Re Director of Public Prosecutions (Commonwealth) & Anor; Ex parte Beljajev; Beljajev; Pinhassovitch v Director of Public Prosecutions (Commonwealth) & Anor; Ex parte Pinhassovitch
[1991] HCATrans 131
..
4
'I
• ~
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M23 of 1991 In the matter of - An application for a writ of
certiorari, prohibition and
habeus corpus directed to
THE HONOURABLE
MR JUSTICE MARKS, (a judge of
the Supreme Court ofVictoria) and DIRECTOR OF
PUBLIC PROSECUTIONS
(COMMONWEALTH) and DIRECTOR
OF PUBLIC PROSECUTIONS
(VICTORIA) and THE GOVERNORIN CHARGE OF THE MELBOURNE
REMAND CENTRE
Respondents
Ex parte
BORIS BELJAJEV
Applicant
Office of the Registry
Melbourne No M18 of 1991 B e t w e e n -
| Beljajev(2) | 1 | 4/6/91 |
BORIS BELJAJEV
Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS
(COMMONWEALTH) and DIRECTOR OF
PUBLIC PROSECUTIONS (VICTORIA)
Respondents
Application for special leave
to appeal
Office of the Registry
Melbourne No M30 of 1991 In the matter of - An application for a writ of
certiorari, prohibition and
habeus corpus directed to
THE HONOURABLE
MR JUSTICE MARKS, (a judge of
the Supreme Court ofVictoria) and DIRECTOR OF
PUBLIC PROSECUTIONS
(COMMONWEALTH) and THE
GOVERNOR IN CHARGE OF THEMELBOURNE REMAND CENTRE
Respondents
Ex parte
MORDECHAI PINHASSOVITCH
Applicant
Office of the Registry
Melbourne No M29 of 1991 B e t w e e n -
MORDECHAI PINHASSOVITCH
Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS
FOR THE COMMONWEALTH
Respondent Application for special leave
to appeal
MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
| Beljajev(2) | 2 | 4/6/91 |
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 4 JUNE 1991, AT 10.18 AM
Copyright in the High Court of Australia
| MR A.R. CASTAN, OC: | May it please the Court, I appear for |
the applicant Beljajev in both matters concerning
Mr Beljajev with my learned friends,
MR R. MERKEL, OC and MR A.D. HALSE. (instructed by H.S. Wise Gershov & Co)
| MR G.R. JAMES, OC: | May it please the Court, I appear with |
my learned friend, MR H.A. AIZEN, for the Director
of Public Prosecutions of the Commonwealth of
Australia in all matters. (instructed by the
Director of Public Prosecutions (Commonwealth))
MR B.D. BONGIORNO, QC: If the Court pleases, I appear with
my learned friend, MISS C.D. DOUGLAS, in the
special leave application on behalf of the Crown in
right of the State of Victoria and in respect of
the application No 23 of 1991 on my own behalf.
(instructed by the Director of Public Prosecutions
(Victoria))
MR G. GRIFFITH, OC, Solicitor-General for the Commonwealth:
If the Court pleases I appear with my learned
friend, MISS S.C. KENNY and MR S.J. GAGELER, to
intervene for the Attorney-General of the
Commonwealth, confined to the issue of support of jurisdiction to direct prerogative writs to the
on substantive or discretionary matters or on the State Court. We do not intend to put submissions special leave application and will put no submissions if the issue of whether or not the prerogative writ may be directed at the State Court does not arise for final determination by the Court
in this matter. (instructed by the Australian Government Solicitor)
MR H.C. BERKELEY, OC, Solicitor-General for the State of
Victoria: If the Court pleases, I appear with my learned friend MR R.A. BRETT, for the Honourable
Mr Justice Marks to submit to such orders as this
Court thinks fit to make. We also appear for the
Attorney-General for the State of Victoria and the
Attorney-General for the State of South Australia
| Beljajev(2) | 4/6/91 |
intervening in the interests of the respondent, but
only in the application for prohibition.
(instructed by the Crown Solicitor for Victoria and
the Crown Solicitor for South Australia)
| MR c.P. DANE, QC: | May it please the Court, I appear on |
behalf of Mr Pinhassovitch with my learned friend,
MR M.A. SCARFO, in both matters of the order nisi
and the special leave. (instructed by Pryles &
Defteros)
MASON CJ: Yes, Mr Castan?
MR CASTAN: | May it please the Court, these matters arise out of proceedings which, in effect, commenced by the | |
| ||
| charged with offences concerning drugs which | ||
| included importation offences and trafficking | ||
| ||
| 29 May 1989 and ran, with some interruptions, until 18 May 1990 at the conclusion of which bail was | ||
| refused. |
There was then an indictment presentment which
was served on 13 July 1990 and the matter came into
the control under the County Court Act of Victoria
of His Honour Judge Kelly and on 19 September 1990,
Mr Beljajev made an application for bail to
His Honour Judge Kelly, the judge who then had
control of the matter, he then having been in
custody for some 18 months or so, and that bail
application was refused on 28 September 1990.
I should interpose that His Honour
Judge Kelly, in the course of dealing with that
bail application, reviewed the nature of the kind
of case that it was and the nature of the evidence
that was being assembled and presented by the
Crown, including some 8500 hours of tapes which had
been made of the defendants, including the
defendant Beljajev, and gave lengthy consideration
in his reasons for refusing bail as to the underlying policy which governed the operation of
the relevant provisions of the Bail Act that I will
take Your Honours to shortly, and came to the
conclusion that this kind of trafficking in drugs
offences having been, in effect, equated with
murder for the purpose of consideration of bail,
then expounded at some length on the balancebetween the interests of justice and the right of a
person to prepare the defence and have access to
the material and resources that would enable the
review of those tapes by the defendant as against
the interest of the public in ensuring that a
person charged with such offences should ultimately
attend trial and be dealt with.
| Beljajev(2) | 4 | 4/6/91 |
| MASON CJ: | Mr Castan, before you get into the special leave |
aspects of the case, could you take us to the
provisions of the Victorian statutes that deal withthe jurisdiction of Mr Justice Marks to entertain
an appeal and the jurisdiction of the Full Court,
first of all, in order to deal with the contention
that jurisdiction by way of appeal was reposed in
the Full Court; and secondly, with a view to
ascertaining whether there is an appeal from
Mr Justice Marks' decision to the Full Court.
| MR CASTAN: | Yes, Your Honour, I am content to deal with that |
immediately. Do Your Honours have a copy of the Victorian Bail Act? We have, I think, some copies
that have been - - -
MASON CJ: There is a folder that has been handed up - by
which party I do not know - that purports to have
copies of the relevant legislation in it.
| MR CASTAN: | Yes, well my learned friend assures me that it |
has and I am indebted to him for having prepared the folder. We did not, but had copies, so I am
content for Your Honours to go to that Act. If I
could take Your Honours to section 4 of that Act,
Your Honours will see that the general principle is
there stated in section 4 that an:
Accused person held in custody entitled to
bail.
(1) Any person accused of an offence and
being held in custody in relation to that
offence shall be granted bail -
(a) ..... within 24 hours .....
and it is there stated in a general principle. Now then we come to subsection (2). Your Honours will see that:
provisions of subsection (1) a court shall (2) Notwithstanding the generality of the refuse bail -
And then there are the two cases that we would draw
Your Honours attention to:
(a) in the case of a person charged with
treason or murder except in accordance with
section 13;
And then (aa). And this is the critical provision: in the case of a person charged with -
| Beljajev(2) | 4/6/91 |
(i) an offence of trafficking in a drug of
dependence under section 71 of the Drugs,
Poisons and Controlled Substances Act 1981 or an offence of cultivating a narcotic plant under section 72 of that Act or an offence of conspiring to commit either of those offences
under section 79(1) of that Act; or
(ii) an offence under section 231(1), 233A or
233B(l) of the Customs Act 1901 of the
Commonwealth ..... in relation to a commercial
or trafficable quantity of narcotic goods
within the meaning of that Act -
and the offence is alleged to involve -
(iii) 30.0 grams or more of heroin; or
(iv) 100.0 grams or more of cocaine; or
(v) a prescribed quantity of any other drug
of dependence that is prescribed -
unless the court is satisfied that exceptional
circumstances exist which justify the grant of
bail;
Now, that provision, subsection (2)(aa), is the
provision which was considered twice by
His Honour Judge Kelly, under which he refused bail
in September last year and then granted it in April
this year.
If I could then take Your Honours immediately to
section 18A of the Act which appears at page 15 of
the print, if it is the current print that
Your Honours have, Your Honours will find that
there is there set out a provision which provides
for appeal by the Director of Public Prosecutions.
It provides:
Where a person is released on bail in an amount which appears to the Director of Public
Prosecutions to be inadequate or on conditions
which appear to the Director of Public
Prosecutions to be insufficient or in
circumstances appearing to the Director of
Public Prosecutions to contravene or fail to
comply with any of the provisions of this Act
and the Director of Public Prosecutions is
satisfied that an appeal should be brought in
the public interest the Director of Public
Prosecutions on behalf of Her Majesty may
appeal to the Supreme Court against the order
fixing bail for that person.
Then subsection (2) sets out that:
| Baljajev(2) | 6 | 4/6/91 |
he shall cause notice of appeal setting forth
the grounds to be given.
Subsection (3):
A notice required to be given to a
surety ..... may be given personally or by post.
Subsection (4) provides that there must be such
notice -
not ..... more than one month after the bail is
fixed without first obtaining leave.
Subsection (5) - that the Director may appear on an appeal and the respondent may appear.
Subsection (6):
Upon an appeal under this section the Supreme
Court shall if it thinks that a different
order should have been made quash the order
and, without in any way limiting the powers ofthe Supreme Court with respect to bail, make
any order in substitution therefor as it
thinks ought to have been made.
(7) If the respondent is not present in Court
when an order fixing bail is revoked ..... the
Court shall cause a warrant -
to apprehend him. If it revokes the order it is to commit him to prison to await trial. If it varies the amount it is require the respondent to find
other sureties. No costs are to be allowed under subsection (10). The respondent is entitled to be present, but the court may go ahead if for any
reason he is not present.
Now that is the operative section under which
the appeal was made to His Honour Mr Justice Marks,
and perhaps I should take Your Honours, before departing from the Bail Act, to section 13.
Your Honours will recollect I drew Your Honours'
attention to section 4(2)(a), which deals with
treason or murder, and says that the conditions in
treason or murder are set out in section 13.
Section 13 on page 11 of the print - I am told it
may be that Your Honours do not have section 13.
| MASON CJ: | We do not have it in this file, anyhow. |
| MR CASTAN: | Can we hand to Your Honours copies of the full |
Bail Act which may - Your Honours, I was saying
section 13 is to be found on page 11 of the print
and it deals with the case of treason or murder;
application for bail:
| Beljajev(2) | 7 | 4/6/91 |
Subject to sub-section(2), a court may grant
bail to an accused person -
that is subsection (1), deals with a person who has
attained 21, which I do not think is relevant,
then subsection (2)
Bail shall not be granted to a person charged with treason or murder unless -
(a) in the case of a person charged with
treason - the Supreme Court or a judge of the
Supreme Court; or
(b) in the case of a person charged with
murder -
(i) the Supreme Court;
(ii) a judge of the Supreme Court; or
(iii) the magistrate who commits the person
for trial for murder -
is satisfied that exceptional circumstances
exist which justify the making of such an
order.
Now, Your Honours will observe that the test is the same as that laid down in section 4(2)(aa), dealing
with drug charges, that is to say, exceptional
circumstances exist which justify the making of the
order. The interesting reference there to which we
draw attention and Your Honours will see the
significance of it in a moment, is that in
section 13 there is a reference to "the Supreme
Court or a Judge of the Supreme Court". That
distinction is explicitly made. In section 18A,
there is no reference to a judge of the supremecourt, there is simply a reference to the "Supreme
Court". The significance of that I will now take Your Honours to.
If I could draw Your Honours attention to the
Supreme Court Act 1986 of Victoria. In section 3 of that Act there are some definitions. Just picking up the relevant ones: the definition
section defines -
"Court" means the Supreme Court.
And then "Full Court" is defined to mean:
the Court when constituted by two or more
Judges.
If I could then take Your Honours to section 4
of that Act which prescribes what is to happen when
a power or authority is vested in the court or in a
| Beljajev(2) | 4/6/91 |
judge. Section 4(4) of the Supreme Court Act
provides:
If by or under this or any other Act in force
immediately before the commencement of this
Act any jurisdiction, power or authority is
vested in a Judge of the Supreme Court -
(a) that jurisdiction, power or authority may
be exercised in accordance with this Act and
the Rules by the Court in all respects as that
Judge might have done;
so the distinction is drawn between the court and
the judge, the court in its various manifestations
having the power to deal with a matter where poweris conferred on a judge. Then it provides:
(b) the Court constituted in accordance with
this Act -
and those words are significant -
and the Rules has jurisdiction, power or
authority co-ordinate with the jurisdiction,
power or authority of the Judge.
