is that the Director of Public Prosecutions, in the events which had happened, had no standing to institute the application for leave to appeal because he was doing so under the, as it were, oppression of an invalid direction.

MR WALKER:   Yes, under dictation.  Perhaps to put it another way and not meaning to cavil, he is the only one with standing but the appeal is not competent because he has not decided to appeal.  It has been decided for him.

HIS HONOUR:   Yes.  I mean, he has standing, but the actual foothold on which he chose to stand is a quite false foothold.

MR WALKER:   That is right.

HIS HONOUR:   Yes.

MR WALKER:   And as two‑edged as it is for today’s purposes, yes, without any qualification, we submit that a challenge to an outcome as to which we had any grievance on the resentencing process would include those fundamental matters of standing or competence if that were raised in the so‑called judicial review proceedings, as well as all the other matters to which we have made reference, or which may emerge.

HIS HONOUR:   Yes.  In other words, your argument today really rests on the points of substance that you made in the first 10 minutes, rather than some technical point about two proceedings versus one proceeding?

MR WALKER:   Yes.

HIS HONOUR:   Thank you, Mr Walker.

MR WALKER:   If your Honour pleases.

HIS HONOUR:   The applicant pleaded guilty to a charge of endangering life contrary to section 29(1) of the Criminal Law Consolidation Act 1935 (SA). On 19 August 2001, when he was 19, he discharged a firearm. In consequence, a bullet went through the nose, right eye and right temple of the victim. The maximum penalty is 15 years imprisonment. On 25 July 2003 Justice Sulan, sitting in the Supreme Court of South Australia, imposed a sentence of three years and three months with a non‑parole period of two years and suspended it upon the applicant entering into a $100 good behaviour bond for three years with supervision during the first two years. The applicant entered into the bond.

The Director of Public Prosecutions for South Australia decided not to appeal.  In argument before Justice Sulan, the Director, who argued the case personally, had submitted that to impose a suspended sentence would not be appealable error, though that was not the sentencing course he preferred.

On 12 August 2003 the Attorney-General for South Australia gave a direction to the Director of Public Prosecutions pursuant to section 9(2) of the Director of Public Prosecutions Act 1991 (SA) directing the latter to appeal against the sentence as too lenient. The Director applied for leave to appeal on that day. On 1 September 2003 the applicant filed a summons contending that the direction was invalid. This summons was heard by a Full Court on the same day as the Director’s application for leave was heard by the Court of Criminal Appeal, namely 18 September 2003, but before it. The same three judges comprised each court.

On Friday, 7 November 2003 the Full Court, namely Justices Prior and Vanstone, with Chief Justice Doyle dissenting, dismissed the summons.  On the same day the same judges formed a majority of the Court of Criminal Appeal and granted leave to appeal.  They allowed the appeal and they set aside the sentence.  Again Chief Justice Doyle dissented.

The court then adjourned until Monday, 10 November 2003 to allow the applicant time to consider whether to call further evidence and whether the resentencing should be conducted by the Court of Criminal Appeal or a single judge.  On Monday, 10 November 2003 the applicant made the following unsuccessful applications to the Court of Criminal Appeal:  (a) to remit the matter to the sentencing judge; (b) to disqualify Justice Vanstone on grounds of prejudgment; (c) to postpone the resentencing process until this Court heard an application for special leave to appeal, both against the dismissal of the summons by the Full Court and against the allowing of the Director of Public Prosecutions’ sentence appeal by the Court of Criminal Appeal.  The Court of Criminal Appeal then listed the resentencing hearing for 11 o’clock today, Adelaide time.

On Tuesday, 11 November 2003 the applicant filed a special leave application relating to the dismissal of the summons only.  He also filed a summons seeking an order that further proceedings in the Court of Criminal Appeal of South Australia be stayed until the determination of the application for special leave.  That summons was supported by an affidavit of Jonathan Charles Clarke which advances various contentions more fully developed this morning by counsel for the applicant.

I indicated to the parties that I have read affidavits of the applicant which have been filed dated 1 September 2003 and 6 October 2003 together with the transcript of the Court of Criminal Appeal’s proceedings of 10 November.  The parties had no objection to this material being taken into account.

Counsel for the applicant contended that if the orders sought were not made now, the Court of Criminal Appeal will, later this morning, consider various matters.  One question which will be considered is the parameters of any cross‑examination of the applicant if he is called to give evidence.  It was submitted that it is possible that he may be cross‑examined at large on issues of culpability with a view to demonstrating that the factual basis on which the sentencing judge proceeded was erroneous.  It was submitted that that is a large and irreversible prejudice and that there was to be taken into account the associated prejudice of having to make an election to give evidence or not in those circumstances today.

