Reg v Elliott & Ors- Reg v Woods

[1996] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M42 of 1996

B e t w e e n -

THE QUEEN

Applicant

and

JOHN DORMAN ELLIOTT

First Respondent

PETER DAMIAN SCANLON

Second Respondent

KENNETH ROBERT BIGGINS

Third Respondent

PETER ROBERT CAMM

Fourth Respondent

Office of the Registry
  Melbourne  No M43 of 1996

B e t w e e n -

THE QUEEN

Applicant

and

MICHAEL DAVID EUGENE WOODS

First Respondent

VICTOR GEORGE PSALTIS

Second Respondent

Applications for special leave to appeal

BRENNAN CJ
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 JUNE 1996, AT 11.09 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR W.B. ZICHY-WOINARSKI, QC and MR S.J. ODGERS for the applicant in each matter.  (instructed by the Solicitor for Public Prosecutions Victoria)

MR R. RICHTER, QC:   I appear with my learned friend, MR J.D. HAMMOND,  for Mr Elliott, the first respondent.  (instructed by Barker Gosling)

MR J.C. WALKER, QC:   If the Court pleases, I appear with my learned friend, MR J.G. JUDD, on behalf of the second respondent.  (instructed by Arnold Block Leibler)

MR R.A. FINKELSTEIN, QC:   May it please the Court, with MR D. O’DOHERTY I appear for the third respondent.  (instructed by Phillips Fox)

MR N.J. CLELLAND:   If the Court pleases, I appear on behalf of the fourth respondent.  (instructed by Coadys)

MR T.M. FORREST:   If the Court pleases, I appear on behalf of the first-named respondent in matter No M43.  (instructed by Galbally & O’Bryan)

MR M.T. RUSH:   May it please the Court, I appear on behalf of the second-named respondent in that matter.  (instructed by Newbury Bell)

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friend, MR A. SOUTHALL, for the National Crime Authority seeking leave to intervene in the interests of the applicant.  (instructed by the National Crime Authority)

BRENNAN CJ:   Mr Jackson, is there any reason why we should not first hear the application for leave to intervene?

MR JACKSON:   No, your Honour.

BRENNAN CJ:   Perhaps I could inquire first, on your part, have you anything to say about the application for leave to intervene?

MR JACKSON:   No, your Honour, we support the application.

BRENNAN CJ:   Thank you.

MR JACKSON: Your Honour, I should mention one matter, and it is this that your Honours will have seen in the summaries of argument for the respondents that an issue has been raised about whether the Court has jurisdiction, namely whether the rulings from which we seek leave to appeal fall within section 73 of the Constitution. I should say immediately that point was raised section 78B notices were sent. That was last Friday. There have been responses and the result is, your Honours, that - there has not yet been a reply from Tasmania or South Australia and Victoria, Victoria in the sense that the Attorney-General for Victoria has not yet responded, and the Australian Capital Territory, but the other recipients of them do not seek to say anything on this application.

BRENNAN CJ:   Yes, thank you.  Mr Richter, do you have anything to say with regard to the application for leave to intervene?

MR RICHTER:   We would oppose it, your Honour.

BRENNAN CJ:   Thank you.  Mr Walker?

MR WALKER:   We do oppose it, your Honour.

BRENNAN CJ:   Mr Finkelstein?

MR FINKELSTEIN:   We oppose it, your Honour.

BRENNAN CJ:   Mr Clelland?

MR CLELLAND:   We oppose it, your Honour.

BRENNAN CJ:   Mr Forrest?

MR FORREST:   We oppose it, your Honour.

BRENNAN CJ:   Mr Rush?

MR RUSH:   We oppose it, your Honour.

BRENNAN CJ:   Mr Bennett, before you commence, the Court is concerned, of course, about the operation of section 78B in the light of the fact that there are some responses from Attorneys-General which have not yet been received, but unless any party has an objection, we may commence and proceed to hear the argument concerning this matter to the extent to which it is severable from any matter arising under the Constitution pursuant to section 78B(2)(c) of the Judiciary Act.  Now, it seems to us that

it would be possible to consider this case irrespective of the section 73 point in so far as there is an argument against the grant of special leave. In other words, if this were a case where it was thought appropriate at the end of the day to grant special leave, then it may be necessary to delay any further consideration of the matter until the 78B notices have been fully responded to. If, however, it was a case where special leave should be refused, then the refusal of special leave would not necessarily involve any consideration of section 73 of the Constitution.

