Quai Hoi v Det. Snr Const Larkman

[1997] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M12 of 1997

B e t w e e n -

CECIL PHILIP QUAI HOI

Applicant

and

DETECTIVE SENIOR CONSTABLE ROBYN J. LARKMAN

First Respondent

MAGISTRATES’ COURT OF VICTORIA AT PRESTON

Second Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 NOVEMBER 1997, AT 10.20 AM

Copyright in the High Court of Australia

MR D.A. PERKINS:   I appear with my learned friend, MR M.D. DEAN, for the applicant.  (instructed by Kuek & Associates)

MR G.R. FLATMAN, QC:   May it please the Court, I appear with my learned friend, MS K.E. JUDD, for the first-named respondent.  (instructed by the Director of Public Prosecutions (Victoria))

GAUDRON J:   The Court has been provided with a certificate from the Deputy Registrar to the effect that she has been informed by the Victorian Government Solicitor, solicitor for the second respondent in this matter, that the second respondent does not wish to be represented at the hearing and will abide by the decision of the Court.  Thank you.  Mr Perkins.

MR PERKINS:   If the Court pleases, I have prepared a very short summary of what I propose to put.  I wonder if I may ask to have that passed to the Court.  It is submitted that the question that arises in this case is one which raises the principle which we say is a fundamental and basic principle.

GAUDRON J:   What is that?

MR PERKINS:   That a person is entitled, upon a trial for an offence, to have the parameters of what is being put before the court cast into a form in which those parameters are bound.

GAUDRON J:   That is not the case, is it?  The fundamental principle is that an accused person is entitled to know the case against him and to have an opportunity to meet it.

MR PERKINS:   That, in our submission, is one part of the principle.  There is another part of the principle which, in our submission, is that a court is called upon to bind the prosecution to the particulars which are provided by the prosecution to the court and that that binding of the prosecution is an essential part of the administration of the criminal law, and it is an essential part inasmuch as it is long and well recognised and it relies on notions of certainty, formality and precision.  It is submitted that the right, if it is correct to call it a right, to bind the prosecution is one which is an essential part of a fair trial and, specifically, it is essential in so far as it provides the formal basis of the hearing and the determination of the charge that is before the court.

McHUGH J:   The function of particulars is to enable a party to know the case that he or she has to meet.  It cannot circumscribe the charge, either criminally or civilly.

MR PERKINS:   It is accepted that one of the functions of particulars is precisely that, with respect.  It is said that another of the functions of particulars and to the extent that there is a difference between a civil case and a criminal case, the proposition is one which attracts greater force in a criminal case.  The function of particulars includes the function of providing the specific agenda for the court to proceed on, to make decisions as to the admissibility of evidence upon and it provides a basis for the record, in the true sense of the expression, of the court.  It is part of the formal business of the court and - - -

McHUGH J:   In Victorian are particulars filed as part of the record of the court?

MR PERKINS:   In summary cases generally, when particulars are given, they are filed although there is no universal practice to that effect that I am aware of but the practice is, generally, that they are filed.  That, in my submission, would merely be one of the factors which might indicate that they are, indeed, part of the record.  The fact that they may not be in some cases would not, in my submission, establish that they are not properly to be regarded as part of the record.  I would submit that the - - -

GAUDRON J:   There is no doubt, however, that - your client was represented, was he not?

MR PERKINS:   Yes, he was.

GAUDRON J:   And there was no doubt as to the case to be made against him?

MR PERKINS:   With respect, that is not clearly so.

GAUDRON J:   Was there not a statement by the prosecutor?

MR PERKINS:   The information that my client received was from three, at least, sources:  the information itself; the particulars which were supplied in writing and, as the Court of Appeal decided, the things that were said orally by the prosecutor; and, thirdly, by the provision of the police brief.  Now, the provision of the police brief is something which commonly occurs in Victoria as a result of the two factors mentioned in the application book.  They are a decision of Sobh which opened up the possibility of obtaining the police brief, so to speak, on freedom of information requests and, secondly, the amendment to the schedule to the Magistrates’ Court Act which perhaps formalised that procedure and made it unnecessary to go to freedom of information sources.