The second matter that was mentioned was that the court might proceed to resentence the applicant and might impose a custodial sentence, all or some of which might have to be served, that is to say a custodial sentence unsuspended.  Reference was made to observations of Justice Vanstone in paragraph 118 of the Court of Criminal Appeal’s judgment in which she – and the following words are intended to be neutral – indicated her attitude to what sentence might be appropriate on resentencing.

It was said that an application may be made later this morning that she should not further participate in these proceedings on the ground of a reasonable apprehension of predetermination and it was said that that was another circumstance making it invidious for the applicant to have to elect whether or not to give evidence now.  It was also pointed out that questions of the future progress of the proceedings would arise in view of the fact that the minimum number of judges who could hear the appeal is three.

A further matter to which attention was drawn was Justice Vanstone’s indication that in light of various matters she would now be inclined to impose an unusually low non‑parole period and the applicant pointed out that, implicit in that statement, was that there would be a non‑parole period, that is a period of sentence which would have to be served.

It was pointed out that inevitably there will be some delay before this Court could hear the application for special leave to appeal and, if special leave were granted, before it could hear the appeal itself and it was submitted in substance that it would be oppressive that the applicant should have to suffer the burden of custodial punishment in circumstances where, ultimately, the appeal might succeed.  In sum, the applicant submitted that all those circumstances were exceptional circumstances.

The applicant also submitted that he had been readmitted to bail on conditions no less onerous, and possibly rather more onerous, than those which were in place before he was sentenced.  It was pointed out that this was not a case of a person who had been sentenced to imprisonment but who had then obtained bail, but who faced the prospect of being recommitted to gaol in the event of an appeal against that sentence succeeding.  Here, there was no sentence in place.

Finally, the applicant drew attention to the fact that it has been, rightly or wrongly, the practice of this Court to grant bail only in very limited circumstances, whether before a special leave application succeeds or after it succeeds and before an appeal is heard.  The Solicitor‑General contended that that last matter was, in effect, an argument against the application because it exposed the application as a backdoor way of obtaining bail in circumstances in which the front door would be, if not locked, at least difficult to enter.

It was basal to the Solicitor-General’s arguments that the application amounted to an impermissible fragmentation of the criminal process.  He submitted that if, when the Court of Criminal Appeal determined what the further sentence should be, error had been committed, it would be possible, depending on the circumstances, for the applicant to demonstrate that it would be unjust for the applicant to spend time in custody pending any further application for special leave to appeal or amendment of the present application for special leave to appeal.

He submitted that Justice Vanstone had on Monday cleared up any misunderstanding based on paragraph 118 of her reasons for judgment and he concluded by submitting that though Chief Justice Doyle dissented, his only criticism of the direction which the Attorney had given to the Director was a criticism based on form.  I can, perhaps, deal with that point to which counsel for the applicant took strong objection by saying that it does not seem in any way determinative of the outcome of the proceedings now.

In reply counsel for the applicant met the Solicitor‑General’s complaints about fragmentation by saying that as it was the history of the case had revealed that it had become fragmented.  He referred to the fact that the Director himself had appeared at the sentencing hearing before Justice Sulan and had submitted that the sentence eventually imposed was open and not liable to be overturned on appeal, that he had decided not to appeal, that he had only appealed or applied for leave to appeal because the Attorney‑General had directed him to do so, and in the circumstances, in effect, that there was not at this stage any impermissible fragmentation of the process as a whole.

No argument was directed to the question of whether there was a substantial prospect that the special leave application would be granted.  In view of Chief Justice Doyle’s dissenting judgment, it must, I think, be accepted that there is certainly an arguable case for special leave to appeal.  It is convenient to proceed on the assumption that that prospect is a substantial one without deciding whether it is or not.

It should first be noted, I think, that this application is not an application to stay the execution of an order, but to prevent the completion of the hearing of proceedings which might, or might not, result in a particular order being made.  Further, it is an application which invites this Court to intervene in criminal proceedings before they are complete.  That would be a very exceptional course for this Court to take.

A third matter can be highlighted by reference to a passage in Chief Justice Doyle’s judgment in the proceedings in the Full Court challenging the Attorney-General’s direction.  In explaining why it was that the judges had decided that the administrative law challenge and the application for leave to appeal against sentence should be heard together, in the sense that one should be heard immediately following on the other, he said: 

an application by the Director for leave to appeal against sentence should be heard with as little delay as possible.  An application that might result in a sentence being increased should not hang over the head of the offender for any longer than necessary.  Adjourning the Director’s application until the judicial review proceedings were decided might cause significant delay.  It is possible that either party would make application to the High Court for special leave to appeal against our decision, causing further delay.  It seemed desirable that we should hear the submissions on the Director’s application so that we would be in a position, if we thought it appropriate, to give a decision on that application.