Now, submissions are invited from the Bar table as to whether or not that course is appropriate from the point of view of counsel and the arguments they seek to adduce.  Do you, Mr Bennett, have anything to say before you leave the ‑ ‑ ‑

MR BENNETT:   We would support that course, your Honour.

BRENNAN CJ:   Mr Jackson?

MR JACKSON:   We have no difficulty with that course, your Honours.

MR RICHTER:   We support that course, your Honours.

MR WALKER:   Yes, your Honour.

MR FINKELSTEIN:   Yes, your Honour.

MR CLELLAND:   Yes, your Honour.

MR FORREST:   That course is suitable, your Honour.

MR RUSH:   Yes, your Honour.

MR BENNETT:   Your Honours, there are two matters:  the question of the test for the grant for leave to intervene and the general question of discretion and the reason why it should be granted.  On the first, we would submit that clearly this case involves rights and powers of the National Crime Authority.  Indeed, that is at the very root of two of the three issues in the case.  It goes to its actual powers, the powers it exercises, and it is clearly within the test of Australian Railways Union and Reg v Ludeke.

So far as discretion is concerned, the reason why we need to intervene at this stage and would seek that leave is this, that there are three issues.  There is one issue of general concern to the criminal law which is the issue as to whether, if one has a statutory interrogation where the procedures are not properly followed, thus making it an invalid exercise of power, without more are the answers involuntary for the purpose of not being used in criminal proceedings or does one apply a Bunning v Cross type test?  That is the broad general question in which, of course, the applicant has a very substantial interest and will no doubt put with due diligence.

The other two issues are issues which concern the National Crime Authority and its powers.  If we were not here, if we were not intervening, it is possible that the Court would say to my learned friend, Mr Jackson, why should we not grant leave on that first issue and no others?  And it might, for various reasons, seem appropriate to his client not to prejudice the grant of special leave by accepting that.  Whereas from our point of view, the issues which are of great general importance to us would thus not come before the Court.  We would wish to contend that those issues concerning our powers and the construction of our Act are important matters in their own right and that if leave is granted, it should be granted on those two matters as well.  For those reasons we seek leave to intervene.

BRENNAN CJ:   Why should the National Crime Authority be heard in proceedings of this kind as distinct from proceedings where the challenge is made to the powers of the National Crime Authority by some person who is summoned to be a witness or against whom compulsory powers are sought to be exercised?

MR BENNETT:   Because, your Honour, the effect of the determination in these proceedings is, first of all, perhaps to undo the effects of an investigation we have conducted, but more importantly, because the judgment is likely to be applied in other cases and we may not get the opportunity unless we take the risk of acting, in the face of this judgment, of having those issues tested.

KIRBY J:   But here we have the assistance of the Crown on these matters.   Would there not be a principle that one would be very loath, very cautious, to allow intervention in what is, in effect, an interlocutory proceeding in a criminal trial.  I mean you, as another emanation of the Crown, are seeking to intervene in a proceeding which affects accused persons who are going to stand trial.  That would seem to be a very real reason for us not to allow you to do that but to, if you want to, offer your helpful notes to Mr Jackson and let them come before the Court that way.

MR BENNETT:   There are two matters, your Honour.  The first is while we may be another emanation of the Crown, we are an emanation of the Crown in a different right because I, of course, am an emanation of the

Crown in right of the Commonwealth; my learned friend is an emanation of the crown in the right of Victoria.

Secondly, we do have a different interest, as I have indicated, in this case because there are three points and it may well suit the interests represented by my learned friend, Mr Jackson, to press, if asked to do so, only the third of those points ‑ ‑ ‑

KIRBY J:   You have not addressed my chief concern, which is that this is a criminal proceeding and you are seeking to intervene in a criminal proceeding.  It would be most unusual ‑ ‑ ‑

MR BENNETT:   Your Honour, a criminal proceeding in which the accused have successfully had evidence rejected on the basis of invalidity of our processes which led to that evidence being obtained.  It is a matter where there is a very direct and tangible connection to the construction of our legislation and the source of our powers.  Your Honours, we would submit that importance of that issue is such that it justifies what would otherwise be an unusual step.  Those are our submissions.

BRENNAN CJ:   Thank you.  Mr Jackson, have you anything to say in support of the application?

MR JACKSON:   No, your Honour, I adopt what was said by my learned friend, Mr Bennett.

BRENNAN CJ:   We do not need to hear other counsel.  Although the questions which Mr Bennett seeks to raise, if leave to intervene were given in these proceedings, are no doubt of importance generally and of particular importance, of course, to the National Crime Authority to the administration of the Act and to its construction, nonetheless this is an application for special leave to appeal in proceedings in a criminal trial and it would be highly inappropriate to grant leave to intervene in such an application.  Accordingly, leave to intervene will be refused.