That is dealing with a case where the authority has
been conferred on a judge and it picks up and gives
co-ordinate authority to the court as defined,
which effectively means, as we will see, the Full
Court in addition to a single judge. then
subsection (5):
If by or under this or any other Act in force immediately before the commencement of this
Act any jurisdiction, power or authority is
vested in the Court or in any Judge by the use
of the words "the Court", "the Court or a
Judge", "the Supreme Court or any Judge
thereof" or "a Judge of the Supreme Court" or
by any words referring to the Court or to any Judge, that jurisdiction, power or authority may be exercised by the Court in accordance with this Act and the Rules. So there, in subsection (5), references in
other legislation, however expressed, are expressly
directed to be governed by this Act.
Perhaps I should take Your Honours to
subsection 6:
(6) Sub-section (5) has effect even if the
Act vesting jurisdiction, power or authority
in the Court or in any Judge designates the
Court or Judge as the court, judge, arbitrator
| Beljajev(2) | 9 | 4/6/91 |
or person appointed to hear and determine any
matter and even if the determination is
expressed to be final or without appeal, but
if the determination is expressed to be final
or without appeal an appeal does not lie from
a determination of the Court.
So it contemplates those provisions which expressly provide there shall be no appeal.
Now if I can take Your Honours to the operative provisions.
They appear in sections 10,
11 and the additional question that Your Honour the
Chief Justice addressed to me appears in
section 14. I will come to that also. To take Your Honours first to section 10.
That provides that:
(1) The Court constituted by a Judge may hear and determine all matters, whether civil or
criminal, not required by or under this or any
other Act or the Rules to be heard and
determined by the Full Court.
So there was express conferral of power on a judge
to hear all matters, but it is all matters "not
required ..... to be heard and determined by the Full
Court", and that is expressed as "may hear and
determine"; that confers power.
Subsection (2) provides:
Unless otherwise expressly provided by this or
any other Act, an appeal lies to the Full
Court from any determination of the Court
constituted by a Judge.
So, there is a general right of appeal unless there
are express provisions saying there is to be no
appeal in relation to a judge.
Then, in section 11, there is the provision
which is operative here and which, we would
respectfully submit, has the effect that His Honour
Mr Justice Marks had no jurisdiction or power to
deal with the matter. It says:
(1) The Full Court must -
we draw attention to the "must":
hear and determine -
(a) all appeals from the Court constituted by
a Judge;
(b) all applications for new trials;
| Beljajev(2) | 10 | 4/6/91 |
(c) all appeals from the County Court
constituted by a Judge.
Section ll(l)(c), Your Honours, is the provision
which expressly provides that the Full Court must
hear:
all appeals from the County Court constituted
by a Judge -
and then goes on to deal with:
(d) all appeals, applications, questions and
other matters, whether civil or criminal,
which by or under any Act are required to be
heard or disposed of by the Full Court or are
referred to or reserved for the consideration
of or directed to be brought for argument
before the Full Court.
Your Honours have seen that the Bail Act in
section 18A provides for an appeal to the supreme
court. The constitution of the supreme court, and the meaning to be given to those words, are
expressly dealt with in section 4(5) which says
where those words are used, or equivalent words:
authority may be exercised by the Court in
accordance with this Act -
that is the Supreme Court Act and the Supreme Court
Act lays it down that single judges of the SupremeCourt of Victoria shall not sit on appeal from judges of the County Court of Victoria.
In our respectful submission, the matter is
that simple and that short. His Honour sat and he should not have sat. He had no power to deal with
the matter.
| BRENNAN J: | Was any objection taken to his jurisdiction? |
| MR CASTAN: | It was not, Your Honour. | I think the answer to |
that question is that the operation of
section ll(l)(c) was simply missed by all
concerned, including His Honour and the parties. I think that is a fair statement. I have come recently into the matter, but that is my
understanding.
Can I take Your Honours over to deal with the
other question that I understand Your Honour
the Chief Justice has addressed to me, which is the
question of appeal to the Full Court from
His Honour Mr Justice Marks, assuming one was to
endeavour to appeal from that decision on the basis
that there was no jurisdiction. That.is dealt with
| Beljajev(2) | 11 | 4/6/91 |
in section 14 in express terms, and that provides
in section 14(3):
Except as provided in Part VI of the
Crimes Act 1958 -
and that is, of course, dealing with appeals on
ultimate conviction and sentence -
an appeal does not lie from a determination of the Court constituted by a Judge made on or in
relation to the trial or proposed trial of a
person on indictment or presentment.
So there is no appeal from determinations by a
judge in relation to trials or proposed trials
except ultimately by way of the matters that may be
raised on an appeal against ultimate conviction,
which presumably would include aspects of unfair
trial and any other matters that one might draw in
being orders or conduct of the matters prior to
trial which it is alleged led to an unfair trial.
But there is to be no appeal in the meantime.
I drew Your Honours' attention, I think, to section 10(2) which provides the general right of
appeal to a Full Court -
from any determination of the Court
constituted by a Judge.
But, of course, that is preceded by the words -
unless otherwise expressly provided by this or
any other Act -
and that is precisely what section 14(3) does. It
provides otherwise.
So the position here is that on the face of the legislation there is no appeal from His Honour
Mr Justice Marks, assuming His Honour had jurisdiction, or assuming that he did not there is
no appeal available for the purpose of establishing
that His Honour was without jurisdiction.
MASON CJ: That seems an extraordinary result - - -
MR CASTAN: It does.
MASON CJ: - - - that a Full Court has no jurisdiction or
power to correct a usurpation of its own
jurisdiction by a judge of the court.
MR CASTAN: Well, it does, its - - -
| Beljajev(2) | 12 | 4/6/91 |
McHUGH J: There is authority against this sort of argument,
is there not. There are a number of cases in
England in the House of Lords where it has been
held that although the word - it might not be
determination of an order might be a nullity - yet
it does have sufficient effect to allow an appeal
to be brought against it. I just cannot think of
the name of the case now, but there is a House ofLords decision right on this point.
| MR CASTAN: | The difficulty with it is that, by definition, |
one is then saying that there is an appeal and that
is the very thing that the section says one cannot
do. What is said in effect is you must wait. The
supreme court itself has looked at this section in
Boehm's case, that is Boehm v Director of
Public Prosecutions, (1990) VR 494. The way in which Their Honours dealt with it was to interpret
section 14 as permitting an appeal in those matters
or instances which could not possibly be the
subject of a ground or an appeal - found an
appeal - under Part VI ultimately on conviction and
sentence, but if the matter was one which could
ultimately form the basis of founding a ground of
appeal in relation to appeal against conviction and
sentence, then Their Honours view was that no
appeal was permissible, and on the view expressed
in Boehm one would be required then to determine
whether or not the wrongful exercise of
jurisdiction here by the judge refusing bail is a
matter of the kind which ultimately might be the
subject of complaint as founding a ground of appeal
against conviction and sentence.
DAWSON J: But it clearly would not, would it? It clearly
would not, would it?
MR CASTAN: | In our respectful submission it would if what had happened was that there had been a refusal, an |
| exercise of jurisdiction so as to revoke bail and therefore no bail granted and ultimately the | |
|
DAWSON J: But that would not be appeal against a refusal to
grant bail or revocation of bail. That would be
for a different reason. You cannot cure the situation under the Crimes Act. You cannot reverse the decision below, for instance, and that is the
normal result of an appeal. It may have some
bearing on an appeal under the Crimes Act in
relation to some other ground, but there is no
appeal under the Crimes Act in relation to a
refusal to grant bail, is there, or revocation of
bail?
| MR CASTAN: | No, there is no appeal in relation to such a |
revocation of bail. The question as we read the
| Beljajev(2) | 13 | 4/6/91 |
way in which the court has framed the test in
Boehm, what appears to be said is that if the
matter which might have otherwise been the subject
of appeal to the Full Court could found a ground of
appeal ultimately against conviction and sentence,then it cannot - - -
DAWSON J: Precisely the idea which lies behind
section 14(3), and I have not read Boeh.m's case,
would be that points are not to be taken in the
trial or preliminary to the trial which can be
tested in the wash-up after the trial has been
brought to a conclusion. In other words, you are
not to take proceedings by way of appeal during the
course of the trial when you can do so at the
conclusion. But if no appeal is available from a
particular decision under the Crimes Act, then
section 14(3) does not exclude an appeal. And
there is no appeal under the Crimes Act for a
refusal of bail or revocation of bail.
| MR CASTAN: | No, there is no such express |
| DAWSON J: | It may be that you would have a ground of appeal |
if you had been unable to prepare your defence or
for some other reason the refusal or revocation had
affected you, to have an appeal on an independent
ground, but there is no appeal from the decision in
relation to bail.
| MR CASTAN: | No, but the way in which Their Honours pose the |
criteria, and there seems to be a generous reading
of section 14(3) if I may put it that way, is
perhaps best expressed at page 499, if I could take
Your Honours to that- page, at line 26 where they
say:
It is necessary to identify the determinations which fall within the description of a determination made on or in relation to a
trial or proposed trial from which an appeal
lies under Pt VI of the Crimes Act. By ss. 566 and 567 of the Crimes Act a person
convicted on presentment by appeal to the Full
Court against the conviction in the various
circumstances specified in the latter section.
There is an unfettered right to appeal against
a conviction on a matter of law and an appeal
by leave of the Full Court upon questions of
fact or of mixed fact and law.
Then it sets out section 568:
"The Full Court on any such appeal against
conviction shall allow the appeal if it thinks
that the verdict of the jury should be set
| Beljajev(2) | 14 | 4/6/91 |
aside on the ground that it is unreasonable or
cannot be supported having regard to the
evidence or that the judgment of the court
before which the appellant was convicted
should be set aside on the ground of a wrong
decision of any question of law or that on any
ground there was a miscarriage of justice and
in any other case shall dismiss the appeal:
"Provided that the Full Court may,
notwithstanding that it is of opinion that the point raised in the appeal might be decided in
favour of the appellant, dismiss the appeal if
it considers that no substantial miscarriage
of justice has actually occurred."
A person unfamiliar with the system of
criminal appeals against conviction which
exists in Victoria and elsewhere, might on a
literal reading think that an appeal lies only
from a conviction, and that otherwise no
appeal lies from any determination by a judge
made on or in relation to a trial or proposed
trial. In a strict sense that is so. There
is no separate appeal under Pt VI of theCrimes Act against a determination or order of
an interlocutory nature made on or in relation
to a trial ..... In the substantive sense,
however, an appeal does lie if the trial
results in a conviction because the effect of the making or failure to make a determination relating to the trial can be relied on by the convicted person in support of the appeal
J. that theagainst conviction. thus in the case of determination of Fullagar
presentment should not be quashed, when Mills
appealed against his conviction on the trial,
it was open to him to raise and argue the
point that the conviction should be set aside
because of a wrong decision of a question of
1~. .
And it refers to Kean and Mills.
It follows that an appeal lies under
Pt VI of the Crimes Act from a determination
made on or in relation to a trial or proposed
trial if the effect of making thedetermination may, if the trial results in a
conviction, be raised and relied on in support
of an appeal against the conviction.
Now that is the point at which Your Honours express
it in its broadest framework.
| Beljajev(2) | 15 | 4/6/91 |
On an appeal against conviction the effect of
such a determination may be relied on as
having introduced to the trial a wrong legal
foundation or as having brought about a
miscarriage of justice. It is not necessary to consider whether it could be relied on in
other ways. Thus on an appeal against
conviction the incorrectness of such a
determination may, in substance, be relied on.The determinations made by Ormiston J. in
dismissing the applications were clearly
determinations in relation to the proposed
trial of the appellants on presentment. Were they determinations from which, in the sense
mentioned above, an appeal lies under Pt VI of
the Crimes Act? In our opinion they were.
The effect of the determinations was to
allow the trial to proceed. His Honours's
decision that to allow the trial to proceedwould not involve an abuse of process was
based on his conclusion that it was not shown
that the appellants would be unable to obtain
a fair trial or, in other words, that it was
not shown that the trial would necessarily be
unfair. If His Honour were wrong in that
conclusion, the effect of his decision would
be to permit the appellants to be tried in an
unfair trial. If the appellants do not have a
fair trial there will have been a miscarriage
of justice. In that situation the appellants,
if convicted, could on an appeal against
conviction raise and argue that the
determinations of Ormiston J. were wrong andthat they brought about a miscarriage of
justice.
And then Their Honours go on:
In our opinion, the words ins. 14(3) "on
or in relation to the trial or proposed trial" recognise the reality that it is not only the
effect of determinations made on the trialwhich can be relied on in support of an appeal against conviction ..... On many appeals the
inquiry is whether the quality of the trialwhich resulted from all the determinations
which were or were not made on or in relationto the trial, was such as to amount to a miscarriage of justice.