So, the effect of those two factors is that in summary trials in Victoria there is a right recognised by the schedule to obtain copies of what has traditionally been referred to as the police brief, which includes the statements.  Now, it is in those precise circumstances that we say that the difficulty arises.

GAUDRON J:   What difficulty?

McHUGH J:   Yes, what difficulty?  Your written argument is conspicuous for its lack of detail.

MR PERKINS:   The things of which we complain are the things - - -

McHUGH J:   I know what you are complaining about but what is your argument and what is the authority because it is very difficult, at least for me, to determine from your summary of argument what is that you are putting sufficient to attract the grant of special leave to appeal in this case?  This being a case in which Justice Phillips said “the matter has occasioned two appeals without any apparent merit”, and Justice Brooking said that he was afraid that the appeal had “served to waste a good deal of public and private.....money”, and the time of this Court is being taken up by material and by an argument which, to my mind at the moment, borders on ridiculous.

MR PERKINS:   The way it is put, with respect, is that the decision of the Court of Appeal will be received as sanctioning the view that in cases of narrow compass, and it is submitted that that is an unsatisfactory expression and, hence, provides an unsatisfactory test, that particulars are of no significance in requiring a court to keep a prosecution case within particular bounds.  This case raises no question about amendment and that is because whatever the prosecution could have done, it did not at any stage make an application to amend.  Accordingly, it is submitted that that question simply does not arise.

GAUDRON J:   What is the difficulty that you say the applicant faced?

MR PERKINS:   The difficulty is this, if I can put it in these terms:  it is submitted that the necessary formality of the proceedings requires that the offence, once it has been identified and once particulars of it have been requested, should be stated and that the prosecution should be kept or confined within the particulars that have been provided.  It is submitted that it is not sufficient for the particulars to allow the prosecution to prove the case in a number of different ways.

McHUGH J:   If there is any injustice to the accused because the prosecution case seeks to depart from the particulars, the magistrate is entitled to deal with it either by granting an adjournment or, in an appropriate case, confining the defence to the particulars, but I still have not grasped what is your fundamental complaint here.

MR PERKINS:   The fundamental complaint is that, firstly, the magistrate declined to bind the prosecution to the particulars which had been provided.  His Honour Mr Justice Byrne, in turn, made a decision which had precisely the same effect.

McHUGH J:   Yes, anything further?

MR PERKINS:   It is submitted that the Court of Appeal in its decision adopted the decision of his Honour Mr Justice Byrne and articulated no - I should say, gave no satisfactory or appropriate articulation of the principle which relates to binding the prosecution to the case that is being put.

McHUGH J:   Now, even if everything that you have said was right, how would that attract the grant of special leave from this Court?  And I do not, for a moment, accept that as an accurate summary of what occurred in this particular case.

MR PERKINS:   It is submitted that that would attract the grant of special leave in circumstances where this decision of the Court of Appeal will be regarded, in the applicant’s submission, as rendering it unnecessary in cases where the police brief has been provided to adhere to or to bind the prosecution to particulars if they are given.  Now, in our submission, that is a substantial departure from recognised functions of particulars. 

McHUGH J:   Even on your own submission, all it comes to is that in the particular circumstances of this case the magistrate allowed the prosecution to proceed otherwise than in accordance with their particulars.  Now, how does that attract the grant of special leave, and how could any professional practitioner ever think that it would?

MR PERKINS:   With respect, the decision of the Court of Appeal is one which must be taken to proceed on the basis of a principle.  In my submission, when the principle upon which it proceeds is sought, it can be seen that it is a principle which, firstly, derogates from a long established value of the common law relating to certainty, precision and formality.

McHUGH J:   You keep making these statements but what authority have you that will support that there is a function of particulars other than to let the accused know, to be apprised of the case which he or she has to meet?

MR PERKINS:   I would refer to Giles v Samuels (1972) 3 SASR 307.

GUMMOW J:   That decides that in the facts of that case there had been a sufficient prejudice in the conduct of the defence.

MR PERKINS:   The passage at page 310 that I wanted to refer to is the passage where it is, about halfway down the page, pointed out that:

In some cases there may be no dispute about it which is the vital episode, but the defendant is still entitled to bind the prosecutor to it.