Yes, Mr Jackson.

MR JACKSON: Your Honours, may I move immediately, in the light of what your Honour said about the section 73 argument, to the respects in which we contend that the trial judge was in error. They are in two important respects. One was the voluntariness issue, if I could call it shortly that, namely in taking the view that when legislation permits compulsory questioning if certain conditions are met, if those conditions then are not met so that the questioning is unlawful, any answers given are automatically involuntary and inadmissible.

The second question was in relation to the National Crime Authority Act 1984, namely in holding that the questioning at the hearings conducted by the body was unlawful because, in considering whether there was a nexus between the matter of the special investigation referred to it and the subject of the hearing, the Authority had misconceived the scope of the matter, his Honour holding in that regard that the ambit of the matter was to be found in communications preceding the notice of reference to it rather than in the notice itself.

Your Honours, the course I propose to adopt in these submissions is to deal very briefly with those two matters and, having done so, then seek to urge upon the Court that the Court should take the course, unusual in criminal cases of course, of entertaining an appeal at this point in the case.

BRENNAN CJ:   Mr Jackson, having regard to the nature of the issues which you seek to raise and the number of respondents that there are in these proceedings, you may take half an hour.

MR JACKSON:   Thank you, your Honour.  May I go first to the aspect which I mentioned second, namely that arising under the National Crime Authority Act. Could I take your Honours first to section 13(1) of that Act. What your Honours will see is that section 13(1) empowers the Minister:

after consulting the Inter-Governmental Committee, by notice in writing to the Authority, refer a matter relating to a relevant criminal activity to the Authority for investigation in so far as -

and your Honours will see the remaining words.  Subsection (2) of section 13 says that the notice referring the matter is to comply with a number of requirements which your Honours will there see set out, and refer in particular to paragraph (a).

Now, your Honours, the terms of section 13(1), in our submission, make it quite apparent that the matter referred to the Authority, whatever might have been other matters in contemplation, is the matter which is the subject of the notice because, as your Honours will see, it says the Minister will refer a matter and the Minister does it by notice in writing to the Authority. So what is referred is the matter the subject of the notice. Your Honours, if something is not in the notice, it has not been referred. That is supported by the words of section 28(2) of the Act. May I take your Honours to that. Section 28 is speaking of summoning -

a person to appear before the Authority at a hearing to give evidence ‑

and so on.  What your Honours will see from subsection (2) is that:

A summons.....shall be accompanied by a copy of the notice, or of each of the notices, by which the matter or matters to which the hearing relates was or were referred to the Authority under section 13.

Might I pause to say the hearings to which reference is made there are those set out in section 25.

It is manifest, if I may say so with respect, that if one looks at the terms of section 13(1) and section 28(2) that for there to be a matter referred to the Authority it must be the matter that is referred in the notice. It may be some other larger matter was in contemplation, but if the ambit of the larger matter is not within the ambit of the notice, then what has been referred is what is in the notice.

Your Honours, could I say two further things.  The first is that the notices were treated as valid before the trial judge.  Your Honours will see that at page 81 lines 9 to 15.  The second thing, your Honours, is this, that the present issue, namely that one looks at the terms of the notice, was argued before the trial judge and the issue was argued - there were other issues argued of course - but this was one of the alternative bases put to him.  That that is so appears - and I dwell on this for just a moment because the contrary is asserted in some of the submissions on the other side - your Honour will see it at page 99 at the bottom of the page in a passage which goes from line 29 on page 99 through to page 100 about line 20.  The way in which his Honour puts it is that he is there speaking in effect to the argument rather than actually recording it, but your Honours will see, for example, in lines 18, 19 and 20 on page 100 that it is apparent that his Honour regards the argument as having been put to him.  He says:

The problem with this argument is that it treats the Notices of Reference as definitive of the matter referred to the Authority for investigation.

Could I also say, your Honours, that one sees the argument put specifically in the written submissions that were given to his Honour and they are attached to the third respondent’s summary of argument and your Honours will see paragraphs 14 and 15 of that document, page 5 - when I say “that document”, I am referring to the annexure to it - and if it is not made clear by paragraph 14, paragraph 15 says:

Further, or alternatively, that investigation was within the terms of the Notice of reference, and the submissions already made are equally applicable.

BRENNAN CJ:   I am sorry, I have not found that, Mr Jackson.  The third respondent’s summary of argument?

