Nicholson v The Queen

[1991] HCATrans 194

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S29 of 1991

B e t w e e n -

ROY WILLIAM NICHOLSON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 6 AUGUST 1991, AT 3.58 PM

Copyright in the High Court of Australia

Nicholson 1 6/8/91

MR M.A. GREEN, OC:  May it please the Court, in this

application I appear together with my learned

friend, MRS.A. FLOOD. (instructed by the

Director, Legal Aid Commission of New South Wales)

MR R.N. HOWIE, QC:  I appear with my learned friend, MR P.G.

BERMAN, for the respondent. (instructed by the

Solicitor for Public Prosecutions)

DAWSON J: Yes, Mr Green.

MR GREEN:  Your Honours, I hand up outlines of our argument

and also yet another amended list of authorities.

DAWSON J: It is a fairly short point, is it not, Mr Green?

MR GREEN:  Yes, I would agree with that, yes, it is.

DAWSON J: Perhaps if you make it.

MR GREEN:  Your Honours, before going to the argument, we

felt it proper to advise the Court that there has

been filed another application for special leave in

this Court which includes the grounds for special

leave that are encompassed in our application and

that is the matter of George Savvas. I have handed up this morning a copy of that judgment and we have

been advised by Mr Gruzman of senior counsel, who I

think intends to argue that application - and we

have seen a copy of the draft grounds - that he

goes further than we do, but the lack of the Carr

direction is central to his argument. And he also

goes on, as I understand it, to take in the ground

of a lack of a constitutional basis in this Court

for the ruling in McKinney, the prospective rule of

practice in McKinney.

DAWSON J:  The lack of a constitutional basis?

MR GREEN: Yes, that is what I understand, Your Honour.

This was raised, that His Honour Mr Justice Kirby's

judgment in Savvas in dissent, on page 47, does

raise this matter. Savvas, of course, as
Your Honours are aware, is an unreported decision

of the New South Wales Court of Criminal Appeal of

25 June of this year. At the top of page 47

Mr Justice Kirby says:

In this Court, there is no point in

questioning the constitutional authority of a

Court created by or under Chapter III of the
Constitution, to engage in prospective

overruling. It is not for us to say that such

activity amounts to an invasion of the

legislative functions of Parliament

established by Chapter I. The Supreme Court

of the United States has asserted such a

Nicholson 2 6/8/91

power. The High Court of Australia may

equally do so.

DAWSON J:	I am sorry, I am lost.
MR GREEN:	Page 47, Your Honour, of Savvas.

GAUDRON J: Is this in italic script?

MR GREEN:  No, it is not. Is there a deficiency in the

copies I handed up to the Court?

McHUGH J:  Mine is all right but I think there is in the

other two copies. In fact, I doubt if it is the

proper case.

DAWSON J:  I see, it is different pagination. I have got it

too. There are two 47s.

MR GREEN:  I am sorry. Mr Justice Kirby is the second

judgment, of course.

It is clear from the terms of the dissenting opinions in McKinney, that differing views on

the legitimacy of declaring a prima facie rule

of practice for the future exists within the

High Court itself.

Your Honours, we simply bring this matter to the

notice of the Court. If this Court decided today

that it would be more profitable to hear argument

at a later time or in conjunction with Savvas then

we would not object. Otherwise, of course, if the

Court is not so persuaded I will attempt to go on

with my argument today.

GAUDRON J: Are you, in fact, seeking an adjournment?

MR GREEN:  No, I am not, Your Honour. We just thought we

should bring this matter to the notice of the

Court.

DAWSON J: Well, what are you bringing to our attention

though and what do you want us to do about it?

MR GREEN:  I am simply - we thought it proper to bring this

matter to the attention of the Court in case

Your Honours decided that it would be more

profitable for the Court to hear both cases close

together, but I am making no application after

that. I am happy to argue this application today

if Your Honours are not satisfied.

DAWSON J:	The two cases do involve the same point, do they?
To a large extent, yes.
Nicholson	6/8/91
DAWSON J:	We are of the view that it would be more

convenient that the two matters should be heard

together in order that the point be finally

disposed of - if it can be finally disposed of on

an application for special leave. It may not.

MR GREEN:  Yes. I understand from inquiries in the registry

that the case of Savvas has only, I think, just

been filed, the application, and that it has not

been assigned to a particular list at this stage.

DAWSON J: Perhaps we will hear what Mr Howie has to say.

MR HOWIE:  I have no problem with that, Your Honour. It is

clearly - this is a back road, it seems to me, this

application, a back road to argue the

retrospectivity of McKinney. I think that is

really what this application is all about and I

think that is certainly what Savvas is all about

and if they are trying to do it by a constitutional

argument, these people - - -

McHUGH J:  It might end up that there is no ruling in

McKinney at all; they might be back to Carr. That

would seem to me to be the inevitable consequence

of their point.

MR HOWIE:  Anyway, Your Honour, the point is the same, it

seems to me. This applicant is trying to have

McKinney - - -

DAWSON J: It does seem - if there are two applications on

foot which raise the same point, it would seem so.

MR HOWIE:  At one stage we were actually trying to push to

have Savvas brought in today to be dealt with with

this matter.

DAWSON J:  It seems undesirable to deal with them one by

one. So perhaps if we adjourn this matter to

enable it - and you have indicated you have no

objection to that?

No objection.

be brought on at the same time as the application

in Savvas.

If it please the Court.

AT 4.07 PM THE MATTER WAS ADJOURNED

Nicholson 4 6/8/91