Rich v The Queen

[1999] HCATrans 470

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

MelbourneNo M5 of 1998

B e t w e e n -

HUGO ALISTAIR RICH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 10.42 AM

Copyright in the High Court of Australia

MR B.F. MONOTTI:   If the Court pleases, I appear with my learned friend, MR D.E. RISSTROM, for the applicant. (instructed by T.F  Grundy & Co)

MR P.A. COGHLAN, QC:   If the Court pleases, I appear for the respondent. (instructed by P.C. Wood, Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Monotti.

MR MONOTTI:   In this case, if the Court pleases, it would be argued that the findings of the Court of Appeal, upon which it based its refusal to grant the application for adjournment of the hearing of the appeal, were based upon misdirections by the court as to what ought now to be regarded as the rights and legitimate expectations of a citizen of this country who is seeking to have his conviction upon serious offences reviewed by an appellate court and that the Court of Appeal held to and condoned notions as to the need for representation by counsel in the appellate process and the nature of the adversarial system at the appellate level, which are inconsistent with principles of fair administration of criminal justice.

Whether or not any Court of Appeal in Australia can continue to exceed to propositions which were held by the Court of Appeal in this case, being propositions based upon notions that there can be a fair hearing of an appeal against conviction of a serious offence if the appellant is not represented by counsel, that it is open to a Court of Appeal to decide that a particular appellant may receive equal treatment before the law and a fair hearing without counsel by reason of his apparent intelligence and ability to conduct the appeal himself, that there is something special in the nature of the appellate process, which provides some sort of in-built protection for an unrepresented person, such as the court being placed in a position akin to parens patriae upon an appeal, or a notion that the unrepresented person convicted of a serious crime can be treated equally and accorded justice to the same extent as a represented person before the court on appeal, are, I submit, questions of general importance, which call for definitive answers.

GLEESON CJ:   But it may depend a lot on the circumstances in which the person comes to be unrepresented.

MR MONOTTI:   Indeed, your Honour.

GLEESON CJ:   Some people, for example, continuously and repeatedly sack their legal representatives, and that is how they come to be unrepresented.

McHUGH J:   A lot may turn on the particular person; it may be, for example, a struck-off solicitor.  In this particular case, the court said that your client’s familiarity with the evidence was extraordinary; he was frequently able to refer to pages, dates, numbers and other matters, without reference to notes, in a case involving thousands of pages of transcript.

MR MONOTTI:   With respect, your Honour, it is my submission that ‑ ‑ ‑

McHUGH J:   Can I also add that it said that he displayed remarkable ability and remarkable familiarity both with the facts and with the law in arguing his application.

MR MONOTTI:   With respect, it would be my submission that even though the court made all of those findings, of course, and it was quite clearly very impressed with the ability of the applicant to present and articulate his case, I submit with respect that that is not the question at issue at that point for the Court to decide.  The question to be decided, with respect, is whether or not, regardless of the apparent abilities and talents of the unrepresented person before the Court of Appeal, he can expect to be accorded a fair hearing without representation by counsel.

McHUGH J:   But, in the exercise of our discretion to grant special leave, those matters are surely relevant in determining whether or not, for example, there has been any miscarriage of justice.

MR MONOTTI:   I, of course, certainly accept that, your Honour.

McHUGH J:   Yes.

MR MONOTTI:   The question here is, if one looks at the past conduct of the applicant as was, of course, before the court, the court for the purpose of making the decision which it did as to the abilities of the applicant to proceed and indeed exercising its discretion in the end that the adjournment ought to be refused, necessarily had regard to background matters which were put before the court and necessarily found, as a matter of necessity, must have taken it upon itself to make decisions as to matters which were the subject of substantial challenge by the applicant before the court.  For example ‑ ‑ ‑

GLEESON CJ:   Mr Monotti, last year, 28 per cent of all applicants for special leave to appeal to this Court were unrepresented.  Does it follow from that that they self-evidently did not receive a fair hearing?

MR MONOTTI:   I do not submit that would be so at all, your Honour; indeed I would seek to draw a clear distinction between the appellate process, at the level of this Court, and the appellate process at the first opportunity to have a complete review of one’s conviction.

GLEESON CJ:   But, what is the difference?  One might have thought it is a fortiori in this Court, when a large part of the argument is put in written form and where there is a kind of sudden death operation where people are limited to 20 minutes; one would have thought if ever there was a forum in Australia in which skilled advocacy is called for, it is this one, and yet, 28 per cent of applicants, in this forum, are unrepresented.