MR JACKSON:   Third respondent’s summary of argument.  Attached to that is the document which is headed “Submission as to voluntary on behalf of the Crown”.  It follows page 9.

BRENNAN CJ:   It has become detached.

MR JACKSON:   I had referred to page 5 of it, paragraphs 14 and 15.  So could I say, without seeking to take your Honours to passages of the transcript of the oral argument before the trial judge, your Honours will see that it is referred to in the written submissions and his Honour deals with the argument.

Your Honours, could I say if one goes back to page 100 of the application book it is apparent from page 100, lines 6 to 20, that his Honour had determined what was the relevant matter by looking at antecedent communications.  I intend to give your Honours two references:  the first is the one which I gave a moment ago, page 100, lines 6 to 20, and your Honour will see at lines 6, 7, 8 and 9 a reference to the “Harlin takeover” and also “the matter behind the Notices”.  Then after the next quotation, lines 18, 19 and 20 to which I had earlier referred, your Honours will see his Honour treats the argument as not good because it treats the notices of reference as definitive.  The point I am seeking to make about it is, and I will take your Honour to another reference in a moment, that what his Honour seems to have done is to treat the events that led to the issue of the notices of reference as being narrower than the subject matter of the notice of reference itself, and then having done that, regards the subject behind the - what he regarded as the subject behind the notice of references as being the matter that had been referred.

Your Honours, I was going to give your Honours another reference.  Page 53 line 29 ‑ ‑ ‑

BRENNAN CJ:   Mr Jackson, this all sounds as though it turns very much on the circumstances of the individual case though, does it not, when you put it that way?

MR JACKSON: Could I just say in relation to that that I have just been trying to indicate how one gets to the point of unlawfulness and it is really that the case does have two points. Point one is the question of what is the ambit of the matter for the purpose of section 13(1), which then applies, of course, to the other procedures under the National Crime Authority Act.  But if it be that that itself is something that your Honours would regard as being purely a matter applicable to the particular case, it still is a relevant matter in leading one to the question of the appropriate course to be taken in relation to voluntariness.   By that I mean that ultimately his Honour applied a test of unlawfulness, meaning or having the result of involuntariness.  What I am seeking to do, your Honours, is to do two things:  first, to demonstrate the nature of the issue in relation to matter to indicate that itself is a matter of some importance; the second thing is to say, this is the way in which one gets the voluntariness point and it is really, although it has taken me a few minutes to say it, quite a very simply question.

BRENNAN CJ:   It is only if you fail on that first aspect that you get to the voluntariness point, is it not?  In other words, if the trial judge was wrong in saying that the hearing was in excess of power because he misconstrued the scope of the matter that had been referred, then no question of voluntariness arises.

MR JACKSON:   Indeed, your Honour.  But, your Honour, I accept that.  That is why I say that the first point is itself a matter of importance and the reasons are ones to which I will come in just a moment.  But there are the two matters.  But, your Honour is quite right; if we fail on that, there is yet the equally important question of voluntariness.

I will only take a moment more with this aspect of it.  His Honour appears to have held that because the Authority had what he described as a confused understanding of the matter - that is the matter as worked out by his Honour - they failed to address crucial questions essential for lawfulness.  Your Honours will see that at page 95 line 26 through to page 96 line 6, the crucial question being whether the hearings were within the matter properly understood in the way in which his Honour decided that the matter was to be understood.

His Honour appears to have accepted that the Authority believed that the hearings were related to the matter referred to in the notices but not to the matter as defined by his Honour.  Could I give your Honours three references in that regard and I do not think I need to go to the passages:  page 81 lines 2 to 8; page 89 line 17 to page 90 line 5 in relation to Mr Lorkin; and page 95 lines 8 to 25 in relation to Mr Leckie.  If the matter is to be as found in the notice, then the hearings were lawful.  That appears to have been accepted by the trial judge at page 81 lines 5 to 7.  The words of the relevant notice of reference are set out at page 8 and in relation to paragraph (a) was expressed in very wide words indeed.  We have endeavoured in paragraph 20 of our outline of submissions to indicate in relation to particular matters how it was relevant.