And goes on:
A trial may be unfair and a miscarriage
of justice may therefore occur as a result of
determinations made other than on the trial.
| Beljajev(2) | 16 | 4/6/91 |
A miscarriage of justice could result from the
refusal by a judge other than the trial judge
at a pre-trial hearing -
not granting an adjournment. He refers to Clarkson: A trial is to be commenced within 18 months of
the date of committal -
and so on and Their Honours go on to give examples
and then at line 25:It is of importance that the question
before the court is one of statutory
interpretation. Section 14(3) does not
distinguish between determinations of a judge made in the exercise of different powers. If
a determination is one from which, in the
sense which has been discussed, an appeal lies
under Part VI of the Crimes Act, the
subsection excludes it from the appeal given
by section 10(2) regardless of the power in
exercise of which the judge made it. It makes
no difference whether the determination made
on or in relation to the trial or proposed
trial was made upon an application to exercise
the inherent power of a trial judge to ensure
a fair trial, a power given by statute,
regulation or rules of court, a power of
judicial review, the supervisory power of a
superior court or any other power. It is therefore not necessary in this case to
investigate whether the power of a trial judge
to stay a trial to prevent an abuse of process
depends upon the existence of different
criteria from the criteria which would justify
a similar stay in the exercise of a
supervisory jurisdiction.
Now, what Their Honours are saying is that there
simply is not an appeal in relation to any of the matters that might found a ground of ultimate
attack upon the fairness of a trial in due dourse,
even though the ground is not something relating to
the actual proceedings in the trial. And Their Honours examples illustrate some of the kind of things which might occur preliminary to trial.
On that view, if that be the correct view, then manifestly, in a case like this, there is a
situation in which the refusal of bail, the whole
foundation of the application for bail in the
exceptional circumstance that has been the subjectof such debate in this case, is that it is said
that the accused is being denied the opportunity to
prepare his defence. It is the unfairness of that
which founded the first application which was
| Beljajev(2) | 17 | 4/6/91 |
unsuccessful; His Honour Judge Kelly weighing the
matter up, and then the second application, six
months later, where he ultimately said, "This
cannot go on with this accused being denied the
opportunity to prepare his defence", and His HonourJustice Marks taking a different view.
Now, that is the very matter - the whole
question of fairness of the preparation is what was at issue about whether that amounted to exceptional
circumstances. Now, if Their Honours' view in Boehm is the correct view, or on the face of the
section as it would seem, unless some other view is
taken of the section in a much broader way or appeal.
different way than Their Honours have taken in the
| BRENNAN J: | Mr Castan, the prohibition against an appeal by |
section 14(3) of the Supreme Court Act could not
have been intended by the legislature to apply to a
decision of a judge on appeal from a district
court, could it? After all, if your first argument
is right, it was never in contemplation the judge
would entertain an appeal from the district court.
MR CASTAN: Quite so, Your Honour.
BRENNAN J: Well then, how can 14(3) lie in the way of a successful application to the Full Court to set aside a purported, but ultra vires, order of a
judge?
MR CASTAN: | The difficulty is that it is an order. determination. It is constituted by a judge. | It | is a |
It
ison or in relation to the trial - -
| DAWSON J: Well, ..... doubt that that is so. | I would not |
accept it as on or in relation to the trial, but go
on.
| MR CASTAN: Certainly, it is a view that the Full Court |
seems to have taken that it is and - - -
| DAWSON J: | There is no decision to that effect. | You are |
just relying on Boehm's case, are you?
| MR CASTAN: | Yes, Your Honour. |
DAWSON J: Yes, all right.
| MR CASTAN: | The broad view is there expressed in those |
terms.
BRENNAN J: Whatever way in which you seek to bring the case
within 14(3), if your first argument is wrong, it
| Beljajev(2) | 18 | 4/6/91 |
must be that 14(3) is not intended to exclude it
because it would never have been in contemplation.
| MR CASTAN: | I am sorry, Your Honour. | If our first argument |
is - - -
BRENNAN J: If your first argument as to the jurisdiction of
the Full Court and the jurisdiction of a single
judge is correct, section 14(3) could never have
been intended to preclude an application to the
Full Court on a question of jurisdiction
because 14(3) was enacted on the hypothesis that no
single judge would ever entertain an appeal from
the county court.
MR CASTAN: Precisely, Your Honour. It was so enacted on
that basis and that is our submission. The difficulty is that on its face - we face the
twofold difficulty, as we have endeavoured to put
it to Your Honours - it seems to say there is no
appeal from a determination of the court
constituted by a judge which is what has occurred
here, granted, as we would respectfully submit,
without jurisdiction - that is step one. And,
secondly, the Full Court has already said that
matters of that kind - and it is expressed fairly
broadly, but what they have said is - which go to
the issue of fair trail ultimately are matters to
be the subject of appeal against conviction and
sentence.
| BRENNAN J: | Mr Castan, if it be arguable - let us put it no |
higher - that the Full Court has jurisdiction to
give effect to the provisions of sections 10 and 11of its own Act and to control a purported but
invalid exercise of jurisdiction by one of its
judges, should this Court entertain an application
for a prerogative writ in advance of a
consideration of the jurisdiction by the Full Courtof the Supreme Court of Victoria?
We are here because, on the face of it and on
the face of Boehm, there appears to be nowhere else
to go, Your Honour. I understand the way in which Your Honour puts it, and Your Honour puts "Well,
should the matter be argued there first".
But we would respectfully submit that if the ground is good, the matter is raised here and the
Court has jurisdiction, and raised on a special
leave application so as to ensure that we are not
faced with a barrier to appeal such as section
14(3), or the argument that section 14(3) operates
as a barrier, then our respectful submission is
that this Court should deal with the matter. I do not think I can put it any - - -
| Beljajev(2) | 19 | 4/6/91 |
| DAWSON J: | I take you back, then, to the question of whether |
the order is made on or in relation to trial. It is not made on the trial, is it? And in so far as in relation to the trial is concerned, it does not
determine in any way the manner in which the trial
is to be conducted, so perhaps in a most indirect
sense - - -
MR CASTAN: Well, we would respectfully submit, on the face
of it it appears to deal with in relation to the
proposed trial.
| DAWSON J: | How is it in relation to it? |
MR CASTAN: | It relates to the preparation - the whole point of the argument about bail relates to - - - |
DAWSON J: That may be a consequence of it, but it does not
mean that it is in relation to it because the
question of bail arises from the very earliest
stage, from the stage of arrest.
| MR CASTAN: | Oh yes. | One can conceive of cases where the |
issue of bail does not have any relationship to the
trial or proposed trial but that would not be this
case, where the issue of bail, arising in the
context of the exceptional circumstance, has
expressly been on the issue - what has been debated
is the question of the preparation - the ability ofthe accused, the applicant here, to prepare for the
trial.
| DAWSON J: | You see, it may be just an unfortunate |
consequence that he cannot prepare for his trial.
It may be that exceptional circumstances do not
exist, notwithstanding that he would wish to use
the time which he would otherwise have to prepare
for his trial.
MR CASTAN: | That would be a view that might be -has been debated and is one of the issues in those |
|
But whichever way one looks at it, in this
case it is clear that the question of bail does
arise in relation to the trial because the wholeissue about exceptional circumstances here relates
to his capacity to prepare; whether a fair trial
can be had given his being, in effect, prevented
from access to these taped materials.
DAWSON J: That may be not what is meant by section 14(3).
Bail relates to what is to happen to the accused
pending trial, it is preliminary to trial. It is
not in relation to the trial at all, it is in
relation to something that occurs before the trial.
| Beljajev(2) | 20 | 4/6/91 |
The mere fact that it has indirect
consequences, as many things may have indirect
consequences, does not mean that it falls within
section 14(3).
As I read Boehm's case there is nothing in that which says that it does.
| MR CASTAN: | We would respectfully submit - perhaps I am |
repeating myself, Your Honour - we submit that
where the issue is "can a fair trial be had given
that this defendant is being prevented from access
to materials which are essential for the
preparation of his defence", that that then raises
the question whether a fair trial can be had, and
that certainly - - -
DAWSON J: That may be an indirect consequence, but it does
not mean that the determination of bail is made "in
relation to the trial". It is made in relation to something quite different. The fact that it has consequences, well, that may be so.
| MR CASTAN: | We cannot put it in any other way than I have |
put to Your Honours.
There are, of course, numerous statements of the courts which bear upon the question of whether
that which occurs prior to trial amounts to a
matter which affects the trial.
DAWSON J: That is not the question. It is a question of
whether the determination is "in relation to the
trial".
| MR CASTAN: | The examples I was going to give were those cases which have talked about the necessity to |
| access to evidence and the necessity to inform - - - | |
| DAWSON J: Well, every decision made at the committal would |
fall within the ambit of section 14(3) if what you
say is right.
| MR CASTAN: | Many decisions potentially would, but they would |
not be determinations of the court constituted by a
judge. Those which for one reason or another cameup before a judge would be. This section,. of course, would not affect what might happen in
relation to those and there are numerous
pronouncements of this Court on the undesirability
of - - -
| DAWSON J: | The determination of the judge here is on appeal |
from a determination of someone else, made
elsewhere. The real decision is the decision that
| Beljajev(2) | 21 | 4/6/91 |
was initially made - what is in question is the
decision that was initially made by
Judge Kelly -
| MR CASTAN: | Yes, Your Honour. |
| DAWSON J: | - - - and what he was deciding was not in |
relation to the trial, but in relation to something
preliminary to the trial. What section 14(3) does direct itself to is quite obvious: that you are
not to have appeals during the course of the trialor the course of those matters which must be
decided by the court in which the trial is to be
held before the trial is held. But ultimately in
the wash-up you will be able to contest thosematters. But bail is different.
MR CASTAN: Well, I do not think I can do more than refer to
Boehm as we have done, and having taken a much
broader view than the view that has been expressed
by Your Honour and draw Your Honours' attention to the section and its terms, and to submit - we have
proceeded to date upon the assumption that there
was no appeal for the reasons that we have
outlined. I cannot put the matter higher than that. That appears to be the position. We are
here because it was assumed that the section andthe relevant decision on the section appeared to
say that we could not go anywhere else. Now, I
cannot, I think, put it any higher than that to
Your Honours.
Your Honours, my learned friends have just
handed to me a decision which is a decision in the
matter of Kanfouche, which was handed down by the
Full Court of the Supreme Court this morning at
quarter to ten, I am informed, and in which
Their Honours held that there was no appeal to the
Full Court from a single judge making a
determination under section 14(3). I must confess that the report has just been handed to me and I
cannot enlighten Your Honours as to the basis - - -
MASON CJ: But what sort of determination was it? Was it in
relation to a trial in the supreme court or a trial
in the county court?
| MR CASTAN: | I am informed, Your Honours, that it was a |
decision of a judge to grant bail, and it was an
appeal under section 18A against the decision of a
supreme court judge who granted bail. So it was the attempted exercise of the power under
section 18A which speaks of an appeal to the
supreme court, the question being whether appeal to
the supreme court, if the judge who granted the
bail is a supreme court judge, does the supreme
court then mean the Full Court? And the
| Beljajev(2) | 22 | 4/6/91 |
Full Court has said it does not. I am told it involves drug trafficking. I am really unable to assist Your Honours further with it because it has
literally been handed to me, but I simply mention
it and there may be others at the bar table who are
more enlightened about the case of Kanfouche than I
am.
| MASON CJ: | Mr Castan, you have not had an opportunity of |
looking at this decision.
| MR CASTAN: | No, I have not. |
| MASON CJ: | It may be of critical importance on the point. |
Do you want a short adjournment to consider it?
MR CASTAN: | We would be indebted to have a short adjournment because it may turn out to be not really relevant, |
| I just cannot say, Your Honour, and given that it | |
| has just been handed down it would be of | |
| assistance - may be of assistance to the Court. | |
| MASON CJ: | Do you want to hand the copies up? |
| MR CASTAN: | Yes, we have got copies and I can hand them up, |
Your Honour.
| MASON CJ: | One has the impression that had Mr James been a |
little more generous you might have been offered a
copy of this earlier, Mr Castan?
| MR CASTAN: | I do not think so, Your Honour, it has been |
walked in, it was faxed up I gather, and copies
have been run since we started. My learned junior was given one, but I was already addressing
Your Honours.
| MASON CJ: | Now, subject to looking at this decision and |
perhaps giving us the benefit of the submission,
having looked at the decision, is that the
conclusion of what you want to put on the points
that were identified initially to you?
| MR CASTAN: | Yes, it is, Your Honour. | The jurisdiction point |
is a very short one, and I put it, and the appeal
point is - I think I have said all that can
properly be put, but I would appreciate theopportunity to look at this case and see - - -
MASON CJ: Yes. Well, we might ask Mr Dane if he wants to
put any submission on these matters?
MR CASTAN: If Your Honours please.
| MASON CJ: | I do not know whether he has see the judgment. |
Mr Dane?
| Beljajev(2) | 23 | 4/6/91 |
| MR DANE: | If the Court please, no, there is nothing that we |
wish to advance that has not been advanced already.
