Pottinger v The Queen

[1994] HCATrans 395

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No BS of 1994

B e t w e e n -

JAMIE ALLAN POTTINGER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

McHUGH J

Pottinger 1 30/6/94

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 30 JUNE 1994, AT 10.04 AM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC: If the Court pleases, I appear with

MS K. McGINNES for the applicant. (instructed by

the Legal Aid Office (Queensland))

MR B.J. BUTLER:  May it please the Court, I appear with my

learned friend, MR M.C. CHOWDHURY, for the

respondent. (instructed by D. Field, Solicitor to

the Director of Prosecutions (Queensland))

BRENNAN J:	Mr Fleming.
MR FLEMING:	If the Court pleases, this matter arises out of

an application for an extension of time within

which to appeal. At that point in time there was

no record of the summing up.

DAWSON J:  Do you need an extension from this Court as well?

MR FLEMING:  Yes, Your Honour. There was no record of the

Despite that, the matter went before the court and the learned Court of Appeal said as

summing up of the learned trial judge to the jury. the matter.

follows - one learned judge said:

The trial Judge said quite rightly that he was

able to deal with any possible prejudice -

on the matters that might arise on appeal -

during the course of the trial and he did so. Another of the learned trial judges said that it

was unfortunate that:

the appellate process -

was being -

put in train when nothing more is known than

that for reasons unstated counsel thinks there

is an arguable ground.

DAWSON J: But the two matters you were complaining about

were identification and pre-trial publicity, were

they not?

MR FLEMING: Yes, Your Honour.

DAWSON J: And you are not complaining about the judges'

direction in relation to either of those matters,

are you?

MR FLEMING:  Your Honour, the judges' directions have never

been available.

Pottinger 30/6/94

DAWSON J:  No, but you were there - someone was there. Was

the complaint about the direction or about the fact

of the publicity that no direction could overcome

and the paucity of the identification evidence?

MR FLEMING:  Your Honour, our difficulty is that that matter

was never addressed before the Court of Appeal.

DAWSON J: That was the choice of - was it you before the

Court of Appeal?

MR FLEMING:  No, it was not.

DAWSON J: Whoever it was, that was the choice of the

applicant's counsel before the Court of Appeal.

MR FLEMING:  Your Honour, there was no affidavit of the

merits. That was the difficulty.

BRENNAN J:  Why not?

MR FLEMING: Because, Your Honour, the summing up had not

been available at that time and nobody had turned

their mind - - -

DAWSON J: But you were not complaining about the summing

up.

MR FLEMING: With respect, Your Honour, that was one of the

issues that would have to have been looked at in

respect of the prejudice from the publication.

DAWSON J: But I understood the submission to be that no

direction could overcome the prejudice arising from

the publication of the material.

MR FLEMING:  No, with respect, Your Honour. It would depend

upon an examination of the summing up, and that

examination - - -

DAWSON J: Was the contention that an adequate summing up

would remove the prejudice from the publicity?

MR FLEMING:  Your Honour, it may be. It may be but, with

respect, we say that nothing could be done until

somebody had had an opportunity to properly assess
the summing up at the trial, and the summing up was

never available before it went before the Court of

Appeal.

BRENNAN J: But the time for assessing the summing up is at

the trial. What does counsel do?

MR FLEMING:  Your Honour, we acknowledge the difficulty in

not assessing the summing up and not asking for

directions in relation to that but we would submit

that that is not fatal under all circumstances.

Pottinger 3 30/6/94

BRENNAN J:  Mr Fleming, this seems to suggest that the duty

of counsel can be, as it were, shelved and left to

some later time to consider. I mean, counsel is

there to represent an accused person and if the

submission is made that the summing up is

defective, that is the time to make it. If it is

not made then counsel or those instructing him are

in a position to file an affidavit.

MR FLEMING:  Yes.

BRENNAN J: Well now, none of that is done.

MR FLEMING:  No, none of it was done, Your Honour, and for

whatever reason, the Court of Appeal in fact

embarked upon a hearing on the merits and they had

before them the recollection of counsel only. ttey

did not have before them the summing up. It would

be our submission, in fact - may I go back in time

and look at some more of the facts. The prisoner,

in fact, prepared his own notice of appeal because

of some confusion amongst the legal practitioners.

