Polyukhovich v The Commonwealth of Australia

[1990] HCATrans 221

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AS of 1990

B e t w e e n -

IVAN TIMOFEYEVICH POLYUKHOVICH

Plaintiff l

and

THE COMMONWEALTH OF AUSTRALIA

and ROBERT WILLIAM REID

Defendants

Application for stay

GAUDRON J

(In Chambers)

Polyukhovich(4) 1 12/9/90

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 12 SEPTEMBER 1990, AT 11.18 AM

Copyright in the High Court of Australia

MR M. GRAY, OC:  Your Honour, I appear in this matter with

my friend, MR N. YOUNG, and my friend,

Associates) MR D. STOKES. (instructed by David Stokes &

MR G. JAMES, OC:  May it please the Court, in this matter I

appear for the Commonwealth of Australia and for

the second-named defendant, with my learned friend,

MR G. NIEMANN. (instructed by the Australian

Government Solicitor and by the Director of Public

Prosecutions)

HER HONOUR:	Yes, Mr Gray?
MR GRAY:	Your Honour should have, I hope, an affidavit in

support and a further supplementary affidavit in

this matter.

HER HONOUR:  I do believe I have, Mr Gray. It might be

necessary to confirm that we, in fact, have exactly

the same documents because the ones I have came by

fax.

MR GRAY:  Yes, Your Honour.

HER HONOUR:  Yes, I do. I have an affidavit of

David Francis Stokes and a further affidavit of

David Francis Stokes. Is that right?

MR GRAY:	Yes, Your Honour.
HER HONOUR:	Yes, well I think that is correct and I think the exhibits referred to in those affidavits seem
to match the contents of the affidavit.
MR GRAY:	In effect, the first affidavit sets out a

chronology of the events and the second affidavit

puts before Your Honour some of the medical

material that has been put before the courts in

South Australia.

Your Honour, the application is based in - I

understand, Your Honour, that my friends have got

some affidavits and a chronology which they have

neither filed - and, I think, we have been served

with the affidavits a few minutes ago; whether they

want to make some sort of application to

Your Honour or not.

HER HONOUR:  Yes, very well. Before that, Mr Gray, might I

ask, have your documents been filed or are they

merely in my possession?

MR GRAY:  I am told that they have, Your Honour.

HER HONOUR: Yes, thank you. Yes, Mr James, thank you.

Polyukhovich(4) 12/9/90

MR JAMES:  May it please the Court. Due to the short notice

of the application, affidavits have been prepared

on behalf of the defendants. Those affidavits have

not been filed. We would seek leave to file them

in Court. Copies of the affidavits have been made

available to my learned friend when we were able to

find him, which was at Court a few minutes ago, and

we have also prepared a chronology setting out the

various events which may assist .in the

understanding of the matter. Perhaps if I might

hand to my friend a copy of the chronology and he

can be looking at that and might I hand up, if

Your Honour pleases, three copies of that

chronology.

HER HONOUR:  Perhaps your junior might bring them. Thank

you.

MR JAMES:  As we do so and before he returns, it may be of

assistance to Your Honour if we were to hand up to

Your Honour the current publication of the

Attorney-General's Department embodying the

amending Act and the Crimes Act as amended which

contains section 20B together with its explanatory

memorandum and Hansard.

HER HONOUR:  Yes, thank you.

MR JAMES: Since it is not on my friend's list of

authorities, might we also hand up to Your Honour a

copy in photocopy taken from the Australian Law Reports of Castlemaine Tooheys v State of South

Australia, (1986) 67 ALR 553, three copies and one

for my friend.

HER HONOUR:	Yes, thank you.
MR JAMES:	I rely, if Your Honour pleases, on the two

several affidavits of -

HER HONOUR:	Now, the affidavits were not handed to me.
MR JAMES:	No, not yet, I am doing so now.
HER HONOUR: Yes, thank you.
MR JAMES:	- - - of Robert William Reid, sworn

12 September 1990 and 11 September 1990

respectively. Copies have already been handed to

my learned friend. Might I hand up a copy of each

affidavit and seek leave to file each of those
affidavits, and the affidavit of David John Hughes,

sworn 12 September 1990.

HER HONOUR:  Thank you.

Polyukhovich(4) 3 12/9/90

MR JAMES:  I should indicate to Your Honour that those

affidavits go to not only the chronology and the

procedure but also to the question of public

interest and the balance of convenience in relation

to an application of this kind.

MR GRAY:  And, in that regard, Your Honour, although I have

only had a very quick look at them, there is an

objection to the affidavits as to relevance and

be taken in relation to some of the affidavits there are certain objections which could probably

relating to unsourced information that is in them,

but I do not know that any of these objections are

really material. There is no problem with

Your Honour looking at the affidavits but I do not

want to say at this stage that we are accepting that they should be properly before Your Honour

because aspects of them seem to us to be quite

irrelevant to this question of stay proceedings.

HER HONOUR:	Yes, thank you.
MR JAMES:	Would Your Honour wish those affidavits read?

HER HONOUR: Well, they will have to be read, will they not?

MR JAMES:	No, but I am thinking of read formally.
HER HONOUR:	I think not, if you would allow me - is there

anything you - I will read them. If, perhaps, you

would want to draw my attention to anything in

particular before I undertake the reading, it might

be convenient.

MR JAMES: 

I should simply say, Your Honour, on the question

of whether they should be read as evidence in open
Court, that the affidavits, amongst other things,

set out the nature of the case, the prima facie

case.

HER HONOUR: 

Well, they will not be read in open Court.

MR JAMES: 

And I could indicate that they also refer to the

age and nature of the witnesses who it would be

sought to call. Now, I am not suggesting they
should not be read in open Court but I am drawing

Your Honour's attention to that.

HER HONOUR: Well, the normal course is for the matters to

be read by the Judge without them being formally

read in this Court, in any event.

MR JAMES:  May it please Your Honour.

HER HONOUR: Is there anything, though, you particularly

want to draw my attention to before I read them?

Polyukhovich(4) 4 12/9/90

MR JAMES :	No.
HER HONOUR:	Thank you.
MR JAMES:	It may be of some assistance to Your Honour too, if I was to provide Your Honour with an outline of
argument for which I should say it is prepared at very short notice and in some respects it may be repetitive, but if may be of some assistance to
Your Honour.
HER HONOUR:	Yes, thank you.

MR JAMES:  A copy has already been provided to my friend. I

hand·up three copies. Lastly, Your Honour, there
are two matters: the first is the transcript in
this Court of the directions hearing of 17 May 1990

on the adjournment of the constitutional challenge

and we would draw Your Honour's attention, in

particular, to what was said by Mr Charles, QC,

appearing on behalf of the plaintiff, concerning

the progress of the committal proceedings at page 8

to 9 thereof. I can provide my friend with a copy

if that is of assistance and since they are

referred to in the chronology, the entries for

28 August and 31 August. Might I hand up to

Your Honour the copy of the letters seeking the

basis of the application that is being made to the

South Australian Supreme Court to stay, as it were,

the proceedings before that court.

HER HONOUR:  I am moving through these quickly because they

correspond with documents I have already seen and I

have already read.

MR JAMES:  Yes. We are unaware those documents were filed.