We just adopt that. We do not wish to occupy this Court's time at all.
MASON CJ: Yes. Mr Castan, we could, of course, hear the
respondents at this stage. You could, no doubt, pay attention to their argument, at the same time
peruse the judgment. Would you object to our hearing the respondents or would you prefer an
adjournment?
| MR CASTAN: | I would have no objection to hearing the |
respondents and it may be appropriate then to
adjourn for a short time before I am given the
opportunity to address in reply on the limited
issues we have canvassed, Your Honour.
| MASON CJ: | Mr James? | ||
| MR JAMES: |
|
filed with the folders fairly extensive written
submissions, more extensive than was usual in the
case of an outline, and that because we sought to
meet all matters except those matters going to the
jurisdiction for issue of the prerogative writs.
As to those matters, we simply turned to the question of discretion and also to the questions of
the substantive point. Our submissions as to the discretionary matters, which are common both to the
issue of the prerogative writs and to special
leave, are to be found at page 9 of our outline,
and in particular we raised the question of the
lack of intercession of an intermediate appellate
court as going to both the question of whether
special leave should. be granted and also thequestions of whether or not this Court would issue
a rule absolute.
Your Honours, the question, however, of the
Commonwealth State relations are questions that we
would leave to the Solicitor-General for Victoria, and we would not seek to address in our own right any particular arguments on those matters. Your Honours, the matters that Your Honour the
Chief Justice has raised concerning the
jurisdiction of the Full Court and of a single
judge are dealt with in Kanfouche, which was
delivered to me at the bar table and I have
attempted to digest that case as my friend has been
putting his argument.
Your Honours, it appears that in that decision
the Full Court of Victoria considered for itself
the question of whether or not there was
jurisdiction to entertain an appeal under
| Beljajev(2) | 24 | 4/6/91 |
section 18A of the Bail Act from a single judge of the supreme court to the Full Court of Victoria in a case which involved the necessity for exceptional
circumstances under section 4(2)(aa) of the Bail
Act arising from an allegation of a drug offence.
The offence was in fact an offence against theCustoms Act and thus did involve the federal
jurisdiction.
The court examined the historical basis of
admission to bail and in particular how that was
vested in or exercised by a single judge, and the changes effected by the Bail Act, and pointed out that nothing in the Act was intended to reduce the
common law jurisdiction of the supreme court to
hear and determine an application for bail. It is
still possible in Victoria to make an application
to a single judge in the inherent jurisdiction,
unlike New South Wales, where the Act itself forms
a complete Code.
The examination was made of section 18 which
provides also for an appeal by the person in
custody, and the recognition of the grant of
jurisdiction to the supreme court appears at page 3
where Mr Justice Smith had exercised the grant of
that jurisdiction at common law subject to the
requirements of the Bail Act.
Their Honours, in the majority judgment, at
page 4 point 4, set out the question:
whether, within the language of
section 18A(l), an appeal from a judge of theSupreme Court to the Full Court is an appeal
to the Supreme Court.
There are two aspects to this question.
The first is whether an appeal from a judge of
the Supreme Court to the Supreme Court
constituted otherwise could ever be
characterized as an appeal to the Supreme Court. The second is whether, within the phrase 'the Supreme Court', there resides an
answer -
Their Honours were of the view that an appeal from
a judge of the supreme court could not be
characterized as an appeal to the supreme court and
that the construction of the words "the supremecourt" does not import of necessity the Full Court.
Their Honours turned to the Constitution Act
1975, section 75(1) and 75(3), at the bottom of
pages 4 and 5. We are having copies of that made for Your Honours. Might I hand up eight copies.
| Beljajev(2) | 25 | 4/6/91 |
BRENNAN J: This was a case where the original order was
made by a judge of the supreme court, is that
right?
| MR JAMES: | Yes, Your Honour. |
BRENNAN J: It is not a case of an appeal from a county
court judge?
| MR JAMES: | No, Your Honour. | It is an attempt to appeal from |
a single judge of the supreme court.
BRENNAN J: Exercising original jurisdiction in bail?
| MR JAMES: | Yes, Your Honour. Your Honour, section 75(1) of the Constitution Act of Victoria 1975 Your Honours |
| photocopied extract. That section creates the | |
| Supreme Court of the State of Victoria and by | |
| section 75(4), appearing at the top of page 38, provides that: |
The Court shall be constituted by a Judge or
Judges, except in the case of any proceeding
for which provision is made by any Act or
enactment or by rules of court for the Court
to be constituted by a Master.
The Court shall be a court of record, and
shall have and use as occasion may require a
seal -
under section 76, and section 85 provides:
Subject to this Act -
That is the Constitution Act -
the Court shall have jurisdiction in or in
relation to Victoria its dependencies and the
areas adjacent thereto in all cases whatsoever
and shall be the superior Court of Victoria with unlimited jurisdiction.
Subsection (3):
The Court has and may exercise such
jurisdiction (whether original or appellate)
and such powers and authorities as it had
immediately before the commencement of the
Supreme Court Act 1986.
(4) This Act does not limit or affect the
power of the Parliament to confer additionaljurisdiction or powers on the Court.
Section 86:
| Beljajev(2) | 26 | 4/6/91 |
The Court constituted by a Judge may award a
writ of habeas corpus for bringing any
prisoner detained in any gaol or prison before
any Court to be there examined as a witness.
Habeas corpus ad testificandum is preserved
expressly.
Your Honours, the Supreme Court Act itself
provides in section 5, after dealing with the
abolition of the distinction between court and
chambers and the interpretative provisions to which
my learned friend referred in section 4(4), (5) and
( 6 ) :
Subject to any express enactment to the contrary and to the Rules, the practice and
procedure in all criminal proceedings in the
Court is that existing immediately before the
commencement of this Act.
In our written submissions we have referred to
cases in both Victoria and in New South Wales and
in United Kingdom, including Kray, from which we
draw the submission that prior to the passing ofthe Supreme Court Act and the Bail Act, and, in our
submission, subsequent thereto, matters of bail
were to be dealt with by one judge exercising the
powers of the supreme court. Both historically and
in accordance with the practice of the court and in
accordance with, what appears to be, the universal
practice of courts on these matters, absent direct
and express statutory requirement for the matter to
be dealt with by a Full Court. And Their Honours turn from the construction of the nature of the
court, at the bottom of page 4 in the judgment of
Kamfouche, to a description at page 5 of the effect
of the Constitution and point out that the
Full Court:
is not a different Court from the Court
created by the Constitution. It means the Court when constituted by two or more judges -
and refers to section 3(1) of the Supreme Court
Act. They continue:
The Court constituted by a judge may hear and
determine all matters except those required by
the Supreme Court Act or another Act or the
Rules to be heard by the Full Court -
and refer to section 10(1).
These provisions reflect the concept of the
Supreme Court as a single entity susceptible
| Beljajev(2) | 27 | 4/6/91 |
of being differently constituted for
particular business or purposes.
And they refer to section 11 prescribing the
matters which must be heard by the Full Court, and
that the list of matters in section 11(1) is not
exhaustive. Might I take Your Honours to
section 11(1)?
| DEANE J: | Mr James, I am a little bit lost. | do you say this |
decision directly bears against any of Mr Castan's
arguments?
| MR JAMES: | Not in his ultimate ratio, Your Honour, it is - |
| DEANE J: | Now, what about his first argument, that is that |
the Act expressly provides that a decision from the
county court should be to a Full Court, and this is
a decision from a county court judge.
| MR JAMES: | It expressly does not deal with that situation, |
Your Honour, but - - -
DEANE J: This judgment does not.
MR JAMES: It does not. In fact, they disclaim dealing with
that situation.
DEANE J: Well that is what I was looking at.
| MR JAMES: | However, the reasoning, particularly at pages 12 |
and 13 - - -
| DEANE J: | I follow that aspect. | Now, if Mr Castan be right |
as to the effect of the Act, does this judgment
then have anything to say to the case? In other
words, if the appeal had to go to the Full Court,
does this judgment say that the Full Court lacks
jurisdiction to correct Justice Marks' assertion of
jurisdiction?
| MR JAMES: | No. | The only matter that it does go to is |
whether the requirement that the matter should go
to the Full Court produces an absence of
jurisdiction or a mere error in the mode of
exercise of that jurisdiction particularly in thelight of there being no challenge below and no
examination of the consequences of Mr Justice Marks
having sat as a single judge when, on Mr Castan'ssubmission, it should have been the Full Court.
DEANE J: Well then, if he be right in his first argument,
this judgment supports him on the second argument.
MR JAMES: It may, Your Honour.
| Beljajev(2) | 4/6/91 |
| DEANE J: | I am just trying to understand where it fits in. |
| MR JAMES: | Your Honour, I must confess that my analysis of |
it is undertaken very much on the run delivered to
me, as it has been, in the same fashion and I am
trying to draw the Court's attention to those
passages in which Their Honours appear to be
grappling with the sections that are directly
concerned, though from a different viewpoint.
At page 6, Your Honours, the court adverts to
the civil proceedings and that for the purpose of
construing section 10 and section 11 of the Supreme
Court Act and reached the conclusion:
that the words "to the Supreme Court" ..... do
not extend to an appeal from the Supreme
Court.
Then, the court turns to the consequence of the
Director's submissions that:
section 18A(l) would be brought into play in
the event of:
(b) an appeal from the order of a single
judge of the Supreme Court -
and reaches the conclusion at page 7:
that the Director has no right of appeal under
that section from a grant of bail by a SupremeCourt judge -
on the consequence of that reading pointing out
that: · There is nothing curious in such a result -
that indeed - and the thrust of the case from then
on is that it is the supreme court which is made
the custodian and repository both in its original jurisdiction and in its supervisory jurisdiction in
relation to bail, that an applicant can come againboth in the inherent jurisdiction and the Director
can, under section 18, seek to revoke but beyond
that, in their submission, in the argument advanced
by the Director, or on the basis of the argument
advanced by the Director, one goes no further.
| McHUGH J: | I am a bit bewildered, I must say. | I cannot see |
what 18A had to do with this case at all. They had gone from the Chief Magistrate to a judge of the
court. One would have thought that exhausted 18A.
The question then was whether there was a direct
right of appeal to the court as a whole or
whether 10(2) operated.
| Beljajev(2) | 29 | 4/6/91 |
| MR JAMES: | Your Honour, the way in which it had come about |
was the respondent applied to the Chief Magistrate for bail but his application was refused. He then applied to a supreme court judge in the practice
court, seeking the exercise in his favour of the
inherent jurisdiction to grant bail notwithstanding
it being refused by a magistrate. That was not an
18A appeal. It is only from the supreme court
judge granting bail that an 18A appeal is sought to
be brought and that it was sought to bring to the
Full Court because it was thought that one could
not appeal from a single judge of the supreme court
to another judge of the supreme court.
Page 7 supports the proposition that section 18A, the appeal is limited and there is, in
effect, no appeal from a single judge of the
supreme court.
McHUGH J: I am sorry, I am still not following this. Are
you saying that the appeal to the judge was based
on the inherent jurisdiction and granted on
the - - -?
| MR JAMES: | Yes, Your Honour. |
McHUGH J: | How does that arise, having regard to the Bail Act in 4(2)(aa)? |
| MR JAMES: | The Bail Act, Your Honour, in Victoria is not a |
complete Code. Indeed, the Act itself expresses a
preservation - - -
| MASON CJ: | Mr James, it may be to everyone's advantage if we |
do adjourn for, say, 10 or 15 minutes, so that not
merely the members of the bench but counsel alsocan read this decision a little more closely.
| MR JAMES: | May it please the Court. |
| MASON CJ: | We will take a short adjournment for that |
purpose.
| 11.26 AM SHORT ADJOURNMENT |
UPON RESUMING AT 11.48 AM
MASON CJ: | Mr James, we have had an opportunity of reading the judgment. It is a curious judgment in a number |
| of respects. But could I ask you first, is it a | |
| judgment of the entire court or is it merely a |
| Beljajev(2) | 30 | 4/6/91 |
judgment of two members of the court with a
dissenting or an additional judgment?
| MR JAMES: | I have been informed, Your Honours, though it |
does not appear from the judgment, that His Honour Mr Justice Murphy had been taken ill and published no judgment. It is a judgment, as I understand it,
of the two members of the court. In that sense, it
is the judgment of the Full Court.
| MASON CJ: | Now, the other comment I proposed to make to you |
was this: reading the judgment a question
immediately arises as to the significance of
section ll(l)(c) and whether section ll(l)(c) wassufficiently taken into account.
MR JAMES: Section ll(l)(c) was taken into account directly
in what Their Honours have said, and indeed they
refer to it at page 13 - - -
| McHUGH J: | I think the relevant word is "sufficiently". |
| MR JAMES: | Yes, I appreciate what Your Honours say. |
Your Honours, ll(l)(c) is not the only provision.