It was within time. He attempted to file it but it

was, in fact, delivered back to him because it was

not in an acceptable form. If that had happened,

then the matter would have been on foot in the

ordinary course of events. The record would have

been prepared; the summing up would have been

looked at; and, indeed - and I know this is not a

desirable practice either but counsel could have

reflected upon the summing up in due course and

amended any notice of appeal that was

necessary.None of that was done. As a result of

the confusion, the notice of appeal was put in

eight days late, hence the need for an extension of

time within which to appeal.

Now, under those circumstances, it came before

the court still without the summing up available.

Nothing was done in relation to that so the

prisoner found himself in a position where his own
attempt to appeal was thwarted.	When it came

before the Court of Appeal there was no reference to the merits of the case at all. The merits had

to come from recollection of people who were

present at the trial. We would submit that under

those circumstances, to avoid the difficulty of an

unfair process, there ought to have been an

adjournment.

No adjournment was asked for and when one

reads the transcript, it was omitted in the heat of

the moment. There was some consternation when this

issue arose before the Court of Appeal. No

adjournment was asked for; the Court of Appeal did

not give an adjournment of its own motion and, at

the end of the day they considered that there were

Pottinger 4 30/6/94

no merits in the case, even though there was no

material before them whatsoever in respect of that.

We would submit, under those circumstances, that

process has miscarried and it ought to be reviewed.

Your Honours, we submit that for the reasons

that are then set out in our outline, the specific

law. That is the simple proposition that we want

to advance.

BRENNAN J:  I do not find it very simple. What is the

proposition? What is the proposition of law that

you contend for?

MR FLEMING: That to avoid unfairness in a criminal process

there ought to have been an adjournment.

BRENNAN J: They were not asked for.

MR FLEMING:  Not asked for, Your Honour, no. It was not

asked for but it ought to have been obvious under

those circumstances that the adjournment ought to

have been granted. Indeed, the court itself ought

to have realized that because it then embarked upon

a hearing on the merits with no material whatsoever

before it and dismissed it on the merits.

DAWSON J: It had the evidence. All it did not have was the

summing up.

MR FLEMING: With respect, Your Honour, I am not sure that

it did have the evidence. It seemed to have the

judges' sentencing comments and it seemed to - - -

DAWSON J: There was a summary of the evidence.

MR FLEMING:  Yes, it was a summary of the evidence. That is

all it had in the judges' sentencing comments.

DAWSON J: If my recollection is correct, the Crown had a

transcript of the evidence.

MR FLEMING:  There was reference by the Crown to various

parts of the evidence in their outline of argument.

DAWSON J: Yes. Well, if it had it, I do not see why the

applicant could not if he had been properly

represented and had it as well.

MR FLEMING:  I suppose that is the difficulty, Your Honour.

It is the adequacy of the representation and the

way in which then that ought to have been handled

by the Court of Appeal, and this person finds

himself now in a position where, even though he was

in time himself when he attempted to file the

notice of appeal, when the legal profession became

involved he did not have the required material

Pottinger 30/6/94

before the court; the court itself did not have the

required material, and then the court itself

embarked upon a hearing of the merits without

looking at one of the most critical areas, the

summing up.

DAWSON J: And you are now in the position to deal with the

merits or would be, would you not?

MR FLEMING:  Today?

DAWSON J: Yes.

MR FLEMING:  I am not in a position today to deal with the

merits.

DAWSON J:	The summing up is available now, is it?
MR FLEMING:	I presume so.

DAWSON J:  Yes. And you do not put any argument on the

merits?

MR FLEMING:  No, not before this Court today on a special

leave application because it is the simple point of

whether or not it ought to have been considered by

that court.

BRENNAN J:  I still do not understand the simple point. If

the point is that the court has been guilty of some

failure to make an order which ought to have been

made, one would think that the first step is to

show that the court was asked to make it.	Now, you
are not advancing that step.	You do not say that

the court was asked to make any order for

adjournment?

MR FLEMING:  No, it was not, Your Honour. I cannot advance

that.

BRENNAN J:  But yet your complaint is that the court did not

adjourn.

