Roddan v Walker

[1998] HCATrans 381

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P59 of 1996

B e t w e e n -

LINDSAY GORDON RODDAN

Applicant

and

MICHAEL JOHN WALKER

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 22 OCTOBER 1998, AT 3.22 PM

Copyright in the High Court of Australia

MR L.G. RODDAN appeared in person.

MR R.E. COCK, QC:  With my learned friend, MR M.G. LUNDBERG, I appear for the respondent, your Honours.  (instructed by Crown Solicitor for Western Australia)

McHUGH J:   Yes, Mr Roddan.

MR RODDAN:   Your Honours, this application raises six issues that may be of general importance warranting consideration by the Court.  The first, in relation to adjournments, is the approach adopted by his Worship in this case to refuse consideration of the applicant’s application - - -

McHUGH J:   Well, that is not really the issue, is it?  When this Court grants leave to appeal, the orders it makes on the appeal, assuming it allows the appeal, is the order that the court below should have made.

MR RODDAN:   Yes.

McHUGH J:   So, the question is not whether or not his Worship approached the matter in the correct way but whether it was open to the Full Court to take the view that there had been no failure to properly exercise his discretion.

MR RODDAN:   Yes, your Honour, I take that point.

McHUGH J:   I am sorry, well, carry on.

MR RODDAN:   Yes.  The second point relates to the Full Court’s decision that the fact that the alleged oral confessions made in the breaking and entering squad’s offices may well have been a verbal but, at the end of the day, bore no relevance to the credibility of the alleged oral admissions made by the applicant at the scene of the incident.

McHUGH J:   But, you see, this point was not taken before his Worship, because, at least, initially, you refused to participate in the proceedings, a course of action which, in retrospect, you might well think was a mistake now.

MR RODDAN:   Yes, certainly, your Honour.  However, in the occasion it was impossible to participate without the necessary material so no matter what I did would have been a mistake.

The third ground I would propose, your Honours, is that the Full Court’s interpretation of the relevant sections of the Firearms Act are so manifestly unreasonable as to constitute a substantial miscarriage of justice and the court’s view that in relation to this matter it was not necessary for the Crown to prove each element of the offence charged is untenable.

The final ground is that is there an obligation of a judicial officer, in cases where property is likely to be forfeited, to first give any interested non‑party an opportunity to be heard prior to any order being made?

McHUGH J:   No interested non‑party made an application to be heard.  You alleged that the revolver was owned by a company.  The magistrate apparently took the view that he was not going to act on that and he forfeited the revolver but there has been no application by any third party that is interested in the forfeiture.  Even at this stage, it is possible perhaps, that the order of forfeiture could be set aside by a person who had been denied natural justice and who was the true owner.  It does not seem to me that it was a point that was open to you.

MR RODDAN:   With respect, your Honour, this matter is not concluded, so until such time as this course of action is concluded, perhaps, bearing in mind the cost and the approach recommended by the Full Court in its decision, it has not been necessary for any interested non‑party to pursue that action bearing in mind the cost of such actions.

It may be well and good for members of the legal profession to speak in terms of taking various actions but those of us amongst the community that are indigent do not normally enjoy such luxuries so, in many occasions it is not possible for claimants to pursue such properly, particularly when it involves a very complex legal proceeding to recover something that is probably not worth a quarter of the cost of those proceedings.

McHUGH J:   That may be, but the point from your point of view is that it is not really a point that you can raise.  If it was not your property then you had no interest in the forfeiture.

MR RODDAN:   Yes.

McHUGH J:   If it was somebody else’s property then that person may have an interest in the forfeiture and that person may have standing to challenge the order.  There would be questions of whether the magistrate is functus but that is another question.

MR RODDAN:   With respect, your Honour, during argument before the Full Court and reading the transcript, the Full Court was of the view that I did have standing to challenge such an application.  Obviously, I am now disavowed of that view so ‑ ‑ ‑

McHUGH J:   We are here to deal with the special leave point and that there is some matter of fundamental principle calling for the grant of special leave.  As you are probably aware, there are hundreds of thousands of cases determined in this country every year.  After hearing its constitutional workload, this Court can take no more than 40 or 50 of those hundreds of thousands of cases.  There has got to be something truly special about the case.