My friend has taken Your Honours also to ll(l)(d)
and that provision provides that the Full Court
must hear and determine:
all appeals, applications, questions and other
matters, whether civil or criminal -
and that is the only point in sections 10 and 11 at
which there is specific advertence to both civil
and criminal matters and also 10(1) -
may hear and determine all matters, whether
civil or criminal -
it is the only point in section 11 where there is
advertence to civil and criminal matters -
which by or under any Act are required to be heard or disposed of by the Full Court or are
referred to or reserved for the consideration
of or directed to be brought for argument
before the Full Court.
And of course, it is our submission that the
Bail Act does not import any express requirement
that an appeal must be heard by a full court. The implicit requirement is said to arise by the utilization of sections 10 and 11 and it may well
be that ll(l)(c), as we put in our outline of
submissions, is to be confined to appeals from the
county court, other than in relation to criminal
matters and other than in relation to matters for
which appeals lie to the Full Court under the
| Beljajev(2) | 31 | 4/6/91 |
Crimes Act and that that would arise by virtue of
section 5 of the Supreme Court Act and by the
preservation in section 18(5) of the Bail Act,
where it provides that:
The foregoing provisions of this section shall
not in any way limit or derogate from any
right of application or appeal to the Supreme
Court or the County Court which any person may
have apart from the provisions of this
section.
Which it is considered, supports the proposition
that there remains in an applicant the right to
come again, albeit it is called by section 18:
an appeal against refusal or bail or
conditions of bail.
And by section 18(5):
right of application or appeal to the Supreme
Court or the County Court -
Your Honours, indeed, at the back of the folder of
material we have provided, Your Honours will see a
number of cases which are simply illustrative ofthe way in which the jurisdiction is exercised in
Victoria. The first is Tundrea, a decision of Mr Justice Ormiston 20 June 1988. That appears to be an application in the inherent jurisdiction,
after refusal by a magistrate. The second decision is that of Mr Justice Gobbo in Ienco; a decision in
which there was apparently an appeal against that
refusal of bail and apparently under section 18.
The next decision is that of Mr Justice Crockett in
Nittes and that was a case in which there was a section 18A appeal by the Director of Public
Prosecutions from the decision of a magistrate, and
the matter of Banks, in which again there was an
appeal under section 18A from a magistrate, and the
matter of Dauer, again where there had been an appeal by the Director of Public Prosecutions under
section 18A in relation to the grant of bail by a
magistrate.
| BRENNAN J: | What does that demonstrate, Mr James? | |
MR JAMES: | It is simply illustrating the way in which there are both inherent applications and appeals under | |
| ||
| applications notwithstanding a refusal below, purported appeal applications, if one could call | ||
| them appeal applications under section 18, and | ||
| appeals under section 18A. All seem to coexist in | ||
| the light of section 18, subsection (5), which |
| Beljajev(2) | 32 | 4/6/91 |
preserves the supreme court's inherent right to
grant bail.
| BRENNAN J: | What appeal rights are there under |
section 18(5)?
| MR JAMES: | The Act seems to call the application under |
section 18(5) an appeal, Your Honour.
| BRENNAN J: | What is an illustration of a case where an |
appeal lies under section 18(5)?
| MR JAMES: | When there has been a refusal, Your Honour, of |
bail below - either a refusal or -
having been granted bail ..... objects to some
amount fixed or condition -
an accused may make application, the section says,
although the headnote says "appeal" -
for an order granting bail or varying the
amount of any bail -
to a magistrate, whether sitting in court or
chambers;
or -
to the court to which he be required to
surrender himself under the conditions of the
bail -
and, indeed, His Honour Judge Kelly, was granting
bail as the court to which the present applicant
was required to surrender himself.
Subsection (5) goes on to provide that:
The foregoing provisions of this section shall
not in any way limit or derogate from any
right of application or appeal to the Supreme Court or the County Court which any person may
have apart from the provisions of this
section.
The application would no doubt be in the
inherent jurisdiction and the appeal essentially
the appeal of the Director.
BRENNAN J: That is under section 18A?
| MR JAMES: | Under section 18A, yes, Your Honour. |
BRENNAN J: | So the only jurisdiction of the Full Court is either to a single judge for an order for bail in |
| Beljajev(2) | 33 | 4/6/91 |
the original jurisdiction of that court or an
appeal under section 18A by the Director?
| MR JAMES: | By the Director, yes, Your Honour. | Or the appeal |
under section 18 itself because it seems that
section 18 creates something different from the
thing that it recognizes in section 18(5).
| BRENNAN J: | Was section 18(5) there before section 18A? |
MR JAMES: It appears so, yes, Your Honour.
| BRENNAN J: | When it was enacted it could hardly have had in |
contemplation an appeal under section 18A. It must
have been some other appeal.
| MR JAMES: | The contemplation appears to be that the word |
"appeal" is often enough used in bail cases as
referring, perhaps incorrectly, to the application
to a supreme court judge for bail or for variation
of bail, where there has been a refusal below. The word has been considered in New South Wales in relation to what the New South Wales Bail Act, in
fact describes as a review, and clearly in New
South Wales although the Act is different, and at common law it has been said often enough that there
is no appeal in bail matters.
BRENNAN J: Well that is what I was thinking. Here there is an application to original jurisdiction or there is an appeal under 89. Those are the only two
phenomena with which we are concerned.
| MR JAMES: | And to which I can. point the Court, but as |
His Honour Mr Justice Toohey has pointed out, it
appear that that word was there before 18A.
BRENNAN J: It was there for what it was worth, as it were.
It does not do anything.
| MR JAMES: For what it is worth, yes, Your Honour. |
BRENNAN J: Here we are concerned with an 18A appeal and the
operation of 18A in conjunction with sections 10
and ll(l)(c).
MR JAMES: But, Your Honour, the comfort that we take from
the historical analysis is that it would take, in
our submission, considerably more to require a
matter to be determined by the Full Court in the
light of the history and the background concerning
how bail was sought and granted, and the
supervisory role of the supreme court, which could
be exercised by a single judge, than to simply
leave the matter to be derived implicitly from a
| Beljajev(2) | 34 | 4/6/91 |
simple reliance on section 10 and ll(l)(c) in the
light of the existence of ll(l)(d).
BRENNAN J: Why is that? Section 18A is a novelty.
| MR JAMES: | But ll(l)(c), Your Honour, deals also with: |
all appeals applications, questions and other
matters, whether civil or criminal -
and in that sense it limits it to those:
which by or under any Act are required to be
heard or disposed of by the Full Court or are
referred to or reserved.
The Bail Act neither requires nor refers nor reserves or directs, either directly or indirectly,
and section 5 of the Supreme Court Act - - -
BRENNAN J: This is in a section which compels the Full
Court to hear and determine.
MR JAMES: If there is a requirement, yes, Your Honour.
BRENNAN J: That is under (d), but under (c) - - -
MR JAMES: | Yes, Your Honour, but - Your Honour, on that basis - - - |
| DAWSON J: | Why is it not an appeal from a county court |
judge? As I understand what you are saying, prior
to the Bail Act - and it seemed to me for many years that whoever drafted this Bail Act had a limited understanding of the subject with which he
was dealing - there was jurisdiction, an inherent
jurisdiction in the supreme court to hear anapplication for bail notwithstanding that the same
application had been dealt with by another
jurisdiction.
| MR JAMES: | Yes, Your Honour. |
DAWSON J: | And that was not an appeal, it was an original jurisdiction. |
| MR JAMES: | Yes. |
DAWSON J: Engrafted upon that by section 18A was something
which we can only call an appeal because the
section itself calls it an appeal, by the DPP.
| MR JAMES: | No, Your Honour. |
DAWSON J: Well, the section calls it an appeal.
MR JAMES: It is called an appeal.
| Beljajev(2) | 35 | 4/6/91 |
DAWSON J: All right, the section calls it an appeal and it
is something in addition to and different from that
which existed previously. It being called an
appeal, we go to section ll(l)(c), and in this case
it was an appeal from a county court judge if
appeal be the correct word, and section ll(l)(c)
says that the Full Court must hear and determine
it.
MR JAMES: If it is an appeal for the purposes of ll(l)(c)
of the Supreme Court Act.
DAWSON J: Well, why is it not?
| MR JAMES: | Because, Your Honour, firstly, ll(l)(c) is not |
exhaustive, in our submission. It has to be
considered in the light of (d) and in the light of
section 5.
DAWSON J: | But if it falls within (c) that is the end of the matter. |
MR JAMES: Certainly, if it does, but the question we are
seeking to pose is whether it does.
DAWSON J: Well, why does it not?
| MR JAMES: | One, because we say that it is not an appeal as |
the Supreme Court Act normally talks about - and
indeed, that is covered in some of the remarks made
by Their Honours in Kanfouche.
| DAWSON J: | How do you put that argument? | You say |
section 18A, although it says that this is an
appeal, does not mean what it says. In reality, it
is only giving to the Director of PublicProsecutions locus standi to make a separate fresh
application. Is that what you say?
| MR JAMES: | Or to come to the supreme court to have the bail |
reviewed on the bases set out in that section.
| McHUGH J: That is still an appeal, is it not? I mean, |
there is no analogy between the right of the
Director to appeal under 18A and the common law right of an accused person to go from judge to
judge seeking bail.
| MR JAMES: | No, but there is an analogy, Your Honour, in relation to the right of the accused person, in |
| language is used in relation to bail but what | |
| happens in relation to that is simply an appeal, although it is called an appeal by the Act - - - |
McHUGH J: It says both. It talks about an application or
appeal.
| Beljajev(2) | 36 | 4/6/91 |
| MR JAMES: It does. |
McHUGH J: Well, appeal may have nothing to do there unless
some statute gives an appeal.
| MR JAMES: | Yes, Your Honour, but - - - |
DAWSON J: Section 18A only talks of an appeal, does it not?
| MR JAMES: | Only talks of appeal, but it talks also, in 18(6), of what is to happen and what the supreme |
Upon an appeal under this section the Supreme
Court shall if it thinks that a different
order should have been made quash the orderand, without in any way limiting the powers of
the Supreme Court with respect to bail, make
any order in substitution therefore as it
thinks ought to have been made.
Indeed, that is the one provision that expressly sets out what function the supreme court is to
perform on the matter being before them. But, as
this Court has pointed out, in Builders Licensing v
Sperway and, indeed, in the judgment of Your Honour
Mr Justice Mason, the use of the word "appeal" and,
in that case the even more specific provision,
"appeal by way of rehearing", is positively Delphic
when it comes to trying to work out just what is
the nature of the right conferred and how it should
be dealt with.
DAWSON J: That is as to the nature of an appeal, but an
appeal is an appeal.
| MR JAMES: | Your Honour, it is hard to quarrel with it, |
expressed in that fashion. What we are seeking to say - - -
| McHUGH J: | No one ever doubted in Sperway's case it was an |
appeal.
MR JAMES: Yes, but Your Honour, what we are seeking to say
is that what the Bail Act refers to as an appeal may not be the same thing that the Supreme Court
Act refers to as an appeal in ll(l)c) and as far as county court judges are concerned, certainly the
word "appeal" in ll(l)(d) would be just as
apposite.
DEANE J: But, if one were concerned with a case of refusal
of bail, what you say may well be irresistible but
where bail has been granted the supreme court had
no inherent jurisdiction to quash the order
granting bail, did it?
| Beljajev(2) | 37 | 4/6/91 |
| MR JAMES: | Yes, Your Honour. |
| DEANE J: | It did, as distinct from revoking the order? | Any |
judge can revoke an order made by another judge for
bail when he directs his mind to the circumstances,
but we are concerned with a power to quash an order
granting bail and I would be interested to
see - - -
MR JAMES: Absent statutory jurisdiction, the supreme court
did not quash an order for bail except by the issue
of the prerogative writs.
DEANE J: Yes, well that is a different thing which means
that what is conferred by 18A, confined only to the
Director, is a strict power of appeal to quash an
order that has been made.
| MR JAMES: | Indeed, Your Honour, it is almost as though it |
were a sort of statutory prerogative writ in the
sense that there are certain precise matters that
have to be adverted to and the remedy is quashing.
But the prerogative writ, of course, would issue
from a single judge rather than the Full Court
unless there were statutory prescription to the
contrary, and would hardly fall within the
definition of the word "appeal" except in thewidest possible sense.
| McHUGH J: | But why do you say that? I mean, first of all it |
talks about an appeal. You have a cause and notice of appeal to be filed. It has to set forth the
grounds of appeal. The appeal has to be brought within a certain period of time.
| MR JAMES: | All of that would equally apply if it is merely a |
particular form of statutory application known to
the Bail Act but not known to the Supreme Court
Act. The true question is: was Mr Justice Marks
absent jurisdiction by virtue of sections 10 and 11
and, in our submission, for that submission to
succeed it is not enough to say the same word is used for the two things. The thing the Supreme Court Act identifies in the light of the
constitution setting up the Supreme Court Act as it
does and the way in which the Supreme Court Act
allows the court's business to be assigned, the
question then arises as to whether Mr Justice Marks
was exercising jurisdiction even if there was an
error. And to get there it is essential, not only that it be held that the appeal goes to the
Full Court, but that it is such a jurisdictional flaw as to make Mr Justice Marks absent jurisdiction.