McHUGH J:   Where is this passage, Mr Perkins?

MR PERKINS:   That is slightly below halfway down page 310.

McHUGH J:   That does not mean anything.  Chief Justice Bray is not saying that that is the beginning and end of the case.  That is an expression that one uses all the time, that you are bound.  You are bound to conduct your case in accordance with your particulars but if a magistrate, for some reasons, thinks there is no injustice to an accused person he will allow the prosecution or, in a civil case, a plaintiff to depart from the particulars.  As Justice Isaacs said in this Court nearly 90 years ago, “The object of granting particulars is that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet and to guard against surprise.”  That is the object of particulars.

MR PERKINS:   Whilst it is accepted that that is, indeed, an object of particulars, it is submitted that perhaps as is pointed up by the passage of Johnson v Miller (1937) 59 CLR 467 and the part that I was wanting to refer to is at page 497.

McHUGH J:   That is a statement made in the context when the defendant was wanting to know which of 30 men who had emerged from the hotel was the subject of the complaint.  It has nothing to do with a case like this.

MR PERKINS:   Whilst I concede, clearly, the - - -

GUMMOW J:   And that is what Justice Phillip said at page 22.

MR PERKINS:   I am sorry, I missed the - - -

GUMMOW J:   It is what Justice Phillip said about the relevance of Johnson v Miller is dealt with at pages 21 and 22 of the application book. At the top of page 22:

that type of uncertainty was not present in the case now under appeal -

et cetera.

MR PERKINS:   Accepting that, the part of his Honour Mr Justice Evatt’s judgment that I wanted to refer to was about three-quarters of the way down where he talked in these terms.  He said:

It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection.  These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged.

McHUGH J:   Well, you knew what the offence was to be charged in this case.  It is a very different case altogether from Johnson v Miller.  The only possible function of particulars in this case was to know the broad nature of the factual case that was going to be made against you and that was supplied to you, to use the modern jargon, “in spades”.  You not only were given particulars, you were provided with a copy of the whole of the police brief.  Now, if anybody ever knew the case that he had to meet it was this defendant.

MR PERKINS:   With respect, and I say this in the context where I am conscious that both his Honour Mr Justice Byrne and his Honour Mr Justice Phillips in the Court of Appeal identified the distinction between evidence and particulars, nevertheless, in my submission, what your Honour has just said does not give appropriate recognition to the use of the particulars as a means of excluding evidence or as a means of testing the admissibility of various pieces of evidence.

McHUGH J:   It does, Mr Perkins, because while the evidence is there - while the particulars are in a particular form, you are entitled to say, “This is something I am not in a position to meet”, but if the evidence is relevant to the charge itself - and we are not dealing with a Johnson v Miller-type situation - then the evidence is strictly admissible.  Your complaint is not that the evidence is inadmissible but that you have been denied natural justice by reason of the particulars and then it is up to the magistrate or whoever is presiding in the case, either to refuse to accept the evidence because it would involve a denial of natural justice or to give you an adjournment or an opportunity to meet that evidence.

MR PERKINS:   In my submission, whilst, plainly, factually, this case is a very long way from Johnson v Miller, it has these similarities - - -

McHUGH J:   How can it have these similarities if it is a very long way from Johnson v Miller?

MR PERKINS:   If I may say so, in terms of the quantum but not the principle.  In terms of the principle, it was not clear precisely what it was that was said to constitute a theft of these documents at any stage, in my submission.  It was open to the prosecution to pick a number of different stages and to attempt to - - -

GAUDRON J:   It is the assertion of a right inconsistent with that of the true owner.  That is learnt at first-year law.

MR PERKINS:   Accepting that, the question was as to when it was that that occurred if, indeed, it had at all and it was as to that question - it is not a matter of simply the definition of “theft”.  Clearly, we do not suggest any question arises as to that but the question that we do say arose in this case was as to just how it was that the prosecution was putting its case.

McHUGH J:   Well, your time has expired and it seems to me a serious question arises in this case as to whether or not, if this application is refused which, to my mind, it ought to be, the solicitors should pay the costs of bringing this application.  The reason for that, to my mind, is that the litigant, prima facie, would be acting on the advice of the solicitors and has incurred the cost of bringing this litigation which, in the Full Court, was said by two judges, one, they were “appeals without any apparent merit”, and Justice Brooking said they had “served to waste a good deal of public and private time and money.”, and now the application has been brought to this Court.

