Roddan v Director of Public Prosecutions

[1996] HCATrans 98

.D.

TRANSCRIPT
OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 216 St Georges TcePerth WA 6000Phone [phone]Fax [phone]

HIGH COURT OF AUSTRALIA

TOOHEY J

No P 18 of 1996

LINDSAY GORDAN RODDAN

and

DIRECTOR OF PUBLIC PROSECUTIONS

PERTH

9.01 AM, THURSDAY, 4 APRIL 1996

MR J. McKECHNIE QC:   With my learned friend, MS V. PRENTICE, I appear for the respondent.

HIS HONOUR:   Yes, thank you.  Yes, Mr Roddan?

MR RODDAN:   Your Honour, this is an application that, in the first instance, the time for service of this summons be abridged.

HIS HONOUR:   Yes.  Any objection, Mr McKechnie?

MR McKECHNIE:   No, your Honour.

HIS HONOUR:   Very well.  Time will be abridged to allow the summons to be dealt with this morning.

MR RODDAN:   That the orders of the Full Court delivered on 13 March 1996, civil number 1122 of 1996 re Hammond ex parte Roddan discharging the order nisi for a writ of certiorari granted ‑ ‑ ‑ 

HIS HONOUR:   You need not worry about reading ‑ ‑ ‑ 

MR RODDAN:   Thank you, sir.

HIS HONOUR:   You need not worry about reading the summons, Mr Roddan.

MR RODDAN:   Simply, your Honour, this is an application which in effect seeks to stay criminal proceedings in the District Court of Western Australia until such time as an application for special leave to appeal relating to the Full Court's decision can be heard by the High Court.

HIS HONOUR:   Well, what you really mean I think is until the application for special leave to appeal can be heard.

MR RODDAN:   Yes, your Honour.

HIS HONOUR:   What is the position with the criminal proceedings, Mr Roddan?

MR RODDAN:   Your Honour, the jury was empanelled on Tuesday and the matter is scheduled to commence on next Tuesday.

HIS HONOUR:   All right.  Yes, thank you.

MR RODDAN:   The questions involved in this matter, or the basic facts are that this is a matter where the applicant was found indigent by the District Court by reasons published on 19 December 1995, on 17 January 1996 that order to stay the proceedings pending the availability of legal representation was dismissed.  The circumstances of the dismissal and the grounds of the dismissal are in themselves grounds of appeal.  It was an arbitrary dismissal, there is no legal representation available, the offer from the Attorney General is so inadequate as to leave the applicant unrepresented and simply no counsel will touch it on that basis unless in the first instance they have had an opportunity to read the brief and satisfy themselves that they are going to be able to perform the tasks.

HIS HONOUR:   But what you seek to challenge through the application for special leave to appeal ‑ ‑ ‑ 

MR RODDAN:   The first point ‑ ‑ ‑ 

HIS HONOUR:   Well, let me finish - as I read it is that the Full Court was in error in holding in effect that certiorari: I would not lie to the Chief Judge and Judges of the District Court in respect of this matter.

MR RODDAN:   That is correct, your Honour.

HIS HONOUR:   Yes.

MR RODDAN:   And the grounds stated, or the limited grounds stated wherein certiorari would lie.  Certiorari is a word, from my research, that has a number of meanings and has a number of applications and what I would submit is there are two distinct forms - or there is two distinct applications to the word "certiorari."  There is the statutory certiorari: to remove and to hear in the Supreme Court.  Such conditions are contained in the Queensland District Court Act, the Western Australian District Court Act, and until it was recently abolished, in the New South Wales District Court Act.

Now this appears to be a form of certiorari that at the turn of the century was considered obsolete.  However it has been retained in various District Court Acts in Australia to retain the availability of the remedy.  However my submissions will be in part that there is a clear distinction between the common law writ of certiorari and the statutory certiorari: to remove and hear, the common law form being of course: to remove and quash.  And that was a distinction that was raised in one of the Queensland cases that I referred your Honour to and I believe that the language used in the District Court Act, the language used in the New South Wales Act and the effect it was previously held to have is such that it does not in any event affect the common law remedy of prerogative certiorari.  Whether or not that is the ultimate answer, remains to be seen. 