MR MONOTTI:   The distinction, which I submit ought to be drawn is a distinction between the opportunity at the first instance to have a complete review of one’s conviction, as one would have at the level before the Court of Appeal.  An application for special leave falls into quite a different category.  The covenant to which I have referred, which I submit now can properly be regarded as forming a foundation for the development of our common law and, indeed, the rights there declared, I would be submitting, can be regarded as properly forming a foundation for the way in which one regards one’s rights.

McHUGH J:   I am not sure it is right to say that it can be regarded as a foundation.  Common law must be developed from common law principles.  In developing those principles, it is no doubt right, according to Mabo and other cases, to take into account these instruments to which you refer, but I am not sure it is right, Mr Monotti, to say they can be the foundation, as if they were a statute, for example.

MR MONOTTI:   I certainly do not submit that, your Honour, but I do submit they, nevertheless, as has been accepted by this Court in Teoh’s Case, for example, that they can give rise to a legitimate expectation and it is my submission that, in the case of one’s application for a review, at the first instance, of one’s conviction, then these rights, as declared by the covenant and indeed the adoption of some of them by legislation, albeit not directly applicable, give rise to a legitimate expectation that one would be accorded those rights, particularly here, a right to a, what I submit is, fair hearing of the appeal at the first level, that is, the opportunity for the overview; the comprehensive overview of the convictions.  Quite a different situation from an application for special leave, I submit.

The court adopted a view, which is entirely out of step with notions held in the United States now for many years, as to the difference which the Court of Appeal considered to exist between the need for counsel at the trial level and the need at the appellate level.  The cases of Anders v California and Penson v Ohio, being numbers 2 and 8 in my list, contain passages which, I would submit, are observations of principle in relation to the need for counsel at the appellate level, which can be particularly persuasive here.

McHUGH J:   But that is a decision in respect of federal jurisdiction, is it not?

MR MONOTTI:   Yes.

McHUGH J:   And federal jurisdiction, particularly in the United States in the federal courts, is a very tricky affair.  We are here dealing with the common law system really.  We are dealing with the jurisdiction of the Supreme Court of Victoria.

MR MONOTTI:   But the court in each case has nevertheless called upon common law principles when expressing the views to which I would refer.  First in Anders at pages 741 to 742:

For a decade or more, a continuing line of cases has reached this Court concerning discrimination against the  ‑ ‑ ‑

McHUGH J:   What page is it?

MR MONOTTI:   Page 741, your Honour.

McHUGH J:   I do not seem to have page 741; 738 I think mine finishes at.  I doubt it would be page 741, because the majority judgment ends at 738.

MR MONOTTI:   I am very sorry.

McHUGH J:   Anyway, you tell us what you rely on.

MR MONOTTI:   If I might, I am reading from what I understand to be contained on that page:

For a decade or more, a continuing line of cases has reached this Court concerning discrimination against the indigent defendant on his first appeal.  Beginning with Griffin v Illinois.....where it was held that equal justice was not afforded an indigent appellant where the nature of the review “depends on the amount of money he has,” at 19, and continuing through Douglas v California.....this Court has consistently held invalid those procedures “where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.”  Indeed, in the federal courts, the advice of counsel has long been required whenever a defendant challenges a certification that an appeal is not taken in good faith, Johnson v United States.....and such representation must be in the role of an advocate, Ellis v United States.....rather than as amicus curiae.  In Ellis, we concluded:

“If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account.

McHUGH J:   What is the source of this right in respect of an appeal?  Is it the Sixth Amendment’s requirement that “the accused shall enjoy the right...to have the Assistance of Counsel for his defence”?

MR MONOTTI:   Yes, your Honour; the Sixth and the Fourteenth Amendments, in combination.  The Fourteenth Amendment is in rather general terms, but it is those two which seem to form a foundation.

GLEESON CJ:   We have already dealt with the application dealing with the matter of failure to order legal aid or take steps to provide that the appeal did not go ahead and that your client got bail unless legal aid was provided.  We have disposed of that matter.  We are now dealing with a refusal of an adjournment, are we not?

MR MONOTTI:   Yes.

GLEESON CJ:   What do you say about the finding of fact made on the bottom of page 327 in relation to the application for adjournment?