Now, your Honours, the trial judge of course adopted a considerably narrower formulation of the matter which your Honours will see in three passages:  page 54 lines 20 to 22; page 79 line 31 to line 2 on page 80; and then a passage to which I have earlier taken your Honours, page 100 lines 6 to 9.  That view led the trial judge to the issue of voluntariness and in the first place his Honour appears to have accepted that in the absence of unlawfulness, the answers would have been voluntarily given.  That that is so appears in a passage at page 24 line 19 through to page 25 line 23.  I shall not read out the passage.  May I direct your Honours in particular to the conclusion at page 25 lines 9 to 12.  That led the trial judge - I am speaking of the course of his reasons for just a moment - then to decisions to the effect that answers compelled by law are not, by reason of the fact that they are compelled by law, inadmissible.  Your Honours will see those decisions referred to at page 29.  There is nothing really new in that but his Honour then went on, however, to derive from that a somewhat different proposition.  That proposition is the one which he sets out at page 30 lines 2 to 6 where what he says is that it leads to the view:

that the admissibility of statements made under compulsion.....is dependent upon the lawfulness -

Now, your Honours, it is one thing to say that statements made under compulsion of law are not rendered inadmissible by virtue of the fact that they have been made under compulsion of law.  The obverse as his Honour puts it is not necessarily true.  I should say one further thing before going on.  His Honour then held at page 33 lines 23 to 26 that:

It follows that when Parliament identifies the conditions which must be satisfied before a compulsory process of questioning can occur, it also intends that those conditions must be complied with strictly.

But the conclusion that his Honour drew from that proposition was that the evidence was thereby rendered inadmissible.

KIRBY J:   I think you have already laid, really, the ground for showing us the nature of the issue and its significance for the Crown and for this trial, but I hope there will be enough time in the time that is allotted for you to deal with what seemed to me to be the important problems that are presented by the scheme of the Victorian legislation, the fact that even if we thought that this was an interesting and important issue, and leaving aside the constitutional question, the scheme is that you can try to re‑agitate it before the trial judge or seek by evidence to provide a new foundation but the scheme seems to be to put you out of court on an appellate process.  That is the thing that is worrying me.

MR JACKSON:   Your Honour, may I come to that in just one moment because I do intend to mention that.  I just wanted to say in relation to voluntariness, if one goes to what is a statement by your Honour the Chief Justice when a member of the Federal Court as a statement of the principles applicable in relation to the question of voluntariness in Collins v The Queen (1980) 31 ALR 257. At page 307, the passage commences at about line 23 and goes through to line 44, and could I refer particularly to the lines 30 to 37, but the passage does go through to about line 44.

BRENNAN CJ:   But is not the logical sequence of propositions about voluntariness this:  if you start off with the notion there has to be free choice to speak, here there was no free choice to speak because there was compulsion; therefore prima facie involuntary; nonetheless legitimate power to acquire the answers; therefore, unless there is some other provision in the Act, answers obtained pursuant to a legal process are admissible.  Is that not the logical steps that are taken in the cases?

KIRBY J:   Subject to the Bunning v Cross exclusion.

BRENNAN CJ:   Leave aside that for the moment.  I am thinking in terms of voluntariness because the Bunning v Cross exclusion itself may be dictated - or the answer to it may be dictated by the legislative intention as to the requirement to answer.

MR JACKSON:   Yes, I am not sure that I would disagree with what your Honour put to me so far.

BRENNAN CJ:   Now that then raises two questions, does it not, and that is if there be no power, not only of purported power, we have stopped at the second stage, namely a purported compulsion to answer without legislative support.  The second is what does one say when there is an exception provided in the Act which allows a witness to refuse to answer on the grounds that the answer may tend to incriminate?

MR JACKSON:   May I say in relation to the first of those matters that the position which obtains then is rather akin to what your Honour said in the passage in Collins to which I just referred, and that is that the circumstances in which the statement was made by the witness, there being purported power but absence of power in fact, one has to look to see whether so far as that witness was concerned the statement made was one which was made voluntarily.  Now, your Honours, that of course involves some preconception as to the meaning of the term “voluntary”.  But the question is, in the end, is it made in the exercise of that person’s choice to do it or not to do it?  It would be perfectly possible, of course, in circumstances like that, for the evidence of one witness to be held not to have been voluntary and for another to have been held to be voluntary.  And, indeed, there might in the particular case even be shades of voluntariness involved, because one of the accused was a person who said he went along and was happy to tell his story, or words to that effect.

BRENNAN CJ:   I see the force of the argument, Mr Jackson.  I must say that it seems to me to run into some difficulties when one considers cases such as Reg v Coote (1873) LR IV PC 599, but I see the force of what you are putting just the same.  In other words, it is a question of fact, voluntariness?

MR JACKSON:   Yes, and it simply is not an issue that is resolved by saying it was unlawful, ergo it is involuntary.

BRENNAN CJ:   Yes.

