O'Meara v The Queen

[2002] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S165 of 2001

B e t w e e n -

KENNETH IAN O’MEARA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 APRIL 2002, AT 3.10 PM

Copyright in the High Court of Australia

MR K.I. O’MEARA appeared in person.

MR R.D. ELLIS:   I appear for the Crown, your Honour. (instructed by S.E. O’Connor, Solicitor for public Prosecutions (New South Wales))

MR J.K. McDONNELL:   May it please the Court, I appear on behalf of the Attorney‑General for the State of New South Wales intervening.  (instructed by Crown Solicitor for New South Wales)

McHUGH J:   Yes, Mr O’Meara.

MR O’MEARA:   Yes.  Your Honour, as you said so correctly earlier, people must take responsibility for their own actions.  This is a case where the informant must take responsibility for his actions.  If you read the submissions, the informant laid State charges against myself and entered my home under the guise of a Commonwealth warrant, was ordered off the premises by myself, thereby terminating any right that he may have presumed to have had to remain on the premises.  This was found by the learned judge ‑ ‑ ‑

McHUGH J:   Well, you have findings of fact in your favour.

MR O’MEARA:   Yes.

McHUGH J:   The critical question in this application seems to me to be, first of all, is there any fundamental question of law involved in the case which would warrant the grant of special leave to appeal?  Secondly, did Judge Moore err in the exercise of his discretion?  If he did, did the Court of Criminal Appeal err in the way it disposed of the case?  They seem to me to be the three principal questions in the application.

MR O’MEARA:   Thank you, your Honour.  In my submission, the Court of Criminal Appeal did err and that, as I understand it, is a basis for special ‑ ‑ ‑

McHUGH J:   Well, you have to do a bit more than show that it erred.  We do not sit here as a Court of Appeal.

MR O’MEARA:   No.

McHUGH J:   One thing that you must bear in mind, Mr O’Meara, is that this is not the end of the line in the sense that if the order stands, that is the order of the Court of Criminal Appeal stands, you would have to undergo a trial, of course, but if things turned out and you were convicted, it may well still be open to you to allege that you had been denied a fair trial by reason of the absence of the material.  After all, what the court decided here is that it was not satisfied – or it said you had failed to demonstrate that unless the proceedings be stayed until the materials were returned to you, you would be deprived of your right to a fair trial.

MR O’MEARA:   That is correct.

McHUGH J:   Yes.

MR O’MEARA:   The Court of Criminal Appeal relied on authorities that only related to the granting of a permanent stay, and that is at page 59 points 35 to 37:

Thus, a permanent stay may be based upon the court’s determination that the proceedings will inevitably fail or that the proceedings involve irremediable prejudice to the accused ‑ ‑ ‑

McHUGH J:   Well, I appreciate that, Mr O’Meara, but the reality is that if Judge Moore’s order had stood, I cannot see them putting you up for trial, because I cannot see them producing any documents.  It is highly unlikely, given the denial by the detective involved, that you would be seeing any documents being produced.

MR O’MEARA:   Well, that comes back to what your Honour said with great wisdom earlier here today, and we apply that to the detective.  The detective must take responsibility for his own actions.  He had no right to be on my premises.  He had no right to remove the material that was necessary for my defence to the charges brought ‑ ‑ ‑

McHUGH J:   Mr O’Meara, you have all the merits in your favour apart from this question as to whether or not the judge erred in making a stay order and, if he did, whether the Court of Criminal Appeal erred in making the order that it did, and then assuming that you can make good one or other of those propositions in your favour, the question then arises as to whether or not it is a case that warrants the grant of special leave to appeal.

MR O’MEARA:   Thank you.  Obviously the learned judge granted a conditional stay.

McHUGH J:   Yes.

MR O’MEARA:   It is probably in issue, on what your Honour says, as to whether the State detective would be prepared to meet the conditions of that stay.  The Court of Criminal Appeal did say, in fact, at page 59 point 45  down to point 48:

A limited or conditional stay may be granted until such time as the prejudice to which the defendant would otherwise be subjected if the proceeding were to continue has been removed.

Now, that, your Honours, is the total fault at the foot of the judgment of the Court of Criminal Appeal.

McHUGH J:   Well, I think it is really though at 61 through 62, is it not, where they say that is where the judge erred, paragraphs 41, 42 and perhaps 43?

MR O’MEARA:   Yes, that deals with the permanent stay, with respect, your Honour.  This is a conditional stay.

McHUGH J:   Well, the principle must be the same.  The question is whether or not “it is possible to relieve against the unfair consequence of the loss of that material by way of directions to the jury” and so on.

