Pantano v The Queen

[1991] HCATrans 176

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl19 of 1990

B e t w e e n -

NICHOLAS PANTANO

Applicant

and

THE QUEEN

Respondent

Application for directions

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY. 23 JULY 1991, AT 9.34 AM

Copyright in the High Court of Australia

Pantano	1	23/7/91
MS L. JOHNSON:	I appear in this matter for Mr Pantano.	(of

Johnsons Solicitors)

MR s. KAVANAGH: If Your Honour pleases, I appear for the

Crown. (of the Director of Public Prosecutions,

New South Wales)

HIS HONOUR:	Now, what is the position in this matter at the present time?
MS JOHNSON:	Your Honour, the situation is that legal aid

has been applied for and it has been granted to

obtain an advice as to merit from the Public

Defender.

HIS HONOUR:  When was legal aid applied for?

MS JOHNSON: Well, that is a point of contention,

Your Honour. A legal aid form was sent off fairly

shortly after the Court of Criminal Appeal

decision. However, Legal Aid say that they did not

receive that form, and another form was sent about

two months ago. Aid was granted to obtain the

advice as to merit approximately a week and a half

ago.

HIS HONOUR: Well, you say that legal aid was applied for

shortly after 11 September 1990?

MS JOHNSON: Yes, Your Honour.

HIS HONOUR:  When did you discover that the Legal Aid

Commission was of the view that no application had

been made?

MS JOHNSON: Approximately two months ago, Your Honour, I

contacted them and they advised me that they could

not find any form within the Commission.

HIS HONOUR:  Did you not follow the matter up between say,

the middle of September last year and two months

ago?

MS JOHNSON: Well, Your Honour, I did not, no.

HIS HONOUR: Well, it seems extraordinary.

MS JOHNSON:-_ Your Honour, it does take quite often a long

time for legal aid to be granted.

HIS HONOUR:  Maybe it does take a long time. Perhaps it

would take less time if solicitors followed up

applications for legal aid.

MS JOHNSON:  Yes, Your Honour.

Pantano 2 JOHNSON 23/7/91

HIS HONOUR:  The real problem here, Ms Johnson, is that the

Court Registry's time is wasted in dealing with

matters and that, of course, not only adds to the

cost of running the Court - adds to the burden on

public funds - but it adds to the cost of

litigation so far as the parties themselves are

concerned.

MS JOHNSON:  Yes, Your Honour.

HIS HONOUR: Well, I do not regard your explanation as

satisfactory.

MS JOHNSON: Well, I apologize, Your Honour.

HIS HONOUR:  And I might say that in relation to this matter

and another matters in the list, I have been

contemplating taking the course of referring the

papers to the Law Society.

MS JOHNSON:	Yes, Your Honour.
HIS HONOUR:	And it is a course that I will take in the

future.

Now, is there anyone in attendance from the

Legal Aid Commission?

MR G. DURIE: If Your Honour pleases, I am the solicitor for

the Legal Aid Commission.

HIS HONOUR:	Yes.
MR DURIE:	If I could perhaps assist Your Honour with some

of the dates in this matter. The Commission,

Your Honour, received an application for legal aid

in this matter on 6 June this year. On 20 June an

for special leave, and a formal notification of that advice was sent to Ms Johnson

authorization was made to obtain an advice from the application

on 2 July.

HIS HONOUR:  Yes. How long do you anticipate that it will

take before the Commission can decide whether or not it is going to grant legal aid in connection with the application for special leave?

MR DURIE:  It would be decided fairly quickly after receipt

of the advice from the Public Defender.

HIS HONOUR:  When would you normally expect to receive

advice from the Public Defender?

MR DURIE: Well, the briefing of the Public Defender has

been done by Ms Johnson, so we are not in a

Pantano 3 23/7/91

position to advise Your Honour when the brief was

sent nor if advice has been received.

HIS HONOUR:	Has the brief been sent, Ms Johnson?
MS JOHNSON:	Your Honour, it was sent a couple of days ago

but the advice has not been received.

HIS HONOUR:	When do you expect to get the advice?
MS JOHNSON:	Your Honour, I do not anticipate that it would

be a matter that would take a long time for the
advice to be received. It was a plea at the outset
and in the Court of Criminal Appeal it was a matter

of a severity appeal only.

HIS HONOUR: Well, that is all it could be in the High

Court.

MS JOHNSON: Yes, Your Honour.

HIS HONOUR:  One matter that I would have in mind is that,

of course, it is only a very small percentage of
cases in which an application for special leave in

a matter of sentence·is successful.

MS JOHNSON: Indeed, Your Honour, I am aware of that.

HIS HONOUR:  And I would have thought that the Legal Aid

Commission, giving its attention to the
disbursement of the funds that it has at its

command, would be reluctant to expend money in the

pursuit of applications for special leave in

sentencing matters.

MS JOHNSON: Certainly, Your Honour, unless the application

had real merit.

HIS HONOUR: Yes, but the point I make is that applications

in sentencing matters have real merit only in a

very small proportion of cases.

MS JOHNSON:  Yes, Your Honour. I believe this to be one of

those cases.

HIS HONOUR: Well, it is necessary that this matter achieve

so~e degree of finality within a very short space

of time. Now, will you advise the Registry as soon

as advice is received from counsel?

MS JOHNSON: Yes, Your Honour, I will.

HIS HONOUR: Because, quite obviously, if the advice is

unsatisfactory then these proceedings ought to come

to a termination as quickly as possible.

MS JOHNSON: Indeed, Your Honour.

Pantano 4 23/7/91

HIS HONOUR:  Now, what about a summary of argument in

compliance with the rules? Is anything going to be

done about that?

MS JOHNSON:  Your Honour, as Your Honour has pointed out,

depending on the advice from counsel, from the

Public Defender, either the matter will be

withdrawn immediately or the compliance will be

carried out.

HIS HONOUR:  Ms Johnson, can I rely on you prosecuting this

matter with all due diligence from now on?

MS JOHNSON:	Yes, Your Honour.
HIS HONOUR:	And keeping the Registry informed?
MS JOHNSON:	Yes, Your Honour, you can.
HIS HONOUR:	Very well.  One thing I want to know from you

though is, why is it that an application for

special leave was filed without a supporting

affidavit?

MS JOHNSON:	Your Honour, I cannot answer that.
HIS HONOUR:	And why was it that the application for special

leave was not served on the OPP in accordance with

the requirements of the Rules?

MS JOHNSON:  Your Honour, I did not know that the OPP did not have a copy, I am terribly sorry. I will make

sure that they have a copy today, Your Honour.	I
am terribly sorry, I did not realize that.

HIS HONOUR:  These defaults are not confined to this case

nor are they confined to you. I am concerned that

to some extent a practice seems to have grown up in which an application for special leave to appeal is

filed and nothing else is done; not even service of

the application on the DPP. Now, that, it seems to

me, is a blatant non-compliance with the rules and	as far as the Court is concerned, I do not propose
to tolerate it in the future.

MS JOHNSON:  Your Honour, I apologize to the Court and to my

friend for that.	I was under the impression that
had-been done.	It is obviously an oversight by my

office and I do apologize to the Court.

HIS HONOUR:  Very well. We will conclude the matter on the

footing that I note your statement that you will

prosecute the application with all due diligence.

MS JOHNSON:	Yes, Your Honour, I shall.
Pantano	23/7/91
HIS HONOUR:	Very well.
MS JOHNSON:	Thank you, Your Honour.

AT 9.42 AM THE MATTER WAS ADJOURNED SINE DIE

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