Roddan v Hammond

[1998] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P18 of 1996

B e t w e e n -

LINDSAY GORDON RODDAN

Applicant

and

His Honour Judge KEVIN JAMES HAMMOND and THE JUDGES OF THE DISTRICT COURT OF WESTERN AUSTRALIA

Respondents

Application for special leave to appeal

GAUDRON
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 JUNE 1998, AT 12.55 PM

Copyright in the High Court of Australia

GAUDRON J:   You are Mr Roddan, are you, and you are the applicant?

MR L.G. RODDAN:   Yes, if the Court pleases, in person.

MR S.P. PALLARAS:   If the Court pleases, I appear with my learned friend, MR S. VANDONGEN, representing the intervener, the Director of Public Prosecutions.  (instructed by J.R. McKechnie, QC, Director of Public Prosecutions for Western Australia)

GAUDRON J:   Do you have any objection to the DPP’s appearance?

MR RODDAN:   None whatsoever, your Honour.

GAUDRON J:   Thank you.  Before we commence I should indicate that the Senior Registrar certifies that she holds a letter from the Crown Solicitor’s Office in Western Australia, solicitor for the respondents in this application, advising that they will abide by any decision of the Court in this matter.  So you may now commence, Mr Roddan.

MR RODDAN:   If the Court pleases.  There are, in fact, two central issues that arise in this application.  The first issue relates to the provisions of Dietrich and the second relates to the construction of four sections of the District Court of Western Australia Act, section 42(1), 44, 80 and 81.  The principal basis of the application relates to the supervision of the District Court by the Supreme Court whilst the District Court is in exercise of criminal jurisdiction.

HAYNE J:   Can I just ask you a question, Mr Roddan?

MR RODDAN:   Yes.

HAYNE J:   You have stood your trial and served your sentence, have you not?

MR RODDAN:   That is correct.

HAYNE J:   If this Court gave you leave, what order would you ask this Court to make that would have any effect of any kind?

MR RODDAN:   Your Honour, a statement of the correct interpretation of those various sections of the District Court Act.

HAYNE J:   What effect, if any, would that have on you when you have stood your trial, served your sentence and that is at an end?

MR RODDAN:   Your Honour, if I can refer to an affidavit that I filed dated 15th day of June 1998.  The availability of prerogative relief against the District Court is a question that has caused me a lot of personal concern and if I can turn to page 49 of that ‑ ‑ ‑

HAYNE J:   Mr Roddan, would you answer my question.  What effect on you would an order have?

MR RODDAN:   That would enable me in the proper case, as the situation presently stands, that when I suffer an injustice for which the prerogative relief is available or ought to be available, I am then in a position to seek that relief.  It is a very important right.

HAYNE J:   In another case?  Is that what you are telling me, that you want this order so that you can deal with some other case at another time?

MR RODDAN:   Your Honour, no.  The order sought is not to the point.  What I want is a declaration in terms as the time is now passed for any effect out of this order.  I want a declaration in terms as to the proper construction of those sections of the District Court Act.  In the case of the facts of this matter the question of law that arises in relation to certiorari is not a question that subsequently arose in the Court of Criminal Appeal in an appeal against conviction.  The question for the Court of Criminal Appeal is whether the trial was fair or not fair.  The question of the availability of certiorari did not arise. 

I have had a similar situation as recently as November 1997 where a set of facts which the Chief Justice of the Supreme Court - and it is contained at page 49 of the affidavit - the certain conduct by, in fact, the same District Court judge would, had the remedy been available, have been quashed by certiorari, your Honour, and that is contained at lines 19 to 21 of the affidavit.  So subsequent to these events there has been a further situation where there has been conduct within the District Court in criminal jurisdiction where certiorari would lie if, in fact, the true position was that it was amenable to certiorari and I have been denied the remedy.

GAUDRON J:   Yes, we understand the position that you make but you do need to address the question that this Court does not make declarations with respect to questions that are moot or hypothetical and would have no direct impact in the proceeding.

MR RODDAN:   Yes.  Your Honour, perhaps if I deal, firstly, with the law relating to this matter and as it stands.

GAUDRON J:   Very well.

MR RODDAN:   The facts that led rise to this application are contained within the transcript contained within the application book, your Honours, at pages 1 to 7 and there is perhaps no point in me going to them.  They are quite apparent.  What, in effect, happened was the learned Chief Judge, upon being advised that the State of Western Australia had made available a restricted sum of money for my defence of criminal charges, summarily dismissed a stay that had previously been granted.

Application was then made to the Supreme Court for an order nisi to quash those orders and on 16 February 1996 Justice Anderson granted the order nisi in the terms sought, one of the grounds being that there was a denial of natural justice or procedural fairness.  The matter then returned to the Full Court and the court decided that, as a consequence of section 42(1) of the District Court of Western Australia Act, which states that the court should have all the powers and procedure relating to trial indictment of the Supreme Court, the decisions have stated that in light of section 42(1) the District Court in exercise of criminal jurisdiction is a court of superior record and not amenable to certiorari or supervision by the Supreme Court. 

The court further found that sections 80 and 81 of the District Court of Western Australia Act are privative causes that restricted the remedy of certiorari solely to the case where it is sought to remove a matter from the District Court to the Supreme Court and it found that certiorari to quash or for jurisdictional error, et cetera, in the normal notions of the remedy were not available.