MR O’MEARA:   With respect, your Honour, the learned judge in the District Court considered the possibility of a permanent stay and decided against granting a permanent stay because he felt that what had transpired did not meet the test required for a permanent stay.  The learned judge had the advantage that we do not have here today:  he saw all the evidence unfold in front of him, and I will not bore you with ‑ ‑ ‑

McHUGH J:   You must have been listening to Justice Kirby.  That is a favourite saying of his, the trial judge hears the evidence unfold, but anyway, go on.

MR O’MEARA:   It would have cost me more than $8.00 to come here by cab today but, no, I do not recall that ‑ ‑ ‑

McHUGH J:   No.  Anyway, you are in good company.

MR O’MEARA:   Thank you.  Now, it was in issue what the New South Wales detective did while in the house, and that is at – I have page 5 there.  We will not worry about that.  Judge Moore found there was a complete loss of evidence.  Judge Moore found that that evidence could not be effectively replaced – page 25 points 6 to 19.  There was – and I take the Court to page 18A points 40 to 45 – an “absence of detail” as to the New South Wales’ detectives and the Australian Federal Police officers’ activities.  Judge Moore makes the point that any detail as to their activities notably came from my cross‑examination.  We compare that to the failure of the defendant to these proceedings to call available evidence and that available evidence was a video tape of the search and seizure, and that is evidence at page 19 points 30 to 31.

McHUGH J:   Yes, but you are pushing open an open door.  All these matters have been found in your favour.  All the merits are on your side.  You do not have to worry about that.  The judge found they took your documents.  The real question is, what is the effect of it?  Does it prejudice your trial?

MR O’MEARA:   Yes, it does.  The Court of Criminal Appeal found at one point of time that I could replace photographs and there is no evidence that those photographs could be replaced.  That evidence would come into play in the identification of the person, who was supposedly myself, by a neighbour, but I know it was not me.  It was the person whose photograph was taken.  Unfortunately not just the photograph was taken.  The scale of the search caused Judge Moore to state there was a wholesale removal of documents.  There was over 2,000 documents removed alone, which were not covered by the search warrant.  Now, included in that ‑ ‑ ‑

McHUGH J:   I know, you feel a great sense of injustice about that, but it does not advance your application here.  What you have to show is that the only remedy that was open was a stay of the proceedings because you could not fairly defend yourself.  Now, the Court of Appeal found as a fact and as a matter of discretion that you had not shown that; you had failed to demonstrate that.  So it turns on a question of fact and, as you probably heard during the last case, this Court does not sit here to determine those questions and it is what is called a discretionary judgment and it is also an interlocutory judgment; it is not a final judgment.  I mean, strictly speaking, you could go down to the District Court tomorrow and make another application.  Now, you would not get very far unless you had some further evidence, no doubt, but the fact is that it is not a final judgment in any way.

MR O’MEARA:   Would you like to tell Judge Blanch that because I have tried to put on a motion now to say, in fact, that the offence is not known to law because Article 15 of the ICCPR, which is attached as a schedule to the Human Rights and Equal Opportunity Act, applies as domestic law because section 13(2) of the Acts Interpretation Act ‑ ‑ ‑

McHUGH J:   You are wasting your valuable time, Mr O’Meara.

MR O’MEARA:   Yes.  Well, that is right.  Now, the Court of Criminal Appeal did not deal with all the issues.  The Court of Criminal Appeal did not deal with the competency of the applicant to bring the proceedings.  Unfortunately for the applicant, the applicant has the same name as a State ‑ ‑ ‑

McHUGH J:   This is a hopeless point, Mr O’Meara.

MR O’MEARA:   Okay, you do not want to hear that one.

McHUGH J:   No.

MR O’MEARA:   If this Court is to follow the actions of the Court of Criminal Appeal and allow an informant to proceedings to remove material, prima facie steal it, which is an offence under the Crimes Act 1900 section 19, particularly, I would suggest, pervert the course with intent, then this Court and the Court of Criminal Appeal would be condoning an illegality.

McHUGH J:   No, it is not, Mr O’Meara.  If there has been a criminal offence committed by anybody, that person can be prosecuted, but the fact that that person has criminal offence is not necessarily an answer to your application to stay the hearing of your charges, unless you can go so far as to show that your fair trial would be prejudiced, and that has been found against you.

MR O’MEARA:   Yes, by the Court of Criminal Appeal.

McHUGH J:   Yes.

MR O’MEARA:   And, in fact, the appeal was brought out of time because the appeal was not lodged until after the time granted by the Court of Criminal Appeal to lodge the appeal.

McHUGH J:   Well, I know, but these are not special leave points, but, in any event – and there is a strong argument the Crown is not bound by time limitations, in any event.

MR O’MEARA:   Okay.  Prejudice to myself, quite seriously, how would you expect me to mount a defence now that all my defence material has been removed from my possession?  How could I mount a defence?  This issue, your Honour, goes to the very root of the integrity of law enforcement in this country.  Do not take it lightly.  Do not hang on a technical hook.  If we allow informants to enter people’s houses and remove all the evidence gathered for their defence so that you have innocent people charged into court, absolutely defenceless to the charges brought by the informant because of the informant’s actions, then, your Honour, there is no law, and I think Mr Temby said that in his term in ICAC.