MR JACKSON:   Now, your Honours, one sees it - we have mentioned this in our outline of submissions - in Director of Public Prosecutions v Harz in the United Kingdom.  The questioning was unlawful but the admissibility of it turned ultimately on whether the answer was voluntarily given.  That, in our submission, is an appropriate rule for the Court to adopt as being the rule in Australia.  In that regard, may I say that if one goes to our summary of argument at paragraph 26 your Honours will see a reference there to Collins but, in the last quarter of the page and the top of the next page the various subparagraphs set out the factors which would militate against the notion that the statements were in fact involuntary.  I do not want to dwell on those but I simply mention them because they support the view that the issue is one of relevance in the particular case.

BRENNAN CJ:   Now, that seems to me to raise precisely the point that Justice Kirby raised with you. In other words, if this trial were to proceed on the footing of this ruling, evidence were excluded and the accused were acquitted, the issue of law itself could be raised under section - what is it, 450A, is it not, of the Victorian Crimes Act - Mellifont provision?

MR JACKSON:   Yes.  Different to the Mellifont provision in the sense that the Mellifont provision allowed there to be a reference to the Court of Criminal Appeal, as it was then, after a nolle prosequi.  That is what happened in that case.

BRENNAN CJ:   Yes.  If, on the other hand, this special leave were to be granted, it would then be followed by appeal and a considerable delay obviously would be involved in the prosecution of the criminal trial and that pursuant to a provision of the Victorian Act which altered the criminal procedure of Victoria by taking rulings of this kind out of the ordinary course of the trial and placing them in the procedure prior to impanelling of the jury and, I should add, eliminating prospects of appeal to the Victorian Court of Criminal Appeal.  Now, does that not indicate a legislative intention that the Crown should have to bear the consequences of erroneous rulings, leaving the Crown to its relief by way of a reference after acquittal?

MR JACKSON:   There are a number of things in what your Honour has put to me.

BRENNAN CJ:   A number of things.  Those are the issues ‑ ‑ ‑

MR JACKSON:   I understand that, your Honour.  I hope I do not forget any of them in trying to answer them.  May I say first of all that the purpose of denying the Crown a right of appeal primarily, one would think, is not really to facilitate acquittals based on erroneous rulings of law but rather to avoid the notion of double jeopardy.  That is a notion which is largely still apposite throughout Australia but, of course, double jeopardy rule, as
Davern v Messel I think says, is one that applies when there has been a hearing in effect on the merits, whatever be the result of it.  That is the first thing.

The second thing is, of course, that it is undoubtedly true that if one looks at the State legislation, what you see is a position where the State has chosen, perhaps by action, perhaps in some cases by choosing not to act, but the State has a legislative system which does not permit there to be appeals to the courts of the State. However, what one also sees, your Honours, is that the State is not entirely master of its own household in that regard because one then has the provisions of section 73 of the Constitution. Without getting into the question of interpretation of it, one of the things that is provided for by the Constitution is that whatever a State says about its laws, there will always be the opportunity of a decision of a court of a State - and I do not mean a relevant court, of course - being one that is capable of review by this Court. Now, your Honours, of course that is subject to the limitations imposed, special leave and such other limitations as might be imposed, and special leave carries with it the discretion of the Court to grant or refuse special leave and no doubt the legislative policy of the State in that regard is a matter to which respect would be given, but it cannot in the end be something that overrides the terms of section 73 and the powers of the Court.

KIRBY J: I understand that argument to be that if you are in the realm of the Victorian legislation, you concede that it is the end of the line and that is the purpose of the Victorian Parliament, but that your way into this Court is by say of section 73 of the Constitution. You do not want to argue the meaning of that section but it is difficult to see how that can be avoided.

MR JACKSON: Could I say just these things, and I am still endeavouring to deal with what your Honour the Chief Justice put to me. I am assuming, your Honour, for the moment, as the Chief Justice asked at the commencement, that our application is one to which section 73 would apply. Section 73 carries with it an important constitutional value, if I can use that expression, namely that the courts of the States should not be immunised from possible review by this Court. Now, of course, the Parliament of the Commonwealth can, as it has, reduced the number of occasions upon which that may happen and committed to the Court the discretion to allow - that has always been the case with criminal cases - but the possibility is there and it becomes a question for this Court to determine whether it should or should not take the case to itself in the particular case. And that would be so even if one took - take a simpler example - took civil cases and if a State said, “There is no appeal from a decision of a judge of the Supreme Court on granting an interlocutory injunction”, for example, at the same time this Court could entertain such an appeal.