HER HONOUR:	That is right, so if you are worried how it is that I am reading them so quickly, that is the
explanation. Directions hearing, Mr James, pages 8 and 9, was it?
MR JAMES: Yes, pages 8 and 9.
HER HONOUR:	Do you wish me to read anything else?
MR JAMES:	No, if Your Honour pleases. All that relates to

is what was said concerning the progress of the

committal proceedings in the light of the hearing
of the constitutional challenge and it did, of

course, predate the shooting occasion and the

subsequent hospitalization.

HER HONOUR:  Yes. I cannot find precisely what it is you

are referring to.

Polyukhovich(4)	12/9/90
MR JAMES:	17 May where Mr Charles indicates that he could

see no impediment to the committal proceedings

continuing.

HER HONOUR:	What line approximately?
MR JAMES:	Page 8, Mr Charles just following after:

HIS HONOUR:  Yes. Very well, is there

anything else you wish to say?

About point 3.

HER HONOUR:	Yes. Thank you.
MR JAMES:	I should indicate to Your Honour also there is a

typing error in paragraph 24 of the affidavit of

Robert William Reid, sworn 12 September 1990. The sense seems to come through, however.

HER HONOUR:	I certainly did not notice it.
MR JAMES:	It is page 19, paragraph 24, in the third line.
HER HONOUR:	The "not" should come out, should it?
MR JAMES:	No, the third line - the "not" should really be

"unable", but in the third line: "being put
forward" - "being put to the test the evidence of

the Soviet witnesses in the event the legislation

is upheld". That is what was intended by that.

The sense, I think, does come through from the

confused expression.

HER HONOUR:	Yes, thank you. Yes, thank you, Mr Gray.
MR GRAY:	Your Honour, the concern that we have with respect

to this relates, really, to the present proceedings

which are on foot in the Supreme Court of

South Australia. And Your Honour will see from

Mr Stokes' affidavit that it was on 27 August 1990

that the committal proceedings were interrupted by

the prosecution applying under section 20B of the

Crimes Act for the proceedings to be referred to

the court where the trial would take place.

I think it is important, Your Honour, for

Your Honour to appreciate the effect of section 20B

of the Crimes Act and if I could just take you

quickly to that, and perhaps also - - -

HER HONOUR: Well now, before you do that, I think I have to

go to the Crimes Act, do I not, itself rather than

the amendment to make sense of this?

MR JAMES:	The Crimes Act would be, probably, of greater assistance to Your Honour.	The Crimes Act is to be
Polyukhovich(4)	6	12/9/90

found at the back of the volume and section 20B

appears at page 59. It is best to start from the

numbered pages at the back, heading, Division 6.

HER HONOUR: Yes, thank you. Yes, I have that.

MR GRAY:  Your Honour, this is a new procedure which was

inserted by the Amendment Act of 1990 and takes

effect six months after 17 January 1990, in other

words, presumably 18 July 1990.

HER HONOUR: Well, does it apply?

MR GRAY:  I think it is important for Your Honour to

understand this.

HER HONOUR: Well, not because of that. I am looking at the

opening words:

in proceedings for the commitment of a person

for trial -

Were those proceedings, in fact, underway? Had you

not substituted informations? There were no

proceedings actually on the information, were

there, as such?

MR GRAY:  No, Your Honour. There were substituted

informations. The matter was before the court -

before a court of summary jurisdiction to commence

committal - - -

HER HONOUR: For an adjournment, was it not?

MR GRAY: Well, it was for an adjournment. Perhaps an even

stronger reason why Your Honour should stay the

present proceedings in the supreme court.

HER HONOUR: Well, I do not know about that.

MR GRAY:  Your Honour will appreciate that this only applied

to the information that was filed subsequent to the

original information.

HER HONOUR: In does not, in terms, do that at all. It

applies:

in proceedings for the commitment of a person

for trial - - -

MR GRAY:  I accept that, Your Honour. I accept that you can

take the view that there were, in fact, no such

proceedings until - - -

HER HONOUR:  Or equally, if you take the view that there

were proceedings, the question of the substitution

of the indictments is irrelevant, is it not?

Polyukhovich(4) 7 12/9/90

MR GRAY: Well, we would say not, Your Honour, because if

you take the view that proceedings were on foot

then the first information, the information of

27 January 1990, commenced those proceedings.

HER HONOUR:  But this does not say, "Where, in proceedings

commenced after", let us say 17 September or

whatever date, "17 July", it does not say that at

all.

MR GRAY: It does, Your Honour:

Where, in proceedings for the commitment of a

person for trial of a federal offence on

indictment, being proceedings begun after this

section commences.

HER HONOUR:  I see, thank you.

MR GRAY: That is why, if the proceedings commenced on the

first information that was laid on 26 January 1990,

then section 20B would not apply. The information

upon which the proceedings were referred to the

Supreme Court of South Australia was the

information of 7 August 1990 - sworn on

7 August 1990 - and it was after the proceedings

were, we say, purportedly referred to the

Supreme Court of South Australia that the first

information of 26 January 1990 was dismissed.

So, if the first information founded

proceedings, then we say section 20B, in its terms,

could not apply.

HER HONOUR:  Yes. Well, these are arguments not for this

Court though, are they?

MR GRAY:  No, they are not, Your Honour, but I think

Your Honour needs to understand what is going on in

South Australia at the present time with respect to

this because the fact is that there has been,

whether valid or invalid, a-referral of these

proceedings to the Supreme Court of South Australia

and it is sought in those proceedings to exercise

the matters that section 20B deals with and it is

the purported attempt to exercise those matters

which we wish to have stayed as we wish to have all

the proceedings stayed in this matter.

The effect, if section 20B applies, is that a

finding may be made in respect of the plaintiff as

to his fitness or unfitness to be tried.	Now, that
is a finding only open in these particular

proceedings. As far as fitness to be tried is

concerned generally in South Australia, that can

only take place prior to the trial of an indictable

offence.

Polyukhovich(4) 12/9/90

The other thing that Your Honour needs be aware of is that in South Australia there is a

requirement for a person to attend the committal

proceedings. The evidence is to be taken in the

presence of the defendant.

HER HONOUR:  Is there a requirement for a person to attend

proceedings under section 20B?

MR GRAY:  A matter of argument, Your Honour, I do not know.

We would say there is but I know my friend says

that there is not. The whole issue of just what

section 20B means - - -

HER HONOUR:  But, you see, we go back. I mean, again, it is

not a point for this Court.

MR GRAY:	I accept that, Your Honour.
HER HONOUR:	But how could there be a proceeding for the

commitment of a person if the person was not

present in court which is what happened when the

reference was made, is it not - which was the

situation when the reference was made? As I say,

again, it is not a matter for this Court, I

suppose.

MR GRAY: Again, that is another argument, I suppose,

Your Honour, but the requirement to be present during a committal is to be present during the taking of evidence and if there is any sort of

distinction that is made, there may be a

distinction made between - - -

HER HONOUR:  I mean I suppose one is brought up in a system

but certainly I have not known questions of fitness

to arise in circumstances where the person whose

fitness was not in court. I just do not know of

that happening.

MR GRAY:  Nor do I, Your Honour. And, I suppose, as

Your Honour says, perhaps these are not matters

really for Your Honour at this stage.	I think
Your Honour has to be alive to some of the issues

that have - - -

HER HONOUR:  They may be matters that ought to be agitated

elsewhere before an application is made to this

Court.