Now, I fully appreciate there may be cases where solicitors are instructed to bring a case irrespective of their advice, and perhaps this is such a case, but it seems to me at the moment that if this application is dismissed, that is a matter that will have to be dealt with by your client.

GAUDRON J:   I think at this stage we can indicate to Mr Flatman that we do not need to hear from him.

As you might have gathered from some of the questioning, the application is refused.  The Court is of the view that the application is

entirely without merit.  The decision of the Court of Appeal is undoubtedly correct and, moreover, the application raises no question of principle or general importance which would warrant the grant of special leave.  Accordingly, the application is dismissed.

McHUGH J:   Do you ask for costs, Mr Flatman?

MR FLATMAN:   I do in this case, your Honour, yes.  The history of the matter has been set out at some length in the judgment of the Court of Appeal and the comments by those judges were put in very strong terms and the matter has proceeded further.

McHUGH J:   Mr Perkins, I would certainly like to hear you, either now or at some later stage, in writing as to whether or not, if a costs order is made, those costs should not be paid by the solicitors in this particular case.  I do not know whether it is convenient for you to deal with it now or whether you would prefer to get some instructions and deal with the matter in writing or what the situation is.  But it seems to me that it does raise a question as to whether or not the solicitors, rather than the client, should be ordered to pay the costs if a costs order is made.

MR PERKINS:   I think my position is this, with respect, that I am not in a position to put submissions on behalf of the solicitor whose brief I hold.  I do make this observation that, in the response by the respondent, part IV, it was said that there was no special order as to costs sought by the respondent.  I do not say than that means more than it means but I say that that is a matter of some significance and, in my submission, there should not be any order for costs.  I think - I am not in a position to take the matter any further.

GUMMOW J:   Any order for costs at all?

MR PERKINS:   Yes.  In my submission, there should not.

GAUDRON J:   What is the basis for saying there should be no order for costs at all?

MR PERKINS:   I clearly cannot go around the things that have been said by the Court.  The Court has expressed a view about the matter.

GAUDRON J:   Is it put on the basis that it is a criminal matter?

MR PERKINS:   Yes, it is.

GAUDRON J:   Is there anything else put?

MR PERKINS:   I have drawn the Court’s attention to the response to part IV, that no special order as to costs was sought.

McHUGH J:   Mr Flatman, you seem to have changed ground.

MR FLATMAN:   I agree, your Honour.  I was not aware of that in the outline of argument put in on our behalf.  That is the normal position taken by the Crown in relation to criminal matters and, indeed, it was a response that comes from me perhaps spontaneously in the atmosphere, obviously, of today.  This is different - the position is that this has not, in fact, come through the procedure of criminal appeal.  It has come through the civil ‑ ‑ ‑

McHUGH J:   The Court of Appeal ordered costs.

MR FLATMAN:   Yes, they did.  Indeed, his Honour Judge Byrne did as well.  I would seek to vary the position that we take in the outline of argument.  That is an outline of argument that has been prepared obviously in the mistaken view that it was a criminal appeal, which has been the practice of our office for some time.  We get costs ordered against us in civil proceedings and, indeed, the civil proceedings are brought from time to time and they dislocate to some extent the normal trial processes.  I would, in the circumstances, seek to vary the position in the outline of argument and I would seek costs.

GAUDRON J:   Did you have anything further to say, Mr Flatman?

MR FLATMAN:   No, your Honour.

GAUDRON J:   You are perhaps lucky in this matter, Mr Perkins, in that the Court takes the view that the application not having been made at an earlier point of time, it would be inappropriate to award costs in favour of the Crown in this matter.  That is not to say, however, that the Court thinks it inappropriate for the Crown to seek costs in matters which are clearly without merit and it may be appropriate in some cases for them to seek costs on an indemnity basis or, indeed, against the solicitors personally.  That, however, is a matter for the Crown in future cases, whether they be civil or criminal.

MR PERKINS:   May it please the Court.

AT 10.55 AM THE MATTER WAS CONCLUDED