Now, Your Honours, the question as was put by
the Chief Justice to my learned friend was that
| Beljajev(2) | 38 | 4/6/91 |
question: what was Mr Justice Marks' jurisdiction
and what was the jurisdiction of the Full Court?
The question that Kanfouche raises is whether theFull Court has or has not jurisdiction. The case
does not go so far - and indeed, expressly
Their Honours reserved the question of what theposition is on an appeal from a county court judge.
MASON CJ: If that is so, what about page 18. It was
reserved at about page 13, but then it fructified
into a definite opinion on page 18, did it not?
| MR JAMES: | And, Your Honours, if one starts at page 8, |
consistent pattern but there is no appeal from the
Their Honours contrast the various terms "Supreme
supreme court judge, and then at page 9 point 5
refer to section 13 of the Supreme Court Act which
appears to distinguish between the supreme court
and a judge thereof, and points to the differing
dates at which each Act came into effect and the
abolition in chambers, and then examines the
parliamentary debates to see if there is anything
in that matter. They point out that the words: Supreme Court -
or the words -
appeal to the Supreme Court -
are variable in meaning, but they then, at page 10,
turn to testing their conclusion another way, and
that is whether the subsection could contemplatesuch an appeal.
At page 11:
The sub-section grants a right of appeal
in certain circumstances to the Supreme Court
but an "appeal to the Supreme Court" without more is insufficient to require or entitle the
intending appellant to appeal to the Full
Court.
The Supreme Court Act, Your Honours, provides, of
course, by ll(l)(a) that:
The Full Court must hear and determine -
(a) all appeals from the Court constituted by
a Judge.
The reference however there to required or entitled
appears to be a reference to ll(l)(d). The court
| Beljajev(2) | 39 | 4/6/91 |
continues looking at the history that a reference
in another statute -
to an appeal to the Supreme Court is generally
denoted an appeal to a single judge of that
court.
And examples thereafter are given including the
Valuation of Land Act and -
the Legal Profession Practice Act .. .. the
Medical Practitioners Act ... .. the DentistsAct -
and so forth. In contrast, it is pointed out at page 12, a number of other statutes:
give a right of appeal to the Full
Court eo nomine. Neither list is intended to
be complete or exhaustive -
and there is reference also to:
the Administrative Appeals Tribunal Act 1984. Moreover, where Parliament intends that there
should be an appeal from a single judge of the
Court to the Full Court, the statute expressly
so states.
An example is given of that. The conclusion is, at the bottom of page 12, in relation to modern
statutes -
Whenever an appeal to the Full Court is
intended that is expressly so stated.
McHUGH J: Well, Mr James, I must say, I come from another
State where the received professional opinion is
totally to the contrary of what is in these
passages. An appeal to the supreme court means an appeal to the court in Bank unless the contrary
said.
MR JAMES: With respect, Your Honour, no longer.
The Court of Appeal is now in New South Wales a
creature of statute and in that sense the question
arose as to whether bail appeals could in any way
be brought to a Full Court or to the
Court of Appeal, since the passing of the
Supreme Court Act. Those questions were examined
in some of the cases, Your Honours, set out on our
list of authorities and, in particular,
Your Honours will find them in Pakis, Harrod,
Hammill, Eaves v James and Eaves, all set out in
our list of authorities and dealing with attempts
to get to a Full Court or the Court of Appeal - - -
| Beljajev(2) | 40 | 4/6/91 |
McHUGH J: Yes, but they turn on section 17 of the
Supreme Court Act and the schedule, do they not?
| MR JAMES: | And they try to get there, even by habeas corpus, |
has not succeeded.
McHUGH J: Well, I know, but ordinarily in New South Wales,
if there is an appeal to the supreme court, that is
regarded as an appeal to the court in Bank.
| MR JAMES: | With respect, Your Honour, not with appeals from |
magistrates; not with the stated cases; the
prohibitions under the Justices Act.
McHUGH J: That is because they are specifically given
appeals to judges of the supreme court, or it is
picked up by other Acts in New South Wales.
| MR JAMES: | And indeed, the Supreme Court Act specifically |
provides for what appeals are to go to the Court of
Appeal, Your Honour, as I recall it, by an express
statement on appeals, for instance, from district
court judges, but - - -
DAWSON J: But in any event, Mr James, the remarks of the
Full Court in Kanfouche, which you were reading,
are directed to section 18A. They make no
reference to section 10 or section 11 of the
Supreme Court Act, which do deal expressly with the
Full Court and appeal - - -
| MR JAMES: | No, Your Honour. | At page 13, which I was just |
simply coming to when the question arrived, Their
Honours turn to the question of section ll(l)(c),
and they had already - - -
DAWSON J: But that is not the question; I am sorry, with
respect, the question is not the question which
they pose there. It is not a questionwhether:section ll(c) compels a reading of "the
Supreme Court Act" in section 18A(l) of the Bail
Act as "the Full Court", it is whether a decision having been made under section 18A, there is then,
by virtue of the Supreme Court Act, an appeal to
the Full Court.
| MR JAMES: | Yes, and Your Honour, the question they pose, at |
page 13, is equally as apposite to section ll(l)(a)
in relation to appealing from a judge of the upreme
scourt, and they forebear from expressing the
conclusion, as His Honour the Chief Justice pointed
to me, and they turn to section 10(2) at page 14.
DEANE J: But, what we must be concerned with first is
section ll(l)(c) and I follow you say that
section ll(l)(c) should be read as either not
extending to criminal matters at all,· or as not
| Beljajev(2) | 41 |
extending to bail matters in particular. Now if one finds nothing or no line of reasoning in this
judgment that is persuasive on that question, is
there anything else to be said?
MR JAMES: In relation to this judgment?
| DEANE J: | No, in relation to whether Justice Marks had |
| jurisdiction. | |
MR JAMES: | Yes, Your Honour, because this judgment did not seek to cover the field in relation to a county |
| court appeal, although as is pointed out at | |
| page 18, what Their Honours seem to suggest is | |
| that - - - |
| DEANE J: | I have put it badly. | If ll(l)(c) does apply to |
criminal matters, including bail matters, is there
anything further to be said as to Justice Marks'
jurisdiction?
| MR JAMES: | Yes, Your Honour. | He is a judge of a superior |
court of record, created so by the Constitution of
Victoria, exercising power as a judge of that
Supreme
court; business has been assigned by the taken to the exercise of his jurisdiction and noappeal is sought to be brought to the Full Court on
that question of whether or not he had no
jurisdiction, fell into jurisdictional error or
fell into error of law. It is sought, however, to
come directly to this Court, and there are both
discretionary matters and the question of the
status of Mr Justice Marks sitting as a judge of a
superior court
| DEANE J: | I have put it to you wrongly. | What you say would |
be compelling, to my mind, in terms of applications
for prerogative writs, as I currently see it, but
direct your mind to an application to this Court
for special leave to appeal from Mr Justice Marks'
decision.
| MR JAMES: | Your Honour, in our submission, such an |
application would not be entertained initially by
this Court. Without the intercession of an
appellate court this may be, it is put, a
sufficient intercession.
| DEANE J: That is what I was going to ask. | I would think |
that was unanswerable, but for this judgment. Well
now, do you say this judgment sub silentio or by
implication decides that Justice Marks was not
caught by section ll(l)(c) but had jurisdiction, as
a judge of the supreme court, to deal with the
appeal from the county court on his own?
| Beljajev(2) | 42 | 4/6/91 |
| MR JAMES: | By extension, rather than sub silentio, |
Your Honour, because of what is on page 18, yes.
DEANE J: Well then, assume against yourself that the view
at the end of the day in this Court was
that ll(l)(c) applied; do you say that we should
grant leave to deal with the matter or that we
should allow an application to be made to the Full
Court to deal with the matter notwithstanding this
judgment?
| MR JAMES: | To the Full Court, if Your Honour pleases. |
DEANE J: Notwithstanding this judgment?
MR JAMES: Notwithstanding this judgment.
| DEANE J: | On the basis that, the point never having been |
directly raised or argued and the court having said
that they are not really dealing with it, it is the
appropriate place to go.
| MR JAMES: | And particularly because this matter having |
arisen here in the way in which it has, this Court
would be entitled, before deciding that question,
to the views properly expressed on the county court appeal as well as the supreme court appeal, of that
body which is the superior court of record to
decide that as for Victoria which has that
experience.
DEANE J: Well, I have directed you down a narrow track
against your wishes, but I now understand.
| MR JAMES: | Your Honours, I do not want to be caught on |
Morton's fork.
McHUGH J: Well, can I put - I am sorry. Have you finished
answering Mr Justice Deane?
MR JAMES: Well, I should say, I do not want to be caught on
Morton's fork. I do not want to be forced into the position where a contention that the case supports me is thought to be a contention that it amounts to
sufficient intercession for this Court, in discretion, to go ahead with special leave.
DEANE J: Could I just forestall Justice McHugh for one
second. I put it to you on the basis of if this Court at the end of the day were against your submissions. What if this Court were of the view
that there was a very real argument that ll(l)(c)
did apply? On your submission, should we go on to deal with it, which effectively means granting
leave, or should we stop there so that an
opportunity can be made to take it directly to the
Full Court?
| Beljajev(2) | 4/6/91 |
| MR JAMES: | Your Honours, it presents this point. | We would |
submit that this case is never an appropriate
vehicle; that indeed, there was an absence of
exceptional circumstances, that that absence would
have been found at all points, that it is really a
case that involves an interlocutory step in
criminal proceedings and particularly in relation
to the exercise of jurisdiction concerning bail by
the supreme court.
DEANE J: Well, I follow that if we go all the way down the
path, but we are looking at special leave. Now, prima facie, if Justice Marks dealt with the matter, set aside an order for bail which he had no
jurisdiction to set aside and, if the matter is
foreclosed on an appeal to the Full Court, you
would need to talk a long long time to convince me
that we should not grant special leave to look at
the question.
| MR JAMES: | I accept that, Your Honour. | I do not think I |
would attempt, given those premises, to resist the
conclusion. Given those premises, we do not
concede that Mr Justice Marks had no jurisdiction.
DEANE J: That is what all my questions are directed to. If
one were of the view that it is very strongly
arguable that ll(l)(c) applied and that this matter
had to go to the Full Court, what would you be
saying that we should do; deal with that question
or adjourn the matter so attempts can be made to
have it dealt with by the Full Court?
MR JAMES: This Court may be able to remit it.
| MASON CJ: | The Court may be able to remit it? |
| MR JAMES: | Yes, I am thinking of that question. |
| McHUGH J: | Remit it to where? |
| MR JAMES: | The Full Court. |
| BRENNAN J: | What is this Court seized of to remit it? |
MR JAMES: Having granted special leave, it would only be
seized of the appeal.
| DEANE J: | Or grant limited special leave at that stage. |
MR JAMES: | No, the more appropriate course would be to go to the supreme court. |
DAWSON J: There may be time limit problems but they would
not present a practical problem, would they?
| Beljajev(2) | 44 | 4/6/91 |
| MR JAMES: | I would not think they would present a practical |
problem in the context of this litigation,
Your Honour. I am sorry, I think as far as I can I have answered what Mr Justice Deane was putting to
me.
| McHUGH J: | What I was going to ask you was, assuming |
Mr Justice Marks has no jurisdiction, how do you go
to the Full Court from his order on your hypothesis
that this - - -
| MR JAMES: | We could not go. | We have an order in our |
favour - - -
| McHUGH J: | No, I am talking about the other side. | You are |
suggesting that we should refuse special leave and
let them go to the Full Court.
| MR JAMES: | Your Honour has raised the decisions in which a |
decision - firstly, it is a decision of a judge of
a superior court. It is not a nullity, in our
submission. There is clearly a right of appeal
open on the question of whether that decision is or
is not within jurisdiction. Indeed, even statutory
courts, such as the New South Wales Court of
Criminal Appeal, have exercised appellate powers in
respect of convictions or sentences which they have
held to be nullities - - -
McHUGH J: Well, I know that, and that is the source of
Crane v Director of Public Prosecutions,
(1921) 2 AC, and Russell and Barton in the High
Court. But the language of section 14(3) seems to
create real problems about applying those
decisions, Mr James.· If there is a determination,
then -
an appeal does not lie from a determination of
the Court constituted by a judge.