MR GRAY: Well, we would say, really, given everything, that

it is really appropriate for this Court at this

stage to grant a stay in relation to this. If

there are these matters, there is still continuing

proceedings going on affecting the plaintiff.

HER HONOUR: Well, there may or may not be.

Polyukhovich(4) 9 12/9/90

MR GRAY:  We would prefer this Court to put an end to the

proceedings now rather than allow the proceedings

to be further agitated with the prospect, if we are

unsuccessful with respect to staying those

proceedings or getting rid of them in some way,

still having to come back to this Court to make

this application. We would say that it is more

convenient to do it at this point in time which

really is the first convenient point in time having

regard to the unfitness to be tried proceedings

being taken on 27 August. It is that which really

triggers coming to this Court.

Your Honour is no doubt aware from a reading of section 20B that section 20B has several effects

on a person who is subject to orders under that.

There is a preliminary determination in

section 20B(2) where, if the person is found fit to

plead, the proceedings are remitted back. In

subsection (3), if the person is found:

unfit to be tried, the court must determine

whether there has been established a

prima facie case that the person committed the

offence concerned.

HER HONOUR: Well now, does that happen immediately?

MR GRAY: Well, arguably, yes. This section is an untried

section so whatever is said about it is really said

about it in terms of argument rather than there

being - - -

HER HONOUR:  Yes, but all of that really does raise

questions about the appropriateness of these

proceedings. I would have thought, but please

correct me if I am wrong, that the basis of your

stay or the gravamen of any prejudice which might

bring about a stay in this Court would be the

determination of a prima facie case, not the

question whether or not your client was fit to

plead.

MR GRAY:  Well, we would say the first as well as the

prima facie case.

HER HONOUR:  I am sorry, yes. What happens - you will have

to tell me - if he is found fit to plead, let us

say, there is no particular prejudice, is there,

other than, perhaps, in timing or the like?

MR GRAY:  No, I think that is probably right. If he is

found fit to plead on the initial fitness to plead,

yes.

HER HONOUR:  Yes. And then if he is found not fit to plead,

what is the consequence for that, both as concerns

Polyukhovich(4) 10 12/9/90

your client and as concerns the proceedings before

the supreme court?

MR GRAY: Well, one consequence arguably is the immediate

determination of the establishment of a prima facie

case that the person committed the offence

concerned.

HER HONOUR:  Now, where does that come from?

MR GRAY: That comes from section 20B(3).

HER HONOUR:  And "immediate" is your interpretation, is it?

MR GRAY: Well, I am still uncertain as to the scope of this

legislation and I can only put it in terms of an

argument. I would like to reserve the position as

to what I might really put because - I mean, as I

understand it, I think my friends think it can be

done in two stages but part of that determination

might well be bound up in a determination of what "court" means in section 20B and as to whether or not the Judiciary Act picks up and applies, along with section 20B, the ordinary procedures of

fitness to plead which require a jury or whether

the court - - -

HER HONOUR:  In South Australia, is it the same jury that

determines fitness to plead, and if the person is

fit, guilt or innocence?

MR GRAY:  It can or may not. I think there is an option as

to whether or not you have to empanel a special

jury to try fitness to plead and then empanel

another jury in order to determine guilt or

innocence although I think, and I can only put it

on the basis of thinking, that you can technically

have the same jury determine the two issues.

HER HONOUR: But, Mr Gray - I mean, I am not familiar with

this particular legislative regime but how does the

12 months fit into that prima facie case? Is there

not a requirement in 20BB? It is upon determining

a prima facie case?

MR GRAY:	Yes.
HER HONOUR:	So, the prima facie case has to be determined

before you determine - - -

MR GRAY: Before the 12 months runs, yes.

HER HONOUR: Well then it would be inconceivable, I assume,

that we are talking about the same jury determining

fitness to plead and guilt or innocence.

Polyukhovich(4) 11 12/9/90

MR GRAY: Well, this seems to be a real problem with the

legislation because - - -

HER HONOUR:  And do we know if it is a jury issue whether

there is a prima facie case?

MR GRAY:  We do not. I mean, all the legislation speaks of

is "court". You pick up the South Australian court

exercising federal jurisdiction, but you pick up
the trappings of that court and one of the

trappings of that court is its jury. And, of

course, "court" is used consistently throughout it.

There is no suggestion that one has a jury for	fitness to plead and then the court somehow or
other changes so you have the court determining
prima facie case or then, perhaps, another change
and the court making further determinations.

HER HONOUR:  It would be extraordinary, would it not, for a

jury to be determining a prima facie case?

MR GRAY: Well, I think I am gradually coming to that

conclusion although my friends, when they took this

application, were putting in on the basis that the

fitness to plead would be an issue for judge and jury.

HER HONOUR: Fitness to plead?

MR GRAY: Well, in terms of this legislation.

HER HONOUR:  What would happen then, apart from a prima

facie case, in terms of your client's liberty if

there is a finding of not fit to plead?

MR GRAY: Certain things - well, first of all there is the

determination of fitness to plead and then there is

a determination of prima facie case. If prima

facie case is found against my client, section 20BA

then provides in subsection (4) for the court to:

determine whether, on ·the balance of

probabilities, the person will become fit to

be tried, within the period of 12 months after

the day the person was found to be unfit to be

tried.

Now, flowing from that determination, either

the person will become fit to be tried, then a

determination is made concerning whether there be

orders for his detention in a hospital or a place

other than a hospital and that is the effect of
section 20BB(2) - I am sorry, detained in a

hospital only if he does not object to being -

Then, Your Honour, we go to, in effect,

section 20BC in respect of a finding that he is not

likely to be fit within 12 months.

Polyukhovich(4) 12 12/9/90

HER HONOUR:  What happens if no prima facie case is found.

We have missed that, I am sorry?

MR GRAY:  If no prima facie case is found, the charge is

dismissed and the person is released if he is in

custody. That is section 20BA(l).

HER HONOUR:	Thank you.
MR GRAY:	It is starting to equal the War Crimes Act itself

in its complications. Section 20BC where he is

found not likely to be fit within 12 months, then

the person may be detained in a hospital if he does

not object - he or she does not object or:

otherwise -

can -

be detained in a place other than a hospital,

including a prison.

And that period of time is a notional period of

time not exceeding the maximum period of

imprisonment that could have been imposed if the

person had been convicted of the offence.

There is also in section 20BC(5) of the Crimes

Act power to order release on conditions. I am

indebted to my friend: if he becomes fit within

the 12 month period that I referred to earlier,

even though he has been found unfit, then the

committal proceedings resume.

HER HONOUR:	Even though there has been ..... prima facie?
MR GRAY:	Even though there has been a finding of a prima

facie case. That is section 20BB(3). We say that

the effect of all of that is, indeed, to

significantly have the potential for altering the

plaintiff's position, and it is all triggered on a

finding of unfitness to plead.

Your Honour, it is really the fact that the

proceedings are in that position that we make this

application and it is really having regard now to

the whole history of the matter up to this point in

time. We say whatever be the test for a stay,

whether it be balance of convenience or whether,

indeed, it be an extraordinary circumstance that

justifies a stay, the history of the proceedings up

to this point in time justifies the application.

HER HONOUR:  Well, could you make the submission if it were

merely a question of the committal proceedings

being commenced?