Further, the Chief Justice said on Monday, 10 November:

If we don’t pass sentence, the High Court might refuse to entertain an application for special leave, saying the matter is still before the court.  There’s that problem and, secondly, if we accede to your submission –

that is to say the submission of counsel for the applicant then appearing –

and if special leave is granted, we will possibly contemplate not passing sentence for three, five, six months, who knows.  Once you get onto that track, it could be a year’s time before we get to pass sentence, if the High Court grant special leave, hear the special leave application, some months later give special leave and give a decision.

In my judgment, there is considerable power in the points which the Chief Justice made in that fashion.  This application carries with it, if it succeeds, inevitable risks of long delays which are adverse to the public interest in the speedy administration of criminal justice, particularly so far as Crown appeals are concerned and which are, indeed, adverse to the interests of the applicant.  It is not to his advantage that uncertainty as to his punishment be left hanging over his head for another year or more.  In my judgment, the proper course is for this Court not to intervene at this stage, but for the proceedings in the Supreme Court to come to an end.  What course the applicant wishes to take thereafter is a matter for him in the light of whatever happens hereafter.

The applicant, in effect, submitted that his special leave application would be futile if he is sentenced to a term of imprisonment and has to spend a significant period in gaol before succeeding in his application to this Court.  If that argument were sound, it would justify the grant of bail to all applicants for special leave complaining of errors in the process leading to their conviction or their sentence.

The applicant has isolated one argument, at present, for the grant of special leave.  Perhaps he will have available to him more arguments after he has been sentenced.  His existing argument is of an unusual character, but its unusualness does not make it different in principle from the wide range of complaints which criminal defendants can deploy and the present applicant is seeking an even more unusual order, namely one restraining the Court of Criminal Appeal from completing the task of resentencing on which it is, in effect, part heard.

It was accepted on behalf of the applicant that if the applicant desires to complain about the sentence to be imposed, among the complaints which can be ventilated is a complaint that the majority of the Full Court erred in dismissing the summons.  The heart of that complaint is a contention that, in the particular circumstances of this case, the Director of Public Prosecutions did not truly have standing to institute the application for leave to appeal and, hence, the sentence that resulted from that process ought to be set aside on that ground.

It is necessary to bear in mind that in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited [No 1] (1986) 161 CLR 681 at 684 Justice Brennan said that:

A stay to preserve the subject‑matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.

In my opinion, it is necessary to show that the circumstances are even more extraordinary before a stay of proceedings is granted where the remedy sought is a remedy in the nature of interlocutory injunction to restrain the completion of part‑heard criminal proceedings.

Justice Gaudron was of the opinion that an exceptional case had to be established in order to succeed in civil proceedings brought to prevent the laying of criminal charges, namely that it would be an affront to justice or that the safeguards available in criminal proceedings are clearly inadequate to protect against the injustice involved:  see Elliott v Seymour (1993) 119 ALR 1 at 7‑8. If that is the case, it will be even more exceptional that a part‑heard appeal in criminal proceedings will be interrupted.

The present application is an application obviously designed to ensure that the applicant remains at liberty until the special leave application, and any appeal that results from it, are determined, that is, it is in substance an application for bail.  As was remarked in the course of argument, it is rare for this Court to grant bail pending the hearing of the special leave application.  In my judgment, the circumstances are insufficiently exceptional to justify the relief sought and I would dismiss the summons. 

Is there any other order, Mr Solicitor?

MR KOURAKIS:   I seek costs, if the Court pleases.

HIS HONOUR:   Mr Walker?

MR WALKER:   In our submission, your Honour, it is not appropriate to order costs in favour of what is effectively the Crown position in a case which is integrally related to criminal process.

HIS HONOUR:   But it is a civil proceeding, is it not?

MR WALKER:   Yes, it is.  However, costs are in discretion and the substance of the matter is that it relates to criminal process and goes to the matter yet to be argued in this Court of the way in which the Crown has conducted itself in the inception of the Crown sentence appeal.

HIS HONOUR:   The Solicitor-General applies for an order for the costs of the summons.  The applicant opposes that order on the ground that, though the proceedings are civil, they are in aid of vindication of the applicant’s position in the criminal proceedings, that is, the sentencing appeal.  That submission is sound as far as it goes, but the fact remains that the proceedings are civil.  The bar on the grant of costs in favour of the Crown in criminal proceedings does not apply and, in my judgment, the order requested ought to be made.  So I would add an order that the applicant pay the costs of the respondents and I would certify for counsel. 

Is there any other order that is needed?

MR WALKER:   No, your Honour.

MR KOURAKIS:   No, your Honour.

HIS HONOUR:   Thank you, gentlemen.  The Court will now adjourn.

AT 9.44 AM THE MATTER WAS CONCLUDED