So, your Honours, that is what I would seek to say in relation to that aspect of the case.  In relation to the question whether the discretion should be exercised or not, may I say that the voluntariness point is one of considerable importance, in our submission.  That is the first thing.  The second thing is that your Honours will see in our written submissions that we have endeavoured to set out, at the conclusion of them, the relative importance of the matter which your Honours will see set out in paragraph 28. 

May I just say one more thing and it is this, that there was something said about the structure of the trial. The position, of course, under section 391A of the Crimes Act 1958 in Victoria is that no jury has been impanelled, there are questions which are heard and determined, and they are heard and determined before the jury is impanelled and, your Honours, the object of that is to avoid the delays which, once criminal trials became longer, the time when jurors were sitting on their hands doing nothing became really, in a sense, a public scandal and provisions of this kind were provisions introduced so that the trial could go on, issues be determined, but the jury not be impanelled. It is that aspect of the case which really provides the underlying reason for the existence of this type of procedure.

Your Honours, I might say the argument on these other issues has been going on for months.

KIRBY J:   That is one of the matters the respondents complain of.  They say this will delay their trial.

MR JACKSON:   Without seeking to get into an allocation of blame exercise, we had offered that this issue could have been determined last year.  I do not wish to go beyond that.

KIRBY J:   I did not put the point on the point of blame, but they just say that their lives are disrupted, the whole thing is spinning out and that this will delay the matter even further.

MR JACKSON:   I regret to say if.....the case were to go ahead, it is a big case.

BRENNAN CJ:   Thank you, Mr Jackson.  The Court will adjourn in order to consider what course it will take.  The Court may be some little time before being able to indicate that.

AT 11.59 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.53 PM

BRENNAN CJ:   The Court need not trouble counsel for the respondents.

The applicant seeks special leave to appeal from a ruling by Vincent J in the Supreme Court of Victoria before the impanelling of the jury in a criminal trial. This procedure is provided for by section 391A of the Crimes Act 1958 (Vic) which reads:

Where an accused person is arraigned on indictment or presentment before the Supreme Court or the County Court the Court before which the arraignment takes place, if the Court thinks fit, may before the impanelling of a jury for the trial hear and determine any question with respect to the trial of the accused person which the Court considers necessary to ensure that the trial will be conducted fairly and expeditiously and the hearing and determination of any such question shall be conducted and have the same effect and consequences in all respects as such a hearing and determination would have had before the enactment of this section if the hearing and determination had occurred after the jury had been impanelled.

The questions of law which the applicant seeks to raise are of considerable importance. They fall into two categories. The first relates to the powers of the National Crime Authority under sections 28 and 25 of the National Crime Authority Act 1984 (Cth). Section 28 authorises the Authority to issue a summons to a witness to attend before the Authority at a hearing to give evidence and to produce documents. Section 25 authorises the holding of hearings for the purposes of a special investigation. Section 30 compels a witness summoned to a hearing to be sworn, to answer questions and to produce documents. The learned trial judge held that the National Crime Authority had exceeded its powers in conducting so much of the hearings as obtained the evidence which the prosecution now seeks to tender against the respective respondents. That conclusion was reached in part by reference to terms of a reference by the Minister pursuant to section 13(1) of the National Crime Authority Act.  In so far as the conclusion depends on issues particular to the case, no point warranting a grant of special leave emerges.

In any event, the hearings by the Authority have been completed without any questions arising as to the scope of the powers available for exercise by the Authority in the case of any of the present respondents.  An appeal from interlocutory proceedings in a criminal trial is not the appropriate vehicle for canvassing the scope of the powers of the Authority at the time when it summoned the respective respondents and required them to answer questions at a hearing before it.

The second category of questions relates to the admissibility of evidence obtained by the National Crime Authority from a witness during a section 25 hearing when the witness is subsequently tried on an indictment charging him with a criminal offence. In the criminal proceedings against the respective respondents pending in the Supreme Court of Victoria, Vincent J has ruled that, as the matter into which the National Crime Authority was conducting a hearing when the relevant statements were made by the respective respondents did not empower the Authority to compel the giving of the evidence now sought to be tendered against them, that evidence was not given voluntarily. His Honour thus ruled that the evidence is not admissible on their trial. And that, despite the provisions of section 30(4) of the National Crime Authority Act which entitles a natural person to refuse to answer questions or to refuse to produce documents on the ground that the answer to the question or the production of the document might tend to incriminate that person.  Whether such ruling is correct in law   is an important question.  It raises the question whether a purported, but invalid, exercise of power to compel the giving of evidence necessitates the conclusion that any evidence given is involuntary and, for that or any other reason, inadmissible.  In an appropriate case, that question would warrant a grant of special leave. 