Polyukhovich(4) 13 12/9/90

MR GRAY:  I think I would now, at this stage, due to the

history of this matter. It may have been more

difficult to make the submission, and this is

probably why it was not made at the early stage of

this, where this Court was to hear the matter in

September, the committal proceedings were to start

at the end of July. The committal was envisaged to

go for quite some time. It was always the hope of

the parties, I think, that this Court would hand

down its decision before anything too much had

happened.

HER HONOUR: Before the committal proceedings had completed?

MR GRAY:  Yes, before the committal proceedings had

completed.

HER HONOUR:  So that the status of your client would not, as

it were, be affected other than in terms of the

bail conditions as they existed?

MR GRAY: That is right. As I said, it might be much more

difficult to have made that submission earlier but

now, having regard to the history and the direction that the matter has now taken, I would say even so,

even without these present proceedings in the

supreme court, that it is appropriate for this

Court to stay. It certainly, in our submission,

does not really affect anything and certainly does

not put at prejudice our client by staying the

proceedings at this stage until this Court makes

its decision.

Your Honour will have seen from reading the material the medical reports, and it is quite clear

that the plaintiff's present condition is going to

subsist for some time. Your Honour will have seen

in the medical reports that he is certainly not

going to be fit to attend court until mid-October.

HER HONOUR:	And is the fitness issue on?
MR GRAY: Well, time has been set aside in relation to the

fitness issue on 24 October. But, Your Honour will
also see in the most recent medical report, which
is a handwritten report, in the second affidavit of

Mr Stokes and the second exhibit to that affidavit

that he, at this very point in time, is certainly

not fit to attend court and any attendance at court

will be deleterious to his health.

HER HONOUR:	I am sorry. that Mr James handed up, the second letter, I think, the hearing has been brought forward to	I read somewhere in the material
17 September 1990.
Polyukhovich(4)	14	12/9/90

MR GRAY:  That is what might be termed the preliminary

argument. We took out proceedings to seek to stay

the supreme court proceedings basically in relation

to the argument that I was putting to Your Honour.

HER HONOUR: Well now, why has all the expense been involved

of bringing this matter on before a determination

of that issue in the supreme court, if we have got

until 24 October?

MR GRAY:  Simply that it seems appropriate at this stage to

put before this Court - and this Court is seized of

the matter, has heard a substantial amount of the

argument. The aspect of stay was raised last week

by this Court - - -

HER HONOUR: "Raised by this Court" puts it a little highly.

In fact, it was not raised - the Court actually

said, "Well we won't go into it. You can make an

application, if you like, but we won't go into it

until you do make the application".	It did not
invite it.

MR GRAY:  No, I was not suggesting that, Your Honour. I

certainly was not suggesting that it was invited.

I am just saying that it was raised and we

certainly consider that it was appropriate that

this Court consider a stay. I mean, we are anxious

as quickly as possible to, if we possibly can, put

the plaintiff in a position where he is not facing

a legal process and not facing prospects of having

his rights altered or orders made against him and

it is as simple as that. We would ask this Court

to intervene at this stage, a matter which, as I

understand my friends, they are as anxious to have

resolved as we are.

HER HONOUR:  Yes, well I suppose it does resolve it, but it

might have been resolved otherwise and there

certainly must be very considerable expense in this

application being brought on when it might

otherwise have been resolved and, indeed, even if

ventilated which might have borne on the question. it were not resolved other issues might have been

MR GRAY:  I suppose in answer to that, Your Honour, all that

I say is that I do not think there is any

difference in expense.

HER HONOUR:  For example, it must be within the power of the

supreme court to say, "Well, this matter should

wait another two months, three months, for various

reasons". It must be within the power of the

supreme court to say that, must it not, or is that

disputed? Is it suggested that this matter must -

the reference having been made, the court has no

discretion but to deal with it?

Polyukhovich(4) 15 12/9/90

MR GRAY:  I think the court must deal with it but I assume

that the court could adjourn the proceedings over	if it saw cause to do so, but the other effect is
that if the proceedings do go ahead, then there is
still the prospect of the committal proceedings
proceeding. I am sorry. If I succeeded in the
supreme court in showing that this reference was
wrongly made, then we go back to the committal, and
we would say at this stage it is appropriate to stay those proceedings as well having regard to the
history of the matter.

HER HONOUR:  Well, I do not know that you could say that. I

mean, a time might come where you might be able to

say that, where you might be able to say, "Well, my

client's status will be affected by the completion

of the committal proceedings in circumstances where

there might be no offence for which he can be

committed for trial", but that position has not

come. I imagine that the committal proceedings

would take some months, would they not?

MR GRAY:	I imagine so, Your Honour, yes.
HER HONOUR:	And so far as the committals were concerned, assuming they could be held, that is to say that
your client was present, there is no irremediable
affect of his status by those continuing, is there?

MR GRAY: Well, if we are talking about the committal

proceedings themselves, possibly not, although we

are still in a situation where we have a person who

it is doubtful whether he can attend for quite some

time, those proceedings, the proceedings not being
able to, in effect, commence again for some time,

presumably into the new year, at a point where one

would hope this Court has made its decision. So,

there is, from our point of view, a positive

benefit at this stage having a stay as a balance of

convenience if that were the situation but it is a

worse situation than that because we are faced with

proceedings which are going to potentially

determine matters which, we say, should definitely

not be determined.

HER HONOUR: But, they are the fitness to plead?

MR GRAY: That is the fitness to plead proceedings.

HER HONOUR: Proceedings, yes.

MR GRAY:  Now, I just do not think, with respect, you can

look at it without looking at the overall picture

of the fitness to plead proceedings which are
sitting on top of the committal proceedings. But,

in relation to both it certainly, we would put quite strongly, is appropriate to stay at this

Polyukhovich(4) 16 12/9/90

stage all the proceedings. This Court will then

have determined the matter and will have pronounced

on the validity of the legislation and the

proceedings can then take their course. With

respect, it just seems sensible to come to

Your Honour and say in this situation and this

circumstance we should really be asking this Court

to stay all of the proceedings.

HER HONOUR:  Well, let us assume that your client were well

enough to attend committal proceedings commencing

tomorrow - make that assumption.

MR GRAY:	Yes.
HER HONOUR:	And, this Court had adjourned, as it has, the

constitutional issue and no date had been set, as I

understand it to be the case, for its relisting.

Why would you get a stay of the committal

proceedings? That must be the worst case that

could be envisaged for you, I imagine.

MR GRAY:	Or the best.
HER HONOUR:	Or the best. Well no, the worst case in terms

of arguing for a stay. It might be the best case

in other respects, but for a stay.

MR GRAY: Well, I cannot make those assumptions because it

is just not factually the case - - -

HER HONOUR:	Of course it is not factually the case.
MR GRAY:	- - - and it may well be that in that circumstance

our prospects of obtaining a stay are not nearly as

good as they ought to be.

HER HONOUR:  But I would have thought if they are not very

good in that situation, they must be even worse in

the present situation where there is no reason to

suppose that the committal proceedings would

commence before the end of October. Let us assume

that the fitness to plead issue went away, for

example, just went away and the health problems

went away. The committals would commence some time

in October, or might.

MR GRAY: In the new year, I suppose.

HER HONOUR:  Well that would be the earliest they could

commence, is it? October would be the earliest

they could commence.

MR GRAY:  My friend keeps saying the new year.