McHUGH J:   This Court has never hesitated to intervene when police conduct has gone beyond the pale.  You have a case like Ridgeway, you have earlier cases in this Court, but the point is that so far the finding of fact against you is that your fair trial has not been prejudiced or, at least, you failed to demonstrate it, and that is the difficulty and you would be asking us to try a question of fact in respect of a discretionary and interlocutory judgment.

MR O’MEARA:   It is not a question of fact, with respect, your Honour; it is a question of judgment.

McHUGH J:   Well, that makes it even harder to appeal.  It is a discretionary judgment.  It is a value judgement upon which people’s views differ.  I mean, when you ask what is a fair trial, it is a value thing.  It is not like black and white.

MR O’MEARA:   At page 55, what I am saying is the Court of Criminal Appeal misdirected itself on a number of occasions on material issues to such a point that its judgment should be put aside.  At 55:

The second group of materials referred to in the Respondent’s Affidavit are said to be statements from the tenants of the Tahmoor property as at the date of the search and seizure –

et cetera.  Now, we compare that to page 45 points 40 to 41.  The notice of motion sought specifically orders that I had been unfairly and irrevocably prejudiced on the following grounds, including (a)(ii):

The originals of all statements by witnesses for the defence, including contact details –

The position I am left in today is if, as it appears, that I am going to run 50 per cent of the time able to run my defence is that I potentially go to trial and I cannot recontact any of the witnesses.  Now, your Honours, if you consider that that is not prejudicial to myself, then I would like to have a word to you in private and tell you what I think of your judgment, and I really do not believe that two Judges of the High Court ‑ ‑ ‑

McHUGH J:   The Court of Appeal found that these matters did not prejudice you, because they obviously accepted the view that you would not lose the statements of all your witnesses.  A lot may depend upon how the case was argued in front of them, but you had the onus – once the discretion of Judge Moore was set aside, you had the onus of convincing the Court of Criminal Appeal that your trial would be prejudiced.

MR O’MEARA:   No, I did not.

McHUGH J:   Well, the onus is on you to seek the stay, Mr O’Meara.

MR O’MEARA:   Yes.

McHUGH J:   And once you set aside Judge Moore’s judgment, then it is a matter for the Court of Criminal Appeal.  They could have remitted it back to a judge of the District Court or they could have heard it themselves.  They elected to hear it themselves.

MR O’MEARA:   Yes.

McHUGH J:   Then you were back to square one.

MR O’MEARA:   No, I was not back to square one.  I was behind square one.

McHUGH J:   You might have been ahead of square one, because you had some important findings of fact in your favour.

MR O’MEARA:   Yes.

McHUGH J:   I see your time is up, Mr O’Meara.

MR O’MEARA:   Our time is up, obviously.  Thank you.

McHUGH J:   Thank you, Mr O’Meara.  No, the Court need not hear you, Mr Ellis.

The applicant seeks special leave to appeal against an order of the Court of Criminal Appeal of New South Wales that set aside an order made by a District Court Judge staying the hearing of certain criminal charges against the applicant.  The District Court judge held that the hearing of the charges should be stayed until the prosecution returned documents and other materials to the applicant.

For the reasons given by the Court of Criminal Appeal at pages 61 and 62 of the Application Book, the discretion of the District Court Judge miscarried.  It was then a matter for the Court of Criminal Appeal to determine whether to remit the matter to the District Court or to rehear the matter on the evidence and materials before it.  The Court of Criminal Appeal chose to determine the matter itself.  It held, and I quote from page 62 of the Application Book:

that the Respondent has failed to demonstrate that unless the proceedings be stayed until such time as those materials, or copies of them are returned or provided to him, he will be deprived of his right to a fair trial.

The decision of the Court of Criminal Appeal involved a discretionary and interlocutory judgment concerning a matter of practice and procedure.  Moreover, the application for a stay failed because the Court of Criminal Appeal thought that the applicant had not established that his trial would be unfair.

Ordinarily, special leave would be granted in such a case only where it arguably appeared that the discretion of the court below had miscarried by applying or failing to apply some fundamental principle of general application. The present case, however, turned on its own facts and circumstances. It is not a case that involves any special leave point. There is no substance in any of the other points raised by the applicant. In particular, section 4 of the Director of Public Prosecutions Act 1986 (NSW) is not inconsistent with section 5 of the Director of Public Prosecutions Act 1986 (Cth).  The two Acts operate in different jurisdictions.

Accordingly, the application for special leave to appeal is dismissed.

AT 3.35 PM THE MATTER WAS CONCLUDED