I have included in the book of authorities the various passages of the District Court Act.  They are contained at pages 39 to 46, 48, 49.  Section 81, which is on page 49 - section 80, at least, which is the first preamble:

No judgment or order of a District Court Judge, nor any proceedings brought before him or pending in the Court, shall by removed by appeal, motion, certiorari or otherwise into any other court, except in the manner and according to the provisions of this Act.

The Full Court has found, and the Full Court is following a previous decision of the Supreme Court Re Ackland; Ex parte Love (1989) 1 WAR 562 which is at page 95. In Re Ackland it was determined that because of section 42(1) of the District Court Act, except as provided in subsection (2), this is section 42(1):

the Court has all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence. 

There were two arms in Re Ackland why certiorari was not available against the District Court in exercise of criminal jurisdiction.  The first in relation to section 42(1) was a decision of this Court in Day v The Queen where it was held for the purposes of a sentence the District Court of Western Australia was a superior court of record.  The second arm was that as a consequence of the jurisdiction conferred by section 42(1) the Supreme Court was equal to a court of assize or oyer and terminer and as such no certiorari would lie or no supervision, in fact, from the Supreme Court in exercise, however, these cases are fairly doubtful.

Similar provisions to section 80 and 81 of the District Court of Western Australia Act were considered by the Supreme Court of Queensland by W.B. Campbell in R v The Judge of the District Court at Brisbane and Davis; Ex parte Allen (1969) Qd R 114 at 127 to 129. His Honour concluded that the relevant sections of the Act were:

not expressed in such clear terms as to deprive a person of his common law right to obtain a writ of certiorari in a matter which has proceeded to judgment or order -

And a similar conclusion would be unavoidable in a reading of the Western Australian Act.

The High Court considered a section similar to section 42(1) of the District Court Act in A‑G Queensland v Wilkinson; In re R v The Industrial Court (1958) Qd R 415. In that case Justice Fullagar considered a similar section and his Honour’s conclusion, which was concurred for by the majority:

The words can mean no more than that within its own sphere the.....Court may exercise any appropriate power of the Supreme Court -

and his Honour considered that the proposition that this section could extend jurisdiction of the court was absurd. 

Your Honour, that is the principal question that arises, the construction of those four sections of the District Court Act, and whether they are properly regarded ‑ ‑ ‑

GAUDRON J:   Yes, but you must still deal with the question why they should attract the grant of special leave when they will have no direct impact in the proceedings in which you seek leave to appeal.

MR RODDAN:   Your Honour, it is a question that has arisen regularly.  It is a fundamental right that, if the cases as decided by the Full Court in Western Australia are wrong, it is denying a fundamental right and a benefit and the effect is that you have a District Court in the exercise of criminal jurisdiction that simply arbitrarily denies people the right to be heard, the right to present their case and does so without any immunity.  The question relating to supervision in the course of criminal proceedings is not a matter that is ever going to come before this Court as a result of a conviction because, for instance, after the denial of an application such as this, the question is not whether certiorari was or was not available, the question that comes before the Court is whether the applicant had a fair trial or not.

I have had a number of these applications and each one of these applications has been denied on the basis of jurisdiction, that the remedy is not available.  Now, either the supervision by the Supreme Court is a matter of some importance and it needs to be resolved if there is an arguable case or, if there is no arguable case, the matter rests there, but there is no other way to resolve this question.  Certainly I had a decision last November or December.  I could appeal that.  The same result.  There was no jurisdiction.  There was no supervision.  Does it matter if it is the November 1997 decision, the April 1996 or the July 1998 decision?  It is an important question that needs resolving.

GAUDRON J:   Well, it does.  It does matter because the very nature of judicial power is that decisions are given and declarations are made only in respect of matters that are truly alive in the proceedings.

MR RODDAN:   This is a principle that is truly alive, not a matter that is truly alive in the proceedings and if it was incumbent to justify to the Court what relevance this question would have to the proceedings the subject of the appeal, your Honour, there never could be any, unless the appeal to the Court of Criminal Appeal was unsuccessful and the matter came to this Court.

GAUDRON J:   Well, you say that, but we are not here to give you legal advice on these matters.

MR RODDAN:   No.  There is no justification that I could offer to the Court other than the importance of the question of law why special leave should be granted.

GAUDRON J:   We understand that.

MR RODDAN:   Thank you.

GAUDRON J:   Have you completed your submissions?

MR RODDAN:   Yes, I have, thank you.

GAUDRON J:   Thank you, Mr Roddan.  We need not trouble you, Mr Pallaras

The applicant seeks special leave to challenge a decision of the Full Court of the Supreme Court of Western Australia discharging an order nisi for certiorari with respect to a decision by Hammond CJ of the District Court.  His Honour discharged a stay of criminal proceedings then pending against the applicant.  The criminal proceedings have now been completed and the applicant convicted.  Accordingly, the only issue that now arises is whether the applicant had a fair trial in accordance with law.  That is a matter that can only be determined by way of appeal against conviction.  Accordingly, the application is refused.

The Court will adjourn to reconvene for the remaining matters.

AT 1.11 PM THE MATTER WAS CONCLUDED