HER HONOUR: Well, the new year is the earliest they could

commence, all right. It does not matter whether

Polyukhovich(4) 17 12/9/90

that is or not but even if it were, even if they

could commence tomorrow, for example, where is the

risk of change in status, as it were, that would

justify the grant to stay?

MR GRAY:  The proceedings in the supreme court.

HER HONOUR:  Yes, all right. Now, I can understand that

they are in a separate category. What I am trying

to test is your broader submission that all the

proceedings, including the committal proceedings,

should be stayed.

MR GRAY:  Well~ I suppose in one sense I am embracing,

really, the fact that it may well be impracticable

for the committal proceedings to commence until the

new year. In that circumstance it just seems

sensible to make a stay in respect of all

proceedings. I mean, I appreciate the force of what Your Honour is saying to me but I also say

that you cannot strip it away just like that and

leave that as the one assumption for the purposes

of determining whether or not there should be a

stay because there are, in fact, the proceedings on

foot under section 20B of the Crimes Act and it is
the potential to change the status of the plaintiff

that those proceedings have that we are seeking

this Court to stop and to preserve his status as it

is at the present time and, again, I say it is

appropriate that we come to Your Honour and ask

Your Honour to at least do that, but I would ask

also for the broader stay of all proceedings at

this stage until this Court determines the matter.

I think what my friend puts to me is probably

right, Your Honour. Another assumption that
Your Honour is really making that I am not prepared

to make is that the preliminary point that I have

taken with respect to the supreme court proceedings

is, in fact, going to be successful. If it is

unsuccessful, then we are in the situation where we

would be today before Your Honour - - -

HER HONOUR:  I do not know about that. You might get leave

to appeal to your Full Court and so forth and so

on.

MR GRAY:  It is far more convenient, Your Honour, for

Your Honour to deal with the matter right here and

now rather than go through all of that. I mean, it

is the fact that this really is an available

opportunity for this Court to grant a stay having

regard to the prospective proceedings that are on

foot and that is really what we are seeking from

Your Honour.

HER HONOUR:  Yes.

Polyukhovich(4) 18 12/9/90

MR GRAY:  I mean, the one thing, I suppose, that is also

important as far as these stay of proceedings are

whether or not there is a substantial issue to be	concerned is that we say that this Court can judge
tried and that is something that has got to be weighed in the balance of granting a stay.

HER HONOUR:	Yes.
MR GRAY:	I am putting that neutrally but it is a matter

where this Court is in a different position to the

State supreme court. There are different

considerations regarding this Court granting a stay

to those that the State supreme court might have

regard to and there are considerations that this

Court will have regard to that the State supreme

court will not and that is why we say it really is

appropriate for Your Honour to act.

HER HONOUR:  I can see a real difference in the situation in

which this might have been agitated at the
conclusion of the proceedings last week, or the
week before, and their being the subject of a
separate application today, particularly when there

are proceedings on foot in the supreme court and

powers, one would assume, available to the supreme
court to control its own proceedings so as not to

bring any prejudice to a person in the position of

your client.

MR GRAY: But, all that I am saying is, Your Honour, that

there are the proceedings on foot in the supreme

court. This Court has got power to stay those

proceedings and will stay them, in our submission,

exercising the proper tests related to whether or

not a stay be granted.

HER HONOUR: Yes, but the tests for this Court are really

quite different from those that might be applied by

the supreme court.

MR GRAY:  In one way, with respect, precisely, but we are

asking this Court to exercise those tests because

we say we fall within them with respect to the

supreme court proceedings and that it is

appropriate for us to come to this Court to seek

that.

I can understand what Your Honour is saying with respect about last week and now but we would

really say that really the situation is not any

different, it is a matter of seeking the exercise

of this Court's jurisdiction in respect of this

aspect. Now, whether it was sought last week or

this week, it does not matter, it is still seeking
this Court to exercise its jurisdiction and, we

say, we fall within that where the Court would

Polyukhovich(4) 19 12/9/90

normally, we say, grant a stay and, indeed, I

suppose, I would add even further, assuming we were

not to succeed in the preliminary issues, if we had
not come to Your Honour, presumably we should not

be in any worse position in seeking a stay from

this Court simply because we seek to agitate those

preliminary issues.	I think I have put it the
wrong way round.

We are not asking Your Honour to exercise any

of those powers of the supreme court. We are

asking Your Honour to exercise your jurisdiction

with respect to the grant of a stay that would be

exercised where you have a person in a position

faced with these supreme court proceedings which

may determine matters affecting that person's

status and liberty and that is why it is
appropriate for Your Honour to - does Your Honour

want me to refer Your Honour - did Your Honour get

the list of cases that I forwarded?

HER HONOUR:	I do not believe so.
MR GRAY:	Could I just hand Your Honour the references?

Does Your Honour want me to develop any argument

with respect to the test that this Court applies in

relation to stay proceedings?

HER HONOUR:  Well I think not. I think that is not

necessary at this stage but it is a test - it is a
high standard particularly, I would have thought,

in relation to the criminal processes but I suppose

what you say to that is, "Well, this is an

extraordinary situation that has come about".

MR GRAY:  And it is the extraordinary nature that we rely

upon. I would, of course, say, Your Honour, that

it is a real question as to whether or not this is

an exercise of this Court's inherent jurisdiction

or whether it is an exercise of a jurisdiction to

grant interlocutory injunctions and there are

slightly different tests that have been articulated

from time to time; whether it really is only a

balance of convenience argument or whether, like in

special leave applications, the exercise is sought

of the inherent jurisdiction to stay which is
regarded as an extraordinary jurisdiction. What we
would say is that we could rely on the first but in

any event we fall within the extraordinary

jurisdiction.

HER HONOUR:  Have you got authorities indicating that it is

the balance of convenience test in the grant of a

stay of proceedings?

MR GRAY:  Our application, Your Honour, is for a stay and

for, in effect, a restraining order. The stay, it

Polyukhovich(4) 20 12/9/90

seems, might be necessary with respect to the

proceedings generally but we are also seeking an

order restraining, in effect, the prosecution

authorities from proceeding with the matter.

HER HONOUR: That is not how things are done, is it?

MR GRAY:  I think it is, Your Honour.

HER HONOUR: Is it? That I would restrain the prosecuting

authorities - - -?

MR GRAY:  Well, the Colonial Sugar Refining case which

Your Honour sees there seems to suggest quite

strongly that that be the case.

HER HONOUR:  Were there proceedings on foot that were

stayed? I mean, if you get a stay of the

proceedings, questions of the restraint of

prosecuting authorities are irrelevant.

MR GRAY:  Indeed, I think that is right, but whether it is

appropriate to restrain the prosecuting authorities

or to stay - - -

HER HONOUR:	And, even if you put it the other way, if what you are talking about is restraint in the course of
existing proceedings, you are really talking about
the same thing anyway and the test must be the
same, whether you talk of restraint or whether you
talk of stay.
MR GRAY:	Would Your Honour just pardon me one moment.
MR JAMES:	I have been invited by my friend to deal with one

matter. We would concede that in the original

jurisdiction of this Court, pursuant to

sections 30, 31 and 32 of the Judiciary Act, there

does lie power to make some appropriate order

incidental to the testing of the constitutional

validity of legislation such as to suspend until

the determination of the validity of that

legislation proceedings which might, or which

highly probably will, cause adverse consequences to

a litigant whilst the validity of that legislation

is under examination by the court, but having

conceded jurisdiction, it is a very different

thing, we say, when the Court comes to the question

of when that jurisdiction will be exercised. I

wanted to make perfectly clear that, indeed, on one

view of it the court to which Mr Polyukhovich could

have been committed is this Court and, in essence,

the South Australian Supreme Court is a substitute

by virtue of later legislation for this Court.