However there is a very serious issue to be tried and it is a very important remedy and when perhaps you refer the availability of a remedy to someone in my position who appears in Court without any prior knowledge of any offer of funding from an Attorney General and then summarily has a stay discharged, or dismissed, solely on the grounds of a letter from the Attorney in itself, your Honour, it seems hard to imagine that the District Court Act in this State, in Queensland, ever intended that those remedies not be available.  I would challenge further on the grounds that a breach - a gross breach of the rules of natural justice in itself ought to be covered by certiorari in any event notwithstanding the success of the argument or otherwise on the correct interpretation of section 80 and 81 of the Western Australian District Court Act.

HIS HONOUR:   We appreciate I think that it is not my function here to treat this, as it were, as a rehearsal of the application for special leave.

MR RODDAN:   Certainly, your Honour.  Perhaps merely it is an indication of good faith and it is open perhaps for the High Court in determination whether leave should be granted or not.  There is an issue to be considered, it is just not an empty application.

HIS HONOUR:   Have you any idea as to when your application for special leave to appeal might be heard?

MR RODDAN:   We are hopeful within 8 weeks, your Honour.  I propose to have all the papers to Mr Popple over Easter and we should be able to get the application book completed, I would hope, by the end of the first working week after Easter.

HIS HONOUR:   What is the significance of 8 weeks, is that related to a possible hearing date or the completion of the papers?

MR RODDAN:   No, the relation to the availability of a hearing date.

HIS HONOUR:   Being when?

MR RODDAN:   Well, as soon as I can get the papers together.  Mr Popple has undertaken to have the matter brought on as soon as possible.

HIS HONOUR:   What do you mean, brought on in Western Australia?

MR RODDAN:   Yes, heard by the - the special leave application heard.

HIS HONOUR:   Well, the special leave application could really only be heard either when the Court came here, which would be I think in October, or by video link, if there were a video link with Perth, before that time, or alternatively, by the matter being listed in one of the other centres.

MR RODDAN:   Well, I would certainly get myself to one of the other centres, your Honour, with the permission of the Court and my bail undertakings to have this matter resolved because I have been in custody for over 2½ years on this matter.  I am keen to have it dealt with.  However it is a matter of such controversy, it is a matter that I simply as an applicant in person could not deal with.

HIS HONOUR:   Yes.

MR RODDAN:   There is other considerations, your Honour, what is the correct interpretation of the principles of Dietrich and there is an issue that has arisen from these proceedings to stay is the commencement of a fourth inquiry into the subject matter of these charges and we now have a reinvestigation of the subject matter of these charges and we also have an investigation of the officers that were responsible for these charges by a task force of Australian Federal Police officers.

HIS HONOUR:   Well, how does that bear on these questions, Mr Roddan?

MR RODDAN:   It bears purely on the application for stay, your Honour, because it raises the question: is it proper for the District Court to conduct a trial in a matter when the whole matter is currently under a complete reinvestigation.  Of course police investigations never cease, they are always ongoing.  However this is an extraordinary situation where the Commissioner of the Western Australian Police Force has felt appropriate to second strangers, if I might put it in those terms, from the Australian Federal Police to come to Western Australia and to reinvestigate this whole matter and to investigate the officers that conducted this inquiry that resulted in these charges.  These matters have been going since 1989.

HIS HONOUR:   But are you suggesting that that has some bearing upon the trial?  I mean, it is not going to affect the commencement or the running of the trial.

MR RODDAN:   Well, your Honour, I would submit ‑ ‑ ‑ 

HIS HONOUR:   And indeed if it were, what does it have to do with this application?

MR RODDAN:   I would suggest that it perhaps fortifies the application because I find it most improper that there should be a reinvestigation of a matter that is currently being tried before the Court.  One normally expects that when an investigation is completed the trial will follow.  It is an exceptional circumstance when a Commissioner of Police appoints an independent body to completely reinvestigate a matter.  And contained within that is certain inferences and it is a situation where the defendant might very well be deprived of essential information - defence information, particularly when the officers concerned with these charges are themselves under investigation.  I have to question the propriety of continuing with a trial in view of those circumstances.

HIS HONOUR:   Well, whether or not there is any substance in those matters, that must surely be a matter for the trial judge at this stage.

MR RODDAN:   Yes, very well, your Honour.

