Pilkinton v Hatty - [1992] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Registry No C12 of 1992
B e t w e e n -
STUART HEARNE PILKINTON

Applicant

and
FREDERICK GORDON HATTY

Respondent

Application for special
leave to appeal

BRENNAN J

TOOHEY J

McHUGH J

Pilkinton

25/9/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 25 SEPTEMBER 1992, AT 11.11 AM

MR T.E.F. HUGHES, QC

May it please the Court, I appear in

this matter with my learned friend,
MR S.F.C. WILCOX for the applicant. (instructed by
Abbott Tout Russell Kennedy)

MR M.F. ADAMS, QC:

If it pleases the Court, I appear with

my learned friend, MS J.A. WOODWARD, for the
respondent. (instructed by K.J. Crispin, QC,
Director of Public Prosecutions, Australian Capital
Territory)

BRENNAN J:

Mr Hughes, before you commence, I have a

certificate from the Deputy Registrar that reads as
follows:
The Director of Public Prosecutions for the
Australian Capital Territory, a respondent in
these proceedings, has filed an appearance
supporting the application for special leave to
appeal.

Is the Director of Public Prosecutions a
respondent?

MR HUGHES:

The respondent is the prosecutor.

As I

understand it, the case is in charge of the
Director of Public Prosecutions - - -

MR ADAMS:

As I understand it, the Director is conducting

the matter on behalf of the informant. That is as
I understand it, though if there were formal
requirements, I must say I have not seen any such formal requirements, but I think the Commonwealth Director instructed counsel below and the matter
has continued in that way since the first appeal to
the Supreme Court of the Australian Capital
Territory.

BRENNAN J: Are there two directors involved in this now?
MR ADAMS:	No, there is only one, having regard to the

institution of the Office of Director of Public
Prosecutions for the Australian Capital Territory,
and he has taken over, so far as this matter is
concerned, what was hitherto the responsibility of
the Director of Public Prosecutions for the
Commonwealth.

BRENNAN J:

Do I take it that his interests are in your

hands?

MR ADAMS:

Yes, that is so, Your Honour.

The form of the

letter, however, requires some clarification. The
indication that we have given is that we do not
propose to submit to the Court, with respect to
that issue that relates to the question of intent,

Pilkinton

25/9/92

that that is not a matter in which this Court
should grant special leave.
In relation to the other issue, namely whether

Davern v Messel applies in these circumstances so
that the appeal to the Full Court of the Federal Court from the judgment of Mr Justice Foster was
open, we propose to submit that special leave
should not be granted by this Court in respect of

that question. I am not entirely sure that the
appearances filed in the registry make that clear,
but the matter has certainly been made clear
between the parties.
We have distinguished between the two

fundamental…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pilkinton v Hatty and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1992] HCATrans 273
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Stuart Hearne Pilkinton, sought leave to appeal against a decision of the Full Court of the Federal Court. The respondent was Frederick Gordon Hatty, the Director of Public Prosecutions for the Australian Capital Territory, who conducted the proceedings on behalf of the informant.

The High Court was required to determine two principal legal issues. The first concerned the question of intent, specifically whether an honest belief that a course of action was required, and an honest belief that one was not misleading the court, would negate the intent necessary to constitute the offence of attempting to pervert the course of justice. The second issue related to the applicability of the decision in *Davern v Messel* to the circumstances of the case, and whether this rendered the appeal to the Full Court of the Federal Court from the judgment of Mr Justice Foster open.

The Director of Public Prosecutions indicated that while they would not oppose the grant of special leave on the issue of intent, they would oppose it on the question of jurisdiction, which related to the applicability of *Davern v Messel*. The court noted that the question of whether a belief needed to be reasonable or merely honest, as discussed in *He Kaw Teh*, might be a matter for ultimate determination, but the primary question on the intent issue was whether the applicant intended to mislead the court. The court indicated it would hear from the applicant's counsel before proceeding further.

Orders