HER HONOUR:  We go back, Mr Gray, to the question whether it

is - if you have authorities to suggest that it is

Polyukhovich(4) 21 12/9/90

the balance of convenience that I should look to,

then I would be pleased to hear them because I

would not presently be minded to think that was the

way on which the matter should be disposed of.

MR GRAY: Perhaps if I hand to Your Honour the Colonial

Sugar Refining case, Your Honour will see that that

related to a royal commission and the validity of a

royal commission, and the passage that I refer

Your Honour to is at page 192 at the bottom of the

page.

HER HONOUR:  But that is very different from court

proceedings which have been instituted, is it not?

MR GRAY:  It is a question of a summons being issued,

Your Honour, and I would have thought in these

circumstances royal commissions equate to courts.

HER HONOUR:  Had the summons been requested? Had an

application been made for the summons to issue at

that stage?

MR GRAY:  It had been, and a summons had been issued, I

think.

HER HONOUR:	I see.
MR GRAY:	To the manager of a sugar company to attend and

give evidence before the royal commission.

Your Honour, the general principles related to

interlocutory injunctions. Whilst there are, I

think, three cases, McFarlane, the Course Grain

Pool case, Tableland Peanuts and Richardson,

related to interlocutory injunctions on my list of

authorities, I just hand Your Honour Australian
Course Grain Pool PtyLtd v Barley Marketing Board,
and perhaps also if I hand to Your Honour
Castlemalne Tooheys which my friend referred to,

161 CLR 986, and that case, without referring to it

in any detail, applies a test of balance of

convenience although there is a passage in the case

indicating that it is, in effect, rare to do it in

criminal prosecutions.

HER HONOUR: Yes. These cases do not really meet the point

I am dealing with, and that is the test to be

applied where you are staying proceedings which

have been properly instituted, or at least that is

the assumption one is making, in another court,

that is, where the effect of the order is to

curtail the power of another court to exercise

jurisdiction which has been regularly invoked. And

I am just suggesting that the balance of

convenience does not really seem an apt

consideration in that circumstance.

Polyukhovich(4) 22 12/9/90

MR GRAY:  I cannot point Your Honour to a case that I have

been able to find which deals precisely with what

Your Honour is putting to me.	I say there is no
reason why it should not.	I then go into the

special leave type inherent jurisdiction which, of
course, is where the test is more than balance of

convenience; but, of course, where courts have

certainly been restrained.

Perhaps if I also hand to Your Honour

Grassby v The Queen which is also on my list, and

Tait v The Queen, of course, is another and that is

on the list. I can hand to Your Honour

Tait v The Queen.

What I might describe as the classic test for the special leave type matters is Jennings

Construction Ltd v Burgundy Royale which is also on

the list, and I will perhaps inundate Your Honour

with another photocopy.

HER HONOUR:  Thank you. The point I am making is these

first cases which ask for a stay of execution in a

special leave context seem to involve something

less drastic as it were even than the curtailing of

the exercise of the jurisdiction of a court that

has been regularly invoked, so that prima facie one

would be looking at something like, although the

words are not apt, that which was said in Grassby.

So you are looking to preserve the subject-matter

or the integrity of the litigation. In this case I

would think you would be looking to ensure that

there was no irreparable prejudice to the accused,

rather than merely a balance of convenience.

MR GRAY:  But, of course, and I do not want to pitch my

argument too low, I am saying that this is - - -

HER HONOUR:	That you satisfy that test?
MR GRAY:	- - - that we satisfy that test, that this is such

an extraordinary case. One of the difficulties of not finding such a case, I think, is because there

are not such extraordinary cases, and this is
different.	We are now out of the realm of the pure

committal into the realm of a procedure which is

going to, we say, ultimately has the potential to

affect our client's status. And that is the

importance of asking for this Court to entertain

the matter.

Another reason, of course, why I suppose it is

not regularly invoked is that it is not all that

usual for criminal matters to be the subject of constitutional challenge, which this matter is.

And perhaps that is why we are really unable to

find anything where it has been considered before.

Polyukhovich(4) 23 12/9/90

Again it is also a matter that we would say also adds to the extraordinary nature of this, and that

is why we are really asking Your Honour to exercise

the jurisdiction.

Your Honour, I cannot take the matter any

further than what I have put to you.

HER HONOUR: There is one matter that troubles me, and it is purely peripheral. The affidavits you tell me have

been filed - now, as I understand the position

anybody can search the registry files. Now, the

material in these affidavits ought not to be made

public, ought they? I mean, they have a very

serious potential to interfere with the course of

any trial that might be had.

MR GRAY:  That is so, Your Honour. I understand my friend

has filed his - I suppose there are some matters.

We just ask that the matters -

HER HONOUR: Well, I was thinking of, I think it is the

second affidavit of Mr Reid.

MR JAMES: 

And the affidavit of Mr Hughes.

HER HONOUR: 

Yes.

MR JAMES: 

Those documents have only been filed in court

pursuant to the leave that Your Honour has given me
implicitly. They have not been filed with the

registry.

HER HONOUR: 

But now, I think some of the documents attached

to the affidavit of Mr Hughes are also on some of

the affidavit material that you have filed.

MR GRAY:  The medical material, yes. We have been anxious

that that be kept private at this stage.

HER HONOUR: Well, I think you should - I think I will

probably then adjourn until 2 o'clock. I think

over the luncheon adjournment you should make a

list of the documents that should be the subject of

an order as to non-publication.

MR JAMES:  We would adopt, of course, the traditional pose

of the Director of Public Prosecutions that we

would neither support nor oppose any order.

HER HONOUR: Well, I do not ask you to. But you might,

perhaps however - I do not necessarily find that a

terribly helpful attitude. We are, after all, in

this instance talking about matter that goes to the

question of the fair trial of a criminal

proceeding. Now, I understand that there are

problems about attitudes taken to documents, but at

Polyukhovich(4) 12/9/90

the very least, I think you might be able to

identify with some particularity the documents that

could bear on that issue.	Now, whether you oppose
or do not oppose an order does not matter.	You
might at least co-operate to that extent.

MR JAMES:	We certainly will be happy to, Your Honour.
HER HONOUR:	In the meantime, no order having been made, I

will make an order with effect until 2 o'clock in

respect of all the affidavit material, and the

order can then be varied at 2 o'clock to refer only

to that material which bears upon what might happen

in the subsequent trial.

MR GRAY:	Thank you, Your Honour.
HER HONOUR:	We will adjourn until 2 o'clock.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

MR JAMES:	Your Honour, I did wish to say, in relation to the material to which Your Honour drew attention
prior to the luncheon adjournment, that none of that material has been opened, nor would the Director seek the disclosure of any of that
material at any time prior to any committal
proceedings or a trial or a prima facie case.
HER HONOUR:	Yes, now the problem is that anybody can search the court registry and get those documents.
MR JAMES:	So consequently, on what I have said, and not only that but the affidavits have been filed in
court - they have not been filed in the court
registry - it follows from what I have said that we
would not seek that any of that material be
available publicly, and indeed we would accept that
were it be so available it could well be
prejudicial to the proper conduct of proceedings.