HIS HONOUR:   And has nothing to do with this application which seeks to stay the criminal proceedings by reason of the pending application for special leave to appeal which is based essentially, as I understand it, upon the ruling of the Full Court that certiorari was not available in this particular case.

MR RODDAN:   That is correct, your Honour.

HIS HONOUR:   The Court did not say certiorari was never available against the District Court.

MR RODDAN:   That is correct.

HIS HONOUR:   There are cases such as lack of jurisdiction or fraud where it may be available, but in this case, in these circumstances, it was not available.

MR RODDAN:   That is correct, your Honour.

HIS HONOUR:   Now that is a matter that you wish to challenge.  As I say, it is not for me to pre-empt the decision of the bench that entertains the application for special leave to appeal, but you do have some problems having regard to the language of the District Court Act.

MR RODDAN:   Yes, that is quite clear.  However the case, for instance - well, if I could perhaps just fortify that with another comment.  It relates to a New South Wales report, ex parte Lucas.  It is volume 10 NSWSR at 329.

HIS HONOUR:   Is that on your list of authorities?

MR RODDAN:   Yes, your Honour.  And in that case at page 329 the Chief Justice distinguishes between the issue of a common law writ of prohibition and a statutory power of prohibition.  It is on the bottom of page 329.

HIS HONOUR:   You had a look at that case of Craig, I imagine.

MR RODDAN:   Yes, your Honour, and I would seek to say that the Full Court, in any event, was wrong and that the grounds of certiorari are defined in Craig and not in the Full Court. 

HIS HONOUR:   Well, I would not thought that Craig was of any assistance to you and indeed could well stand in the way of your application since the Court in effect said there that any error by the trial judge in assessing the effect of the majority judgment in Dietrich, or in concluding that the appellant in that case's inability to obtain legal representation through no fault was not a jurisdictional error to which certiorari would lie but, as I say, I do not really want to get too involved in this.

MR RODDAN:   There is a distinction with an error of fact and there is a distinction of a decision made without any evidence at all and this is the distinction I would seek to draw.  There was no evidence other than a letter from the Attorney General and the ‑ ‑ ‑ 

HIS HONOUR:   But your real problem I think, Mr Roddan, is that the Court has said - this Court has said time and time again that it will not interfere in the progress of a criminal trial except in the most exceptional circumstances and the reasons are clear enough.  If every time a ruling was made prior to or in the course of the trial it was challenged and then if necessary sought to be made the application of a special leave - with an application for special leave to appeal, well, the whole criminal process would just grind to a halt.

MR RODDAN:   Admittedly, your Honour.  However I would submit that the circumstances in this case are such that would warrant the question of whether the letter from the Attorney General in itself is sufficient and, quite clearly, that is a question that was asked in the Court of Criminal Appeal in New South Wales in Milat where it was found that an offer of funding from the Legal Aid Commission in itself was not sufficient. 

.D.
Your Honour, this is a situation ‑ ‑ ‑ 

HIS HONOUR:   Well, again, I would not have thought that Milat helped you very much because there this Court declined to grant special leave to challenge the decision of the Court of Criminal Appeal, which in effect set out the basis upon which Legal Aid could be granted in order to meet the requirements of justice, a formula which was really at variance with that of the trial judge.

[9.16am]

MR RODDAN:   Well, certainly the case in Milat in essence really was they wanted the High Court to tell the Legal Aid Commission they had to pay Mr Milat's solicitors more money.

HIS HONOUR:   Well, in your case there has been an offer of Legal Aid, has there not?

MR RODDAN:   Yes, your Honour.
HIS HONOUR:   Which you claim to be inadequate?

MR RODDAN:   Well, I do not claim;  nobody will read the brief for nothing, to take it on, and the Attorney-General has deemed that it is a waste of money paying a solicitor or counsel to read the brief to determine what the defence needs will be.  It is simply impossible;  at no stage has there been any counsel involved on my part in this matter.  I have been unrepresented for the entire period of time.  Your Honour, the real question is, was the arbitrary dismissal of the stay granted by the trial judge, by the learned chief judge on 17 January, valid.  That is the question.

HIS HONOUR:   I am sorry, would you say that again?

MR RODDAN:   The question to be asked is simply, was the arbitrary dismissal of the stay granted by the trial judge ‑ - -

HIS HONOUR:   By Healey J.