What now falls for consideration, therefore, is whether this case, in which a question of importance has arisen from a preliminary ruling in a criminal trial, is one in which that question should be determined on appeal to this Court, assuming that an appeal lies under section 73 of the Constitution.

The procedure prescribed by section 391A of the Crimes Act is a special procedure by which the court may make preliminary rulings so as not to delay criminal trials once the jury is impanelled. The utility of such a provision is manifest, but the Legislature has prescribed this special procedure upon terms that no appeal should lie from a preliminary ruling to the Victorian Court of Appeal: see section 14(3) of the Supreme Court Act 1986 (Vic). That is the court which has the ordinary jurisdiction to entertain appeals generally from the Supreme Court in the exercise of its primary criminal jurisdiction. As the joint judgment of this Court in Smith v The Queen (1994) 181 CLR 338 observes, at page 346:

“It would appear that s. 14(3) was intended to avoid the fragmentation of criminal trials by delays brought from rulings before or during the course of a trial, whilst allowing appeals where there was a conviction by a single judge...”

It is understandable that the ordinary course of criminal procedure in Victoria requires the interlocutory rulings of a trial judge to be accepted for the purposes of the trial, whether those rulings be right or wrong.  If the rulings are wrong then, upon conviction, an accused person is entitled to challenge the ruling on appeal.  But the prosecution has no such right.  If the ruling results in an acquittal the ruling, albeit erroneous, can be canvassed on appeal, but only to correct the ruling - not to impeach the acquittal:  see section 450A. 

Obviously two considerations are in competition here.  On the one hand, the prosecution is entitled, no less than the defence, to a trial according to correct rulings on questions of law.  On the other, interlocutory appeals in criminal trials delay the trial and are likely to produce miscarriages of justice in ways unrelated to the ruling.  The personal and financial stress of criminal trials, the dimming of witnesses’ memories and the sheer delay between criminal conduct and the administration of condign punishment are factors which weigh heavily in favour of expediting the process of the criminal trial, even though incorrect rulings have to be accepted by the prosecution in order to achieve that object, subject to section 450A.  The legislative scheme gives greater weight to the despatch of criminal trials than it has given to protecting the prosecution’s ability to appeal against rulings which it thinks to be incorrect.

It follows that a grant of special leave in the present case would significantly frustrate the process of the criminal trial as prescribed by the Victorian Parliament.  This Court has long been extremely reluctant to intervene in criminal trials by granting special leave to appeal against interlocutory decisions.  The present case, though it raises important questions for consideration, does not warrant a departure from the practice of this Court and the policy that is manifest in the Crimes Act of Victoria. 

On the issues argued by counsel for the applicant, and in the light of this conclusion, it is unnecessary for this Court to address the question whether an appeal might lie from the interlocutory ruling of Vincent J pursuant to section 73 of the Constitution.

Special leave will be refused.

MR RICHTER   If your Honour pleases.  We are instructed to seek costs on a solicitor client basis on the basis that this application should not have been brought at all.

BRENNAN CJ:   Are there any other applications for costs?

MR WALKER:   Yes, your Honour.

MR FINKELSTEIN:   For costs, your Honour.

MR CLELLAND:   Yes, your Honour.

MR FORREST:   Yes, your Honour.

MR RUSH:   Yes, your Honour.

BRENNAN CJ:   Mr Jackson, do you have anything to say about an order for costs on the ordinary basis?

MR JACKSON:   No, your Honour, we have said in paragraph 3 of our summary of argument there is no reason why an order for costs should not be made if the application fails.  However, so far as the question of costs on a solicitor and client basis is concerned, I would wish to address some submissions if the Court were minded to entertain that further.

BRENNAN CJ:   It is unnecessary for you to do so, Mr Jackson.  We will hear what you have to say, of course, Mr Richter, but you will have ‑ ‑ ‑

MR RICHTER:   I was not going to agitate that, your Honour, because lunch time is here but I was going to ask for the order against both the NCA and the DPP.

BRENNAN CJ:   The NCA is not even in the picture, is it?

MR RICHTER:   It is not any more, but it has caused us a fair bit of midnight oil burning in answering them.

BRENNAN CJ:   I am sure the enlightenment has been worth the time.

MR RICHTER:   Absolutely, your Honour.

BRENNAN CJ:   There will be an order for costs in favour of the respective respondents against the applicant.

The Court will adjourn to Sydney and Melbourne on Monday, 5 August 1996.

AT 1.03 PM THE MATTER WAS CONCLUDED