HER HONOUR: Yes, well that is your affidavits, all of

yours?

MR JAMES:  No. The affidavit of Robert William Reid, of

11 September, in our view could stand except for

the exhibit thereto. All that does, in essence, is

set out history except at paragraph 24, the last

sentence thereon, page 7.

Polyukhovich(4) 25 12/9/90

MR GRAY: Well, Your Honour might look at paragraph 24 and

the last sentence, which we would object to.

MR JAMES:	I should indicate that what is said there has been said publicly already, and has been reported.
HER HONOUR:	Yes. Well anyway, I will strike out the last

sentence. I think that might be - I do not think

anything turns on it in these proceedings.

MR JAMES:	Not in these proceedings, no.
HER HONOUR:	And it does not seem to be strictly admissible

either.

MR JAMES:  I am not seeking to press it. We would take the

view that the whole of the affidavit of -

HER HONOUR:	I am sorry, which exhibit was it?
MR JAMES:	The exhibit is the referral papers with the

annexed medical material. Exhibit RWRl is a copy

of the referral notice with annexed copies of the information and medical material. It is the fact of the referral which is already in evidence. The contents of it need not trouble Your Honour on this

application.

HER HONOUR:  No, well I do not need to deal with t'he

referral. That would seem to have no problem. It

is the medical evidence attached thereto.

MR JAMES:  The affidavit of David Hughes, that of

12 September 1990 - the affidavit itself refers to

matters as to the whole of the affidavit, refers to

matters that it would be intended to tender in

evidence and to open: and not only that, but the

annexures thereto raise the same matter. It would

be intended to tender those also in evidence.

The affidavit of Robert William Reid of

12 September 1990 - paragraph 6 and onwards refers

to the condition of the witnesses and to the

accounts they can give, through to paragraph 20,

but paragraph 21 and onwards would seem to be

material of this present application and not seem

to create - - -

HER HONOUR:	21 might change, I suppose.
MR JAMES:	It may change in the sense that there may be

additional - well, it could change, yes. As to the

affidavits filed on behalf of the defendant - the

affidavit of 11 September 1990, the short affidavit

which is basically an affidavit which refers to the

referral papers - that is in the same position as

Polyukhovich(4) 26 12/9/90

the last four lines of the affidavit of Robert

William Reid, the same document.

HER HONOUR:	Yes.
MR JAMES:	As to the longer affidavit, that of

11 September 1990 - paragraph 8, the second

sentence -

HER HONOUR:	Does that begin, "On the 29th day of July"?
MR JAMES:	It does. The only complication, Your Honour, is

that I will have to refer to the first six words of

that, but only the first six words.

HER HONOUR: Well, the first sentence is - - -

MR JAMES:  The first sentence we see no problem with, but - - -

HER HONOUR: That is fine.

MR JAMES:  - - - but the first six words of the second

sentence is something that I might need to refer to

in my argument.

HER HONOUR:	Yes, well that is - - -
MR JAMES:	Your Honour, we should perhaps before passing

from the affidavits indicate that bearing in mind

the nature of these proceedings, whilst we would

not take formal objection with certain

argumentative statements contained in that

affidavit, we would ask Your Honour to note that

there is an issue as to certain of the statements.

In particular, on page 5, paragraphs 13, the commencement of the second sentence on that page,

"Having made that referral", a question will arise

in issue as to that. It may not concern this Court

in the light of what has passed between Your Honour and my learned friend, but none the less we do take issue with that as being a material matter. And

bottom of the page, "Any adverse finding", through	similarly at paragraph 17, the four lines at the
to the top of page 7, "are constitutionally invalid", and at paragraph 18 - - -

HER HONOUR: That is a matter you take issue with?

MR JAMES:  Yes •

HER HONOUR: That is a matter for argument, is it not?

MR JAMES: Certainly. And similarly at paragraph 18, where

there is the assertion of unfairness to the

plaintiff and "contrariness to the interests of the

administration of justice". It is really a matter

Polyukhovich(4) 27 12/9/90

for the Act rather than - lastly, of course,
paragraph 19, the last three lines. They are the

portions of the affidavits which we would submit might be those portions Your Honour would direct

should be retained "confidential"; and those

matters with which we take particular issue in the

affidavits.

HER HONOUR:  Yes.

MR GRAY:  Your Honour, I think that identifies them. I do

not propose to go through their affidavit about the

matters that we might be in minor disagreement

with.- There are obviously issues, as Your Honour

can see, of minor matters that we are at odds on, but I am only concerned that Your Honour have the substance of the matters before you.

HER HONOUR:  Thank you. Well, I think it is sufficient if I

order that there not be published or disclosed

pending any trial of the matter the affidavit of

David Hughes sworn 12 September 1990; paragraphs 6

to 21 inclusive of the affidavit of

Robert William Reid sworn 12 September 1990; the

medical reports attached to the referral of the

I should also - and I think it is probably

clear enough that we take issue that at the present

time under the old 20B regime prior to the 1990

amendments that that entitled a finding of fitness

to plead.

HER HONOUR:  Does anything turn on it?

MR GRAY:  No. I just want to make the point.

HER HONOUR:	I suppose all that turns on it is if it were to transpire that that was the procedure applicable to
your client and it was sought to invoke it, you
would be back next week.

MR GRAY:  I suppose that is right. I do not think I can add

very much more to that that would not be repeating

what I said before. There is one minor point that

I will just deal with and that is my friend spent some time referring to a passage in Ward and Kelly

concerning the personal presence of an accused

person or a defendant after the laying of an

information and read to Your Honour some bits of

that. The particular paragraph is at page 7302 of

that volume. Those comments are made in the

context not of indictable offences but of minor

Polyukhovich(4) 63 12/9/90

indictable offences and there is a - I do not need

to trouble Your Honour with it, I do not think, but there is a distinction in South Australia between -

a similar distinction exists in New South Wales -

between minor indictable offences and indictable

offences and the sections that were read were with

reference to the special provisions related to

minor indictable offences.

HER HONOUR:	And this is not a minor indictable offence?
MR GRAY:	This is by no means a minor indictable offence,

Your Honour. And of course I have already put the

arguments that we say he must be present at his

committal and I do not think I need to rehash

those. Those are the only matters - - -

HER HONOUR:  What do you say to Mr James' submission that

these preliminary issues will have to be determined

at some stage and they might as well be determined

now?

MR GRAY:	As far as the preliminary issues are concerned?
HER HONOUR:	Yes, well when I say they will have to be determined, if validity is established, the
preliminary matters that you have raised in the
Supreme Court of South Australia will have to be
determined; they might as well be determined sooner
rather than later. They do not seem to bear - - -

MR GRAY: Actually I am not particularly adverse to doing

that. I am anxious to avoid in any way putting my

client at risk of a change in status while - - -

HER HONOUR:	You want to avoid the finding.
MR GRAY:	I want to avoid a finding of fitness to plead and

anything that flows from that.

HER HONOUR:  Then are not the proceedings a little

premature?

MR GRAY:  No, Your Honour, I say not. I say that despite

all of these matters that are going on, the fact

that there are these preliminary objections being

taken to what is happening, the matter that we are

asking to stop is the referral to the supreme

court, full stop. And it does not matter that

there might be interesting questions relating to

all of that, it is the fact that that proceeding is

on foot and that proceeding has the capability of

changing the status.