MR JAMES: With respect, Your Honour, it is, as His Honour
Mr Justice Dawson pointed out, on or in relation to the trial or proposed trial of a person on
indictment or presentment. Not only does Boehm between interlocutory matters which
have those passages that my friend has taken the differences
might have an effect on the conviction at the end
of the day, such as - and giving a New South Wales
illustration that came to this Court - Marie, the
appeal against the failure to discharge a jury, the
appeal is against the conviction because it is
tainted by the improper failure to discharge the
jury, and matters that would not sound in the final
result.
| Beljajev(2) | 4/6/91 |
And, putting it in perhaps a not precisely
correct but perhaps useful rule of thumb basis, the
suggestion appears to be that if it is a matter
that would not sound in tainting the conviction,
such as to enable an appeal to be brought under the
Crimes Act, then it is a matter from which an
appeal can be brought if appeal is available.
| McHUGH J: | I must say I would have thought, contrary to what |
was said in Boehm, that the words "in relation to"
should be given a very wide meaning to protect the
Full Court from hearing appeals in respect of all
sorts of ancillary matters.
| MR JAMES: | And, of course, again, Victoria is not in the |
position of New South Wales, which has a specific
provision in its Criminal Appeal Act, section SF,providing for appeals to the Court of Criminal
Appeal in interlocutory matters. That has been
held recently, and I cannot give Your Honour off
the top of my head the name of the case, but that
has been held recently by the New South Wales Court
of Appeal, the existence of SF and the amendment to
the rules not to preclude the supervisoryjurisdiction of the Court of Appeal by the writs of
prohibition and certiorari and mandamus to a
district court judge conducting a criminal trial
insofar as it does not involve the matters to which
SF goes.
So in terms of jurisdiction, that is still to the Court of Appeal.
And in our submission, all
section 14(3) is seeking to achieve is that kind of
splitting up, as it were, or assignment of
business, and is not an impediment to going to the or in relation to the trial or proposed trial.
It is to be noted, Your Honour, that 14(4)
talks about an appeal not lying to the Full Court:
without the leave of the Judge constituting
the Court or of the Full Court, from an interlocutory judgment given by the Court constituted by a Judge except in the following cases - (i) when the liberty of the subject or the custody of minors is concerned.
Reading 14, both (3) and (4), it would be our
submission an appeal is open. That appears to be,
Your Honours, the tenor of what is said in
Kanfouche, at page 14, the reference to Kean andMills, and 15 in a reference to Boehm, and the court turned to a consideration of 10(2) again in
relation to Clarkson, which applied Boehm and where
| Beljajev(2) | 46 | 4/6/91 |
the Full Court held that there was a right of
appeal and the summary appears at the bottom of
page 16:
each of the three authorities to which we have
referred involved a criminal matter. In each
case, insofar as there was said to be
statutory exclusion of the operation of
section 10(2), it was an exclusion deriving
from availability of appeal otherwise to theFull Court.
That is, presumably under the Crimes Act.
At least in Boehm, which was followed in
Clarkson, exclusionary words within the
Supreme Court Act itself (section 14(3)) were
read narrowly, and section 10(2) was said to
be capable of wide operation in criminal
matters where section 14(3) did not stand in
the way.
Their Honours went on then to deal with "expressly provided" and then to the passage that
the Chief Justice took me to at page 18 in the last
four lines:
It may further be said that section 18A(l) was
enacted against the background that by exercise of a common law or superadded
statutory jurisdiction Supreme Court judges
would often grant bail upon original
applications.
Then, section 18A is interpreted in the light
of 18(6A) that:
It might be said ..... section 18A(l) simply
does not purport to cover the field; that it
does not intrude upon section 10(2) -
and that it is, in effect - - -
BRENNAN J: Where does the court derive the notion
that 18A( 1) :
gave the Director, for the first time, a right
of appeal from a grant of bail by someone
other than a judge of the Supreme Court to a
judge of the Supreme Court.
Where does that notion come from?
MR JAMES: That comes from the totality of the analysis. The history in terms of bail - the supervisory jurisdiction of the supreme court exercised by a
single judge that it is analogous to .the other
| Beljajev(2) | 47 | 4/6/91 |
functions performed pre-trial by single judges of
the supreme court, that on their analysis of 10(2)
and 11 it did not require that the matter should go
to the Full Court because if it were to require the
matter should go to the Full Court there would have
to be an appeal. It is really a conclusion,
Your Honour, expressed from what has gone on
previously and - - -
DAWSON J: There never was an appeal against a grant or
refusal to grant bail previously, was there? You could apply to the supreme court in its inherent
jurisdiction. If you were refused, you could apply
to another judge on changed circumstances or the
Crown could apply for revocation upon the basis of
changed circumstances, but there never was an
appeal.
MR JAMES: That is so, Your Honour, and, in particular,
there was never an appeal by the prosecuting
authority. There was, however, a habeas corpus for
excessive bail which was often referred to as an
appeal. There was also the right to come again to
the supreme court in its inherent jurisdiction
having been refused bail below, which was referred
to as an appeal.
DAWSON J: It was not, yes.
| MR JAMES: | Not a true appeal. | Indeed, the Lord Chancellor |
came into the jurisdiction in Kray's case which can
be found in our file of authorities at No 25, and
that is an illustration of how habeas corpus was in
fact used to make bail applications. The three applicants had been: committed to the Central Criminal Court on a
charge of being concerned with demanding money
for menaces. The committing magistrate having
refused bail ..... an application for bail was
made to the judge in chambers, who declined
jurisdiction and adjourned the application tothe Central Criminal Court ..... an application for bail was accordingly made to the Common Serjeant who heard ..... on its merits and refused it -
then -
de novo was made to the Divisional Court.
And it was contended on the hearing:
the Divisional Court had no jurisdiction to
hear an application de novo ..... without
determining ..... jurisdiction -
the divisional court -
| Beljajev(2) | 48 | 4/6/91 |
heard the application on its merits and
dismissed it.
The applicants thereupon made an
application for bail to the Lord Chancellor.
Your Honours, the headnote sets out fairly
effectively what transpired in the judgment, and
that is:
that, in so far as the Lord Chancellor as a
judge of the High Court had any jurisdiction
to grant bail ..... to issue a writ of habeas
corpus, that jurisdiction must be exercised in
accordance with the provisions of the
Supreme Court of Judicature
(Consolidation) Act, 1925 -
That the Lord Chancellor formerly had a right
to grant bail on an application for a writ of habeas corpus if the application were made in
vacation but not otherwise, but his
jurisdiction so to do had been taken away by
section 14(2) of the Act of 1960, and, thatapart from habeas corpus any application for
bail in a criminal proceeding before trial
otherwise than to a magistrate or to the court
of trial must now be made to a judge in
chambers at least in term time, or otherwise
to the vacation judge ..... Accordingly, the
Lord Chancellor had no jurisdiction, either
original or by way of appeal, to entertain the
application.
And it goes on to point out that:
Even if the Lord Chancellor as a judge of the
High Court had any jurisdiction, the
Lord Chancellor as one judge of that court
could not entertain an application after a
Divisional Court of the High Court had already
heard and determined it on the merits.
It is an example of what was referred to as appeals
in bail cases at common law, but the right given to
the Director, we accept, was a brand new creature
and the right in New South Wales was a brand new
creature also, and that is referred to as a review.
Your Honours, I think that, leave aside the questions of convenience, which are adverted to at
19 and 20 of Kanfouche, that is as much assistance
as I can be to the Court as to the value of
Kanfouche in these present proceedings.
Your Honours, the question arises as to
whether Your Honours wish me to go further than
| Beljajev(2) | 49 | 4/6/91 |
those questions that were originally put to my
learned friend.
| MASON CJ: | No, not at this stage, Mr James. |
| MR JAMES: | May it please the Court. |
| MASON CJ: | Mr Bongiorno. |
| MR BONGIORNO: | If the Court pleases, in light of the way the |
argument has gone, the very small contribution that
I intended to make to this case may be even
smaller. The carriage of this prosecution has been, at all stages, with the Commonwealth
Director, and all matters relating to the substance, as it were, of this matter before this
Court, we leave to him and adopt the arguments
which have been put and will be put by Mr James.
The only matter upon which we sought to
address the Court is the question of the
applicability of the constitutional prerogative
writs to the Director of Public Prosecutions,
Victoria, and as I have indicated, that is somewhat
to one or other flank of this argument in light of
the way it has gone, but the point I propose to
make is a very short one and I think I can do it
probably before lunch and leave the matter there
without troubling the Court any further.
MASON CJ: Well, what is the point?
| MR BONGIORNO: | The point simply is that the prerogative |
writs which are sought by the applicant do not run
to the OPP Victoria.
MASON CJ: Yes, but that lies somewhat outside the present
parameters of the matter that we are exploring.
MR BONGIORNO: It does, Your Honour, yes.
| MASON CJ: | And what has been suggested thus far is that this |
question of jurisdiction of Mr Justice Marks, and
for that matter, jurisdiction in the Full Court to
entertain an appeal from Mr Justice Marks, can be
dealt with as a matter of statutory construction of
the Bail Act, and of the Supreme Court Act, and
that it may be possible to deal with that on the
special leave application apart from the
prerogative writ application. What has been put is that the special leave application and a subsequent
appeal if need be would be an appropriate vehicle
for the determination of that question and there
has been raised the possibility of adjourning the
proceedings to enable an application to be made to
the Full Court with a view to the Full Court
| Beljajev(2) | 50 | 4/6/91 |
determining whether it has jurisdiction by way of
appeal.
MR BONGIORNO: If the Court pleases, we support that
contention put by Mr James that that would be an
appropriate way for this Court to deal with the
matter. It is central to our contention that the
prerogative writ does not run to the DPP Victoria,
that the only relief which the applicant could
obtain in this Court is a grant of special leave to
appeal with whatever consequence flows from that.
Now, as Mr Justice Dawson put to, I think,
Mr James or Mr Castan in argument, we support
Mr James' contention that the applicant in any
event has a right of appeal to the Full Court at
present, given the proper construction of
section 14 of the Supreme Court Act and the effectof Mr Justice Marks' order, regardless of whether
it is made with or without jurisdiction, we would
say. And we have nothing further to add to that
proposition other than has been put by Mr James.
| MASON CJ: | I take it, Mr Bongiorno, because you support the taking of that course you would raise no objection |
| Supreme Court of Victoria? | |
| MR BONGIORNO: | No, we would not, Your Honour. |
MASON CJ: Just as Mr James would take no objection on that
score.
| MR BONGIORNO: | No, that is certainly so. | And there is |
nothing that I wish to put independently to the
arguments that Mr James put on any of the matters
going to special leave. As I say, the Victorian DPP has taken the view that this is really a matter
in which the Commonwealth OPP has been conducting
the litigation right from the committal onwards,
and we do not wish to interfere other than to assist at this stage in so far as we can.
| MASON CJ: | No, but one would have a sneaking suspicion that |
the Director of Public Prosecutions in Victoria
would have an acute interest in the appellate
jurisdiction of the Supreme Court of Victoria.
| MR BONGIORNO: | Very much so, Your Honour. | No question such |
as that which Your Honour has directed would stand
in the way of the course suggested in argument by
one of Your Honour's brothers to Mr James.
TOOHEY J: Could I just you this, Mr Bongiorno. Between the
introduction of the Bail Act, or the passing of the
Bail Act in the introduction of section 18A, what
| Beljajev(2) | 51 | 4/6/91 |
was thought to be the position in regard to any
application or appeal by the Crown against a grant
of bail?
| MR BONGIORNO: | As I understand the situation, Your Honour, |
apart from an application to revoke bail on changed
circumstances it was thought there was no right of
appeal; in other words, of review of the original
bail decision by the Crown - or the Director andprior to the institution of that office, the Crown.
| McHUGH J: | What about the situation where a magistrate has |
granted bail? What was the view as to the right of
the Crown to go to a supreme court judge to havethe grant of bail by the magistrate set aside?
| MR BONGIORNO: | I am not in a position to frankly answer that |
question, Your Honour. I do not know is the short answer. I could perhaps take some instructions on it over lunch from those more familiar with the
situation back in the days before section 18A but I
do not know the answer to the question. I would think there is nothing further that I can usefully
put.
My instructing solicitor has handed me the
second reading speech on section 18A which does
deal with - Mr Haddon-Storey, who was the Attorney- respect of the amendment to the Bail Act and in the course of that said:
Whilst there exists in the Bail Act provisions
whereby a court which has granted bail may
review its own decision empowering a member of
the police force to arrest a person who is on
bail and is apparently about to abscond, there
exists no general right of appeal in the Crown
or a law officer if bail is fixed in
circumstances which warrant review.
Bearing in mind that bail may be fixed by a
justice of the peace or by a senior police officer, there have been instances where persons have been bailed late at night in
circumstances in which the person granting
bail has been provided with inadequateinformation upon which to make a proper
assessment of the application. In such cases,there exists a clear need for a right of appeal against the fixing of bail.