MR RODDAN:   ‑ ‑ ‑ that was dismissed by the Chief Judge on 17 January a valid exercise of jurisdiction, and subject to certiorari.

HIS HONOUR:   Well, you describe it as a question of whether there was a valid exercise of jurisdiction.

MR RODDAN:   Yes.

HIS HONOUR:   But that may not be the correct way of describing it.

MR RODDAN:   Well, certainly, your Honour, as a layman ‑ ‑ ‑ 

HIS HONOUR:   Well, I was not seeking to correct you on some sort of technical point, but merely to say that it was a decision arrived at by the Chief Judge on the material available to him. 

MR RODDAN:   Yes.  However, your Honour, the question is, is that material sufficient to make a decision.

HIS HONOUR:   Yes, that is a question.

MR RODDAN:   A question, yes.

HIS HONOUR:   But it is not necessarily a question that would attract certiorari or would attract a grant of special leave by this Court.  Are there other matters that you wish to discuss?

MR RODDAN:   No, your Honour, they are sufficiently canvassed in my submissions.
HIS HONOUR:   Yes, all right, thank you, Mr Roddan.  Mr McKechnie?

MR McKECHNIE:   If your Honour please, I have filed submissions and I do not propose therefore to spend much time, but take them as read.  If your Honour pleases, just a couple of points;  many of the matters which were raised by Mr Roddan this morning have in fact been raised to the trial judge, matters such as the police investigation.

HIS HONOUR:   When you speak of the trial judge, are you speaking of the current trial judge?

MR McKECHNIE:   Healey J, the current trial judge who is Healey J.

HIS HONOUR:   It is Healey J, is it.

MR McKECHNIE:   They were raised - it is attached to an affidavit which we filed, not that it is really relevant, but the grounds that were raised are set out at page 72 or page 256 of the transcript, I think, before his Honour.  These matters have been raised by his Honour.  It is of some significance that the applicant, with respect to him, and it is understandable, seems to misunderstand the difference between writ of certiorari and an appeal.  It is of some significance that Anderson J, when granting the order nisi, did not direct that the order nisi stay the proceedings in the District Court.

HIS HONOUR:   I notice that there was a passage in the judgment of the Chief Justice on the return of the order nisi which, on one reading of it, might be taken to suggest that the section has some self-executing operation, but that is not what is intended, I imagine.

MR McKECHNIE:   No.  With great respect to the Chief Justice, I think that particular sentence is not quite right. 

HIS HONOUR:   There is no stay, as I read the section, unless the Supreme Court so directs.

MR McKECHNIE:   Yes, and the Court specifically did not direct, so the position is that there is not an order of any Court below staying the District Court proceedings.  One gets a little lost here with a discharge of an order nisi and consequent applications to your Honour, I accept, but it is of significance that there has been no stay as recently as Monday when the applicant made application to the Full Court for a stay.  That application was dismissed.  In the reasons, I think on 28 March, his Honour, Healey J, taking into account the foreshadowed application for special leave and other matters, also declined to re-stay the indictment.

HIS HONOUR:   Mr Roddan has been arraigned clearly this week, or did that take place earlier?

MR McKECHNIE:   That took place some lengthy time ago.  What happened this week was that 1 April was set for the day of trial.  On 1 April the judge explained to the applicant the empanelment procedure;  on 2 April the jury was empanelled, and because of Easter the trial has been adjourned to next Tuesday to commence formally, with the Crown opening next Tuesday.

HIS HONOUR:   So, in a sense, the trial has not formally begun but arraignment has taken place and the jury has been empanelled?

MR McKECHNIE:   Yes, it has technically begun but not formally been begun.  As your Honour will see from the transcript, from our facts, the short timetable is that the committal was on 30 September 1994 and the indictment, when the applicant was arraigned, was 5 December 1994.  So, in our respectful submission, there are no exceptional circumstances to interfere with the criminal process, bearing in mind that of course the applicant is in person and the provisions of Order 69A will apply in relation to the filtering process and I do not understand that that has commenced yet in relation to his application for special leave.

HIS HONOUR:   Yes, you are quite right, I did not have that in mind when I made some comments to Mr Roddan about hearing dates and the like.  That would depend on whether there is representation for the purpose of the application or not.