HER HONOUR:  Yes. Well, the question whether or not there

has been a reference, as it were, a valid reference

will have to be determined, assuming constitutional

Polyukhovich(4) 64 12/9/90

validity. The other questions are questions really

in the nature of answers that might be sought on a

directions hearing which you say is really for

Mr James to seek those directions, not for you.

MR GRAY:	I think that is right, Your Honour.
HER HONOUR:	You say assume there is a valid reference, then

the other questions - - -

MR GRAY:  Assume there is a valid reference, then in effect

we are back before Your Honour, if Your Honour has

not determined this matter - - -

HER HONOUR:  ·No, no. Mr James says if there is a valid

reference there are a whole lot of questions

arising under the regime which - perhaps not a

whole lot, there are one or two at least - as to

which some answers should be provided by way of

directions, as it were, at an early stage.

MR GRAY: Well, yes, I cannot see why that is not

accommodated ultimately when the matter comes on.

HER HONOUR: Because, he says - - -

MR GRAY: If it is to come on. Because he says that will

further delay it, but I would have imagined that the degree of delay in this particular matter is

inconsequential. We are talking here about a

timetable that was to have these questions

determined on 17 September - actually on the 25th,

and a fitness to plead hearing in terms of the

legislation a month later. I mean I think the

degree of delay that we are talking about is

infinitesimal is the spectrum of this. And if it

is so, it is important, we would say, to ultimately

determine this question of how quickly one has to

proceed to the prima facie case.

HER HONOUR:	That is one of the points that Mr James says ought to be determined now because if the
legislation is valid, it will have to be determined
and it will be of critical importance in
determining what arrangements are made for witnesses, et cetera.
MR GRAY:	This is all within his ability to arrange it and

the court's availability. They are not matters
related to what I say is the real gravamen of this,

which is the fact that the proceedings are on foot

and we would seek that they be stayed. But the

programming of it after this Court has delivered

its decision and assuming it finds the legislation

valid is a matter which I envisage there would be

very little delay in actual practical terms in

Polyukhovich(4) 65 12/9/90

having these matters determined. As I said, I am

not putting- - -

HER HONOUR:	It is a question of lead time.
MR GRAY:	Yes, but if you take - ultimately the real issue

relates to the prima facie case. If it is assumed

as time goes on that there will be a successful

fitness to plead application and assume that such

an order is to be made, the arrangements in

relation to the bringing of witnesses for the

committal can be keyed in to when that hearing

takes place. I mean, it is the prosecution at the

present time who need to split the fitness to plead

issue from the prima facie case, but there is no

reason why it should not go the other way and have

the fitness to plead hearing programmed to start as

a preliminary to a prima facie case. But as I

said, I am not taking great issue with the fact

that we might argue those preliminary points and I

am not really trying to avoid having to do that.

But I am saying that I think in the nature of the

proceedings as a whole, the appropriate order at

this stage would be to stay those proceedings.

HER HONOUR:	Mr James, you seem to want to-- - -
MR JAMES:	There are only two matters to which I draw Your Honour's attention. What appears at page 29
of the transcript before Mr Kelly of 27 August 1990 being exhibit DS8 referred to in the affidavit of
Mr Stokes of the 11th day of September, pointing
out that we were not being guileful or deceitful,
we were plainly simply seeking the man be kept where he is in the hospital where the doctors want
to keep him. At that passage and onwards we
explained the purpose of the application for the
hospital order which was to maintain the status
quo. It was not for any additional detention. At page 27 of the transcript before His Honour
Mr Justice Duggan where he sets out- - -

HER HONOUR:	Do I have that?
MR JAMES:	Yes, Your Honour does.	That is part also of the

- that is exhibit DSl0 to the affidavit of David

Francis Stokes.

HER HONOUR:	Then I have not seen it.
MR JAMES:	I had assumed that Your Honour had both of these

transcripts.

HER HONOUR:  Or have I? The documents I have got came by

fax. Could I have a look at it.	I may have seen
it.

Polyukhovich(4) 66 12/9/90

MR JAMES:	I had assumed that Your Honour had in fact read the transcripts in a lot of things I had said.
HER HONOUR:	They seemed to coincide - yes, I am sorry, r

have got that.

MR JAMES:  At page 27 of the transcript before

Mr Justice Duggan Your Honour will see the lead

time and in the South Australian Supreme Court the

lead time for getting a fitness to plead and even

getting an opportunity to argue the preliminary

questions in fact was almost by coincidence we were

able to obtain the dates so early as we did. That

is perhaps all I should say except this, that it

was my friend's application challenging the

jurisdiction, as it were, of the South Australian

Supreme Court that came forward and in that

application my friend raised these various other

points, such as what was the nature of the court to

try and so forth, and it was on that that

Mr Justice Duggan sought assistance on his

preliminary point and any other preliminary points

which were likely to come up. Indeed, a

preliminary point was even raised as to the

question of whether or not the supreme court had

any power to consider any bail order at all, and

rather than there be further argument on a

preliminary point, we took the view that we would

go without bail as it would delay the matter still

further.

They are the only matters, Your Honour, except

for this, that if Your Honour were minded to make an order, I think we would be in a position where we would seek an intimation of at least the general

fate of the application so that we could avoid

being placed in any position of taking any step or

otherwise that might infringe the intent of Your

Honour's order.

HER HONOUR:  That is very cryptic. I am not sure whether I

understand it, but perhaps before you do do that,

perhaps I should say that I had intended to

indicate that I would be reserving my decision. I

would be hoping to give it by Monday which is the

date on which the matter is listed in the South

Australian Supreme Court. The decision thus far - the decision that I would be minded to make thus

far would not interfere with the determination by

the South Australian Supreme Court of the question

whether or not there has been any reference under

20B, nor would it preclude any determination of

what I will call the directions issues, but it will

of course be a matter for the South Australian

Supreme Court to determine whether, in the event

that a stay were granted of the fitness to plead

issue as such, whether or not those matters should

Polyukhovich(4) 67 12/9/90

be determined. That is to say it would be a matter

for the South Australian Supreme Court as to what

should happen in relation to directions aspects if

a stay were granted. Now, having said that, there

may still be other matters you wish to raise.

MR JAMES: That assists me considerably, if Your Honour

pleases.

HER HONOUR:	You are clear about that, Mr Gray?
MR GRAY:	Yes, Your Honour.
HER HONOUR:	I· suppose one should at this stage certify for

counsel because it seems to be a matter that gets

lost.

MR JAMES:  And senior counsel, if Your Honour pleases.

HER HONOUR:  Yes, that is why I was proposing to certify for both counsel for both sides. I presume costs are

not an issue in this case, that nobody seeks costs.

MR GRAY:	No, they are not, Your Honour.
MR JAMES:	The Commonwealth is meeting the costs of both

sides.

HER HONOUR:  That might explain why this matter came here

before the other issues were determined in the

South Australian Supreme Court. But otherwise I

will simply adjourn and the Registrar will notify

the parties if the decision is not available on

Monday.

MR JAMES:	May it please the Court.
MR GRAY:	Thank you, Your Honour.
AT 4.15 PM THE MATTER WAS ADJOURNED SINE DIE

Polyukhovich(4) 68 12/9/90