MR MONOTTI:   I submit that this is an example of a clear misdirection, with respect, and that is that the court has, it would be argued, failed to have regard to the distinction between that opportunity for a comprehensive review of one’s conviction, at the first level, that is before the Court of Appeal, and the very limited rights thereafter by where special leave to appeal to this Court.

GLEESON CJ:   But the reason, essentially, that the adjournment was refused was that after a very lengthy review of the history of the matter, and the conduct of your client, the Court of Appeal came to the conclusion that he was manipulating the processes of the court and, as they said, “there must come a time when the balance of competing interests dictate that an appeal must proceed”.  That was just a discretionary decision based upon a very peculiar set of circumstances.

MR MONOTTI:   The difficulty about that, your Honour, is that the court was then deciding upon a matter which was part of the subject matter of the application.  The applicant was contending, apart from other things, that he had not received a fair trial.  That matters of the type upon which he was relying in support of his application for adjournment of the appeal, were matters upon which he had relied at the trial in support of applications for adjournment of the trial.  The court was then deciding upon matters which would have been in issue during the course of the appeal and one, I would respectfully submit, could not imagine that the applicant being so personally involved and having had such strong findings made against him, which involved matters the subject of appeal, could then be in a position at all to adequately present his case, and that would then give rise to the types of disadvantages which certainly were accepted to exist in the case of the trial, by the Court in Dietrich and, I submit, that those disadvantages similarly apply in the case of appeal.

The other American case is the case of Penson v Ohio ‑ ‑ ‑

McHUGH J:   Bearing out what the Chief Justice just said to you is that after the application for adjournment was refused, and then your client argued the appeal for four and a half days, the court said, that “as he assumed the role of advocate, the unrulely and offensive Hyde who only a little earlier had abused the prosecutor in the court, became the calm, cultivated persuasive Jeckyl”, and that seems to bear out the statement that the application for an adjournment was simply an attempt to manipulate the processes of the court.

MR MONOTTI:   Whilst the court embarked on making a finding directly against the applicant in that case, I must submit, with respect, that had the applicant been represented upon such an application, then his representative would not have been in the arena, with a finding so strong against him, personally, and then having to conduct his appeal.  The fact that the Court of Appeal has made such strong findings against the applicant in rejecting his application for an adjournment, made it impossible, in my submission, for him to expect that he would have the same sort of hearing of his appeal – and I make, of course, no criticism of the Court of Appeal in this regard – but regardless of the best intentions of the Court of Appeal, the applicant could not be in a position to conduct his appeal as he would be able to if represented by dispassionate counsel.

McHUGH J:   Mr Monotti, in the end it is a question of fact, is it not, as to whether or not, or discretion is to whether or not, this adjournment should have been granted and whether your client has suffered any miscarriage?  Your client is obviously a person of quite extraordinary ability and he apparently conducted his appeal with great ability.  In fact, the court said that they had never seen any lay person as good.

MR MONOTTI:   My answer must be, your Honour, that it is not open to the court to make such a decision on fact.  The court, in my respectful submission, misdirected itself as to the need for counsel at the appellate

level to secure a fair hearing of the appeal and I respectfully submit that the court ought to have applied at the appellate level the same principles which this Court has held to apply at the trial.

GLEESON CJ:   Mr Monotti, before you conclude, may I ask you this:  you have thrown the weight of your argument this morning on the refusal to grant the adjournment of the appeal.  There were, as I had understood it, other grounds of application.  You are not abandoning those, I presume?

MR MONOTTI:   No, I certainly am not abandoning them, your Honour.

GLEESON CJ:   Yes, thank you, Mr Monotti.

MR MONOTTI:   If the Court pleases.

GLEESON CJ:   We do not need to hear you, Mr Coghlan.

The primary ground of appeal relied upon in support of the application relates to an exercise of discretion by the Court of Appeal in refusing to grant an adjournment of the appeal.  The court’s refusal to grant the adjournment was based upon a detailed consideration of the special facts and circumstances of a highly unusual case, and the decision of the court reflects no error of principle or other basis that would be appropriate for a grant of special leave.

As to the other errors attributed to the Court of Appeal in its consideration of the merits of the appeal, in a number of respects these involved a review by the Court of Appeal of exercises of discretion by the trial judge. 

In those respects, and in relation to the other grounds of appeal sought to be relied upon, there is insufficient reason to doubt the correctness of the decision of the Court of Appeal to warrant a grant of special leave, and the application is refused.

AT 11.06 AM THE MATTER WAS CONCLUDED