MR McKECHNIE:   Indeed.  Otherwise, we rely on the written submissions we have filed.

HIS HONOUR:   Yes.  Mr Roddan, do you wish to say anything by way of reply?

MR RODDAN:   Yes, your Honour.  Firstly, in relation to the orders of Anderson J granting the order nisi, there was no application for a stay of the proceedings at all, and in response to the final submissions, your Honour, it can be nothing other than an exceptional circumstance to force an accused in personam in a trial of this length, of this complexity and of this controversy in these particular circumstances.  The transcript of proceedings from 9 and 14 February, together with the transcript of 17 January, quite clearly show there has never ever been an attempt to establish whether the offer from the Attorney-General is sufficient. 

The learned trial judge's comments on 14 February were quite simple:  We will be going on, on 2 April, whether Mr Roddan is represented or not.  There has never ever been a bona fide attempt to establish the sufficiency of the offer, and this is a very important issue, and it is an issue particularly in these circumstances that has never been dealt with before, to the extent of my research.  An offer is made on 17 January, the prosecution brief is 10,000 pages, no legal practitioner is prepared to read that brief of 10,000 pages and try and estimate the defence needs free of charge.

The comment that has been universally made by them is that there is not enough time between 17 January and 2 April to prepare in any event.  Your Honour, it is such an injustice that such a series of events ought to be allowed to remain unchallenged, and your Honour, I think there are serious issues to be tried to serious questions that need answering, and are contained within the application for special leave.  Thank you, sir.

HIS HONOUR:   Yes, thank you, Mr Roddan.  It is clearly necessary that I deal with this and determine this application now, given that the trial     is already under way, at least to the extent that the jury has been empanelled. 

Mr Roddan has lodged an application for special leave to appeal to this Court from a judgment of the Full Court of the Supreme Court of Western Australia given on 13 March this year.  And by that application Mr Roddan wishes to appeal from the decision of the Full Court discharging an order nisi for certiorari granted against the Chief Judge and the judges of the District Court of Western Australia.

The basis of the order nisi was alleged error on the part of the Chief Judge in dismissing Mr Roddan's application to stay criminal proceedings against him by reason of what was said to be limited and restricted funding for legal representation in those proceedings. The Full Court discharged the order nisi essentially because in its view certiorari did not lie to the District Court as a superior court of record except in cases of lack of jurisdiction or fraud. The Full Court held this result to follow from the provisions of the District Court of Western Australia Act 1969.

Mr Roddan wishes to challenge on appeal the conclusion reached by the Full Court.  By his present summons Mr Roddan seeks a stay of the discharge of the order nisi.  This would leave the order nisi on foot, but no stay was granted at the time the order nisi itself was granted.  Mr Roddan also seeks a stay of the criminal proceedings against him which began in the District Court on 1 April, that stay to operate until determination of his application for special leave to appeal.  Such a stay would necessarily involve an adjournment of the trial which has already begun and the date for which was fixed, as I understand it, on 17 January. 

This Court has said repeatedly that the fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge will only be allowed in exceptional circumstances. The reason is as I expressed it to Mr Roddan earlier, namely to avoid situations in which the administration of justice in the criminal courts is impeded unduly. The rights of appeal by a convicted person are not thereby jeopardised and since this application is concerned with the funding of legal representation, it is perhaps as well to remember that Dietrich v The Queen (1992) 177 CLR 292 itself was an appeal against conviction, not an application made during the course of, or prior to the commencement of trial.

In the circumstances, it is unnecessary to consider the strengths and weaknesses of the application for special leave to appeal and it is rarely appropriate to do so. But in that regard reference should be made to Craig v South Australia (1955) 131 ALR 595, where this Court said that any error by the trial judge in that case in assessing the effect of the judgment in Dietrich, or in concluding that the appellant's inability to obtain legal representation was through no fault on his part was not jurisdictional error for the purposes of certiorari.

No sufficient reason has been advanced why the Court should exercise what it has often referred to as its extraordinary jurisdiction to grant a stay, particularly in the case of a criminal trial which is already on foot.  The summons will be dismissed.  The order of the Court is the summons is dismissed.

AT 9.30 AM THE MATTER WAS ADJOURNED
INDEFINITELY