MR FLEMING:	Yes.
BRENNAN J:	You do not allege that the applicant is entitled

to special leave here on the ground that the

processes of justice have so miscarried as the

result of incompetence of his representation?

MR FLEMING:  Your Honour, if I must advance that I will

advance that.

BRENNAN J:  It is a matter entirely in the hands of counsel

but we are not here, as it were, with some roving

commission to discover what a special leave point

is and to advance it.

Pottinger	6	30/6/94
MR FLEMING:	No, Your Honour.	The special leave point that

we advance is the Jago and the Dietrich point and

that is an inherent power in the Court to prevent
an abuse of the process; in this case, an unfair

hearing in a criminal proceeding.

. BRENNAN J: But where is the abuse?

MR FLEMING: In failing to give the adjournment.

BRENNAN J: Which was not asked for. We are going round in

circles, Mr Fleming.

MR FLEMING:  Yes, I understand the difficulty with that,

Your Honour. It was not asked for because counsel

did not think of it, did not do it at the time.

They are our submissions, if Your Honour pleases.

BRENNAN J:  Mr Fleming, if special leave were granted here,

what would your argument be?

MR FLEMING:  I am sorry?

BRENNAN J: _If special leave were granted to appeal to this

Court from the judgment and order of the Court of

Criminal Appeal, what would be the formulation of your argument which would justify this Court in allowing the appeal?

MR FLEMING:  The Dietrich issue that I have said,

Your Honour.

BRENNAN J: That is a term which does not really convey a

great deal.

MR FLEMING:	On the basis that counsel did not - - -
BRENNAN J:	No, the proposition has to be, "The Court of

Criminal Appeal was in error in that" - what did it

not do?

MR FLEMING:

It failed to give an adjournment in

circumstances where, even though it was not asked

for, it was apparent that there would be a

miscarriage of justice for this particular

applicant.

BRENNAN J: That is the basis you want to put your argument

on?

MR FLEMING:  Yes, Your Honour, and the particular of that,

if it is necessary, is that they embarked upon a

hearing on the merits when no material was before

the court in respect of the merits .

Pottinger 7 30/6/94

BRENNAN J: 

You cannot say that, can you, in the light of

the answer you gave to Justice Dawson, that there
was the evidence in the trial before the court?

MR FLEMING: 

But the one issue that was not before the

court, Your Honour, was the summing up which, we

would submit, is perhaps the most critical.

McHUGH J: But I do not understand what the summing up has

to do with it. The ground of appeal that I assume

you are relying on basically was said to be that

the judge erred in refusing to discharge the jury

because of the prejudicial material.

MR FLEMING:  Yes.

McHUGH J: Well, what has the summing up got to do with

that?

MR FLEMING:  Your Honour, the summing up, when it became

available, may well have given rise to further

grounds of appeal upon proper reflection. For

example, there might have been an alternative to

that particular ground if counsel had properly

looked at it and that is that he did not deal

properly with that question to the jury.

McHUGH J: Speaking for myself, the sooner the idea is put

to death that counsel can look at the summing up

and study it and then start taking their points,

the better. I agree with Justice Brennan: counsel

at the trial should identify the points and give

the judge the assistance, either ask for a passage

to be withdrawn or a direction to be given, and if

it is not done then counsel fails in his duty to

the client.

MR FLEMING:  Yes, Your Honour. We accept the weight of

authority in respect of that but, as I understand

the authority, it is not always fatal.

McHUGH J:  Of course it is not and, obviously, there are

cases where, notwithstanding the failure of counsel

to take a point or even when counsel expressly

concede a point as in Pemble, a court will

nevertheless interfere with the - - -

DAWSON J: But your point is not that there was something

wrong, it is just that if you looked at it you

might have found that there was something wrong.

MR FLEMING:  Yes, that opportunity was never extended.

DAWSON J: Yes, but someone was there at the trial listening

to it.

Pottinger 30/6/94

MR FLEMING:  Yes, Your Honour. We can take the matter no

further, if the Court pleases.

BRENNAN J:  We need not trouble you, Mr Butler.

No question of principle appears which

justifies the grant of special leave in this case

and, for that reason, the application for

extension of time is refused.

AT 10.21 AM THE MATTER WAS ADJOURNED SINE DIE

Pottinger 9 30/6/94