That would seem to answer Your Honour's question,
with respect. There is nothing further then that I wish to put to the Court dealing with the aspect of the matter that is being argued, if the Court
pleases.
| Beljajev(2) | 52 | 4/6/91 |
| MASON CJ: Mr Castan. |
MR CASTAN: | We submit that what is revealed by Kanfouche's case is that the Full Court of the Supreme Court of | |
| Victoria seems to be determined to find that there | ||
| is no appeal from a judge dealing with section 18A | ||
| matters in virtually any circumstances, though Their Honours were, of course, dealing with a | ||
| particular case where the appeal was an appeal from | ||
| a judge who had granted bail. They expressed | ||
| themselves in - they first of all, in relation to the question of the county court appeal, purport to express no view at page 13, but then at page 18 | ||
| expressed themselves in very general language which appears to take, what we would respectfully submit, | ||
| ||
| that Their Honours appear to have gone wrong, if I | ||
| may say so, with utmost respect, in relation to | ||
| that, by expressing themselves in the wide language that appears at page 18 until we have ignored what is there put, and then at page 19, appear to have | ||
| taken the view that, somehow, as they put it, | ||
| section 18A is to: |
properly described as an appellate code.
Now, if it is to be an appellate Code, and it is an
appellate Code that has the effect that
Their Honours say it has, then there is no appeal,
as we were contending for; that is to say, they
would be, in effect,saying that we have no right to
go beyond His Honour Mr Justice Marks, because it
is a Bail Act matter, and that poses the very
problem which led us to come here, and illustrates
that our concerns about a view that might be taken
there were perhaps well founded.
Now, in our respectful submission, no real
argument of substance has been put, nor is there
anything in this judgment that provides an answer
to what we say is the clear words of
section ll(l)(c) and we say that Your Honours
should deal with that, should grant leave, and should express Your Honours' view about it, and
should take control of the matter. There is a
clear right of appeal to the Full Court from a
county court and clearly, we would respectfully
submit, Your Honours should deal with the question
of this absence of jurisdiction on the part of
Mr Justice Marks.
MASON CJ: That is, grant leave and determine the appeal?
MR CASTAN: Grant leave and determine the appeal, we would
respectfully submit. We would respectfully submit that, looking at this judgment handed down this
morning, that leaving the matter open without clear
| Beljajev(2) | 53 | 4/6/91 |
direction from this Court and sending it back to
the Full Court is likely - I say this with the
utmost respect, but likely to lead to a further
result which is in error in law in one way or
another in dealing with the operation of
section 18A.
We say that Your Honours can give a clear direction on the construction point, that it is
convenient to dispose of the whole matter here,
that once determined - once the construction point
is determined - there is nothing further useful for
the Full Court to do. It is of course always open to the Director to go to the Full Court pursuant to
his power of appeal that is provided for, and time
runs against him but he has the right to apply for
leave. So, a proper appeal from His Honour
Judge Kelly can be launched by our friends after
this Court has, we would respectfully submit, set
the matter straight.
DEANE J: Except the argument against what you are putting
would be that if the prima facie view of ll(l)(c)
is to be held unacceptable, the judgment this
morning and what has been put against you would
seem to indicate that it is going to be on the
basis of a combination of considerations of
inherent jurisdiction and past history of the
criminal jurisdiction in Victoria. Now, that is an area where this Court can derive extraordinary
assistance from the decision of a Full Court of a
State. I simply raise it with you so you can dispose of it as best you can.
| MR CASTAN: | Yes. Well, we would respectfully submit |
that - - -
DEANE J: Can I just add to that - - -
| MR CASTAN: | I am sorry, Your Honour. |
| DEANE J: | No, I had finished, but can I just throw in the |
thought that in terms of whether the appeal lies to
the Full Court, you will of course start with the
assistance that those whose interests would be to
deny that such an appeal lies have openly
maintained for the sake of preventing this Court
from dealing with the ll(l)(c) question, that an
appeal does lie.
| MR CASTAN: | Yes, they have, though the court itself seems to |
impliedly, at least, in Kanfouche take the view
that it is not going to get itself into appeals on
bail matters, if I can put the matter at its very
broadest. That may be overstating it, but we wouldrespectfully submit it is not overstating it, that
that is the correct inference to be drawn from what
| Beljajev(2) | 4/6/91 |
has occurred here, that the court has gone a long
way to make that message very clear.
| BRENNAN J: But this is not a bail matter. | This is a |
jurisdiction matter, jurisdiction and bail, but it is a jurisdiction problem. It is not a bail problem.
| MR CASTAN: | Yes, well it is a matter, I suppose, |
Your Honour, of how one would characterize it. It
is true that it is a jurisdiction matter but it
arises out of the Bail Act.
In our respectful submission, the only other thing I wanted to put to Your Honours is that in
our submission Your Honours should form a view
about the operation of section ll(l)(c) and shoulddetermine it and the reason we put that is because
there are questions of matters affecting the
liberty of the subject which are also relevant and
time continues to run and will continue to run if
we go back to the Full Court for a very
considerable period, we might anticipate, given the
ordinary run of things and the Court is now seizedof the matter. In our respectful submission, the
Court should deal with it. We, as we submit it, are in a position where we have been granted bail
and had it denied by an exercise outside
jurisdiction.
DAWSON J: | When you say "seized of the matter", we are only seized of an application for special leave. |
| MR CASTAN: | Yes, Your Honour. |
DAWSON J: Well, that is hardly being very greatly seized of
the matter.
| MR CASTAN: | It is true, Your Honour, that Your Honours are seized only of the application for special leave | |
| ||
| statute. Our learned friends have put in their | ||
| submission, as we understand it, all that they seek | ||
| to put, it is not that there is lying behind this | ||
| ||
| understand it, our learned friends, certainly in their written submissions, have given Your Honours | ||
| the range of what they seek to say and, in our | ||
| respectful submission, there is a significant | ||
| consideration here. |
Since April this applicant has been back in
custody after some 10 days, I think it was, on bail
pursuant to the order of Mr Justice Kelly. He should, in our respectful submission, have been on
bail and preparing his defence all this time. He
| Beljajev(2) | 55 | 4/6/91 |
has not been able to prepare any part of his
defence during any part of this time, leaving asidequestions of liberty in the sense of the general
ability to be free. But the critical point that we
make that operated upon His Honour Judge Kelly, was
that he has not been able to prepare his defence and time is running and he does not get back the
time that runs. And that is the key to what this application is about and that, we respectfully
submit, Your Honour, should weigh heavily in
Your Honours minds in determining what is the
appropriate course.
We would respectfully submit, this matter
should be put back to the status quo as it should
now be, that is to say, a status quo in which he is
at liberty and busy preparing, using the facilities
that he has available to work on this particular
evidence that he wants to be at liberty to do, and
which he did during the eight odd days, or whatever
it was, that he was at liberty.
The trial is set down and one can anticipate
it will eventually come on. Different views are
taken about the significance of that. His Honour
Mr Justice Marks took the view that, well he could
listen to these tapes while the trial was running.
His Honour Judge Kelly took the view that that was
somewhat unrealistic, given the enormous task
involved. Now, we simply put that as a highly relevant consideration that should weigh with
Your Honours in determining which way this should
go, given, what we would respectfully submit, is
the very clear point that emerges. Those are all
the submissions we desire to make.
| MASON CJ: Thank you, Mr Castan. | Now, Mr Dane, do you wish |
to say anything before we adjourn?
| MR DANE: | No, we do not desire to add anything to the |
argument, but we do support the argument, both initially and in reply and there is the
administrative matters of enlargement of time and
the matters of order nisi, but I do not suppose
this Court desires an address on that.
| MASON CJ: | No. | Thank you. | And I take it that the |
interveners do not wish to address submissions to
the Court, having regard to the way in which the
argument has progressed. The Court will now adjourn until - oh yes, Mr Solicitor.
| MR BERKELEY: | I assume that the Court is only dealing with |
special leave at the moment and not the orders
nisi?
| Beljajev(2) | 56 | 4/6/91 |
| MASON CJ: Yes. |
MR JAMES: | Your Honours, there is one matter that my friend put at the close of his submissions, which was not put in-chief and admittedly it went to the question | |
| ||
| applicant was unable to prepare for his defence. | ||
| We would contend that that is because he has given | ||
| away the equipment that he had available to prepare | ||
| to Mr Pinhassovitch and to allow his wife to retain | ||
| the other equipment for her own use, as is set out | ||
| in the letter that his instructing solicitors | ||
| forwarded to us. In our submission, he is not | ||
| preparing for his own defence out of his own choice | ||
| rather than out of any disqualification or | ||
| inability. | ||
| MASON CJ: | Yes. | |
| MR CASTAN: | In our respectful submission, the position as |
put from my learned friend is not the position.
The fact is that the equipment that he seeks to use
is equipment which is being used by one of the
other defendants, Ms Szajntop, and he does not have
the use of it. There is some equipment that he could get back, but that will not suffice. The
reality is that he cannot, as we understand it, get
hold of the relevant equipment and he cannot use it
while he is in custody. That is the inherent
problem of the situation.
There is an affidavit that has been filed
today which sets out the current position so far as
the Governor is concerned. Perhaps I should just
mention briefly to Your Honours that the difficulty
that arises is that our learned friends are talking
about the access and the position that they are prepared to make available of what I might call
"their client". But there is the governor who has his control over what can and cannot be brought
bureaucratic situation as between the position of into a cell, so that we are caught in a the Director who has a view about what should and should not happen in relation to Mr Beljajev, the applicant, and there is the position of the Governor who has views about the administration of
his gaol, and they do not agree. The result is
that he cannot prepare. I do not think there is anything further I can add.
MASON CJ: Very well, the Court will adjourn to 2.15 pm, and
when I say we will adjourn to 2.15, I mean that
these matters will stand adjourned to 2.15 and the Court will consider in the meantime what course it
will take in relation to the matter.
AT 1.01 PM LUNCHEON ADJOURNMENT
| Beljajev(2) | 57 | 4/6/91 |
| UPON RESUMING AT 2.20 PM: |
MASON CJ: | The Court has come to the conclusion that these matters should stand adjourned to a date to be | |
| fixed to enable the applicants to seek to appeal to | ||
| the Full Court of the Supreme Court of Victoria | ||
| from the decision of Mr Justice Marks. | ||
| The Court expresses the hope that the applications can be presented and dealt with as | ||
| To that end, the matters listed today will stand adjourned to a date to be fixed and there will be liberty to apply to each party on seven days | ||
| ||
| have expressed is a majority conclusion of the | ||
| Court. | ||
| MR CASTAN: | Would Your Honours hear me on the question of a |
stay in relation to the order of His Honour
Justice Marks? It would be very short,
Your Honour.
MASON CJ: Very well.
| MR CASTAN: | Your Honours, the submission is very simple, it |
is that the matters have not been raised in a way
they have before this Court, It is respectfully
submitted that the position that should prevail, as
what one might call the status quo when the matter
comes before the Court, in the course of the
adjournment that Your Honours have announced, comes
before the Full Court, should be a situation in
which that court considers the matter upon the
basis that the applicant is on bail pursuant to the
order of Judge Kelly. And we put it that that is the appropriate course to take given the sequence
of events that has occurred. I cannot say anything more in relation to it for the reasons that have
been adumbrated in the course of argument and for the reason that it permits him to recommence
preparation of the defence.
MASON CJ: Yes, Mr James?
| MR JAMES: | May it please the Court. | We would oppose the |
application for the stay. An application was made to His Honour Mr Justice Brennan prior to the
matter coming before this Court. The considerations adverted to there, in our
submission, really have not changed. All the
considerations - - -
| Beljajev(2) | 58 | 4/6/91 |
BRENNAN J: That is not correct, I think, Mr James, that was
an application for bail pending the application for
special leave to appeal.
MR JAMES: Certainly, Your Honour, but in our submission, at
bottom, the matter is really the same in nature in
that what is sought is, in effect, to obtain the
conditional liberty called bail. All the
considerations considered by this Court in
Chamberlain in relation to the obtaining of a stay
or the grant of bail pending the decision, still is
alive as they otherwise would have been.
At bottom it is our submission that there are
no exceptional circumstances and there is a
statutory prohibition on bail. Whether with
jurisdiction or not, Mr Justice Marks has upheld
that contention on the matter of substance, and in
our submission this Court should not, in these
circumstances, grant a stay which might have the
effect of producing, as it were, an overruling of
that decision of substance. This is the
submissions we would make on the stay application.
MR CASTAN: Perhaps I should just say, by way of response,
that Chamberlain, of course, was a case dealing
with an application for bail pending appeal.
| MASON CJ: | The Court is of opinion that it would not be |
appropriate to grant a stay in the circumstances of
the case. The application for a stay is therefore refused.
AT 2.26 PM THE MATTER WAS ADJOURNED SINE DIE
| Beljajev(2) | 59 | 4/6/91 |
Key Legal Topics
Areas of Law
-
Criminal Law
-
Administrative Law
-
Constitutional Law
Legal Concepts
-
Charge
-
Jurisdiction
-
Judicial Review
-
Procedural Fairness
-
Standing
-
Abuse of Process
0
0
0