MR RODDAN:   Yes, your Honour.  The first ground relates to the Full Court’s decision upholding the learned magistrate’s refusal to consider the application to adjourn the proceedings.

McHUGH J:   But see, much of the material that you now seek to get in front of us, which arguably we cannot consider anyway having regard to the fact that we do not take new evidence on, was not before the magistrate.  The magistrate had not much material before him at all.  You have gone so far as to say, I think, that you would have been ready to proceed if you had not been arrested and when you first were aware the matter was being heard you asked the police to provide you for particulars.  There was not very much before the magistrate and he makes a decision and, what is more, he gave you the opportunity at the end of the prosecution case to say, “Hold on, I just have not had an opportunity to defend myself properly here” but you did not avail yourself of it.

MR RODDAN:   With respect, your Honour, the very point is the proposition that consideration for an adjournment, absent any suggestion that it is frivolous or vexatious, should be left till the conclusion of the prosecution case.  This is the very point.  It is, perhaps, the most absurd proposition I have ever heard.  How can one effectively participate in proceedings when he is denied the very materials, the notes and the various information that is required to cross‑examine.  It is no use after the prosecution case.  The bird has flown.

McHUGH J:   It may or may not have been but, at the end of the prosecution case, you may have made an application, you may have called evidence, you may have asked for witnesses to be recalled so that you could cross‑examine.  There are all sorts of options open to you, but in the circumstances that were before the magistrate, he formed a particular view of the case having regard to its history, the fact that a witness was there, the fact that you were apparently ready to go on and you would have been ready to go on if you got an answer to your letter requesting particulars and these are matters but, Mr Roddan, they are a long way removed from a special leave point.

MR RODDAN:   So, your Honours are of the view that the proposition put forward by his Worship, that it is a proper exercise of discretion?

McHUGH J:   The Full Court took the view that it was so.  Our question is, is there anything in the reasons of the Full Court in relation to that matter which would attract the grant of special leave to appeal and, at the moment, it appears to me that the answer to that question must be no.

MR RODDAN:   So the duties of procedural fairness do not apply in matters of summary determination?

McHUGH J:   No one has said that at all.  What has been held in this case is that procedural fairness has been discharged and it was discharged in this particular case by giving you, in the circumstances, a further opportunity.  We held recently in Sali’s Case, one case we did take on about an adjournment, that the fact that somebody was refused an adjournment of an appeal and did not press on, did not amount to any denial of natural justice and that was held 18 months, two years ago in a case called Sali v SPC.  There are no fixed rules about this.  The content of natural justice depends upon all the circumstances of the case.

MR RODDAN:   Yes.  It is appreciated.  Perhaps I will pass those two first and second proposed grounds, your Honour, in relation to the adjournment and the Full Court’s decision that even if the alleged admissions of the police officers were a verbal it did not affect the credibility of the alleged confessions at the scene of the alleged incident.

McHUGH J:   Yes, Mr Roddan. 

MR RODDAN:   Thank you, sir.  The third question that I wish to raise relates to the Full Court’s interpretation of the relevant sections of the Firearms Act 1973. They are contained within the application book at pages 100, line 27 to page 114, line 18. The most fundamental error in the court’s reasoning is that the applicant was convicted of breaching a condition of his firearms licence without his then current licence or the register required to be maintained pursuant to section 18(6) of the Firearms Act which is contained within the book of references at page 26. Section 21(1) of the Firearms Act which is contained within the references at page 21, section 31(1) of the Firearms Act and rule 6(4) and 21(1).

The Full Court found that the computer-generated printout of the police central names inquiry system which is exhibited in the application book between pages 29 and 32 through Inspector Scott, who gave evidence in the application book at page 11 line 7 to 21, was proof of the register as specified by the Firearms Act.

McHUGH J:   Did they say that?  Justice Anderson seemed to say that the register was in evidence, and that seems to be the effect - or a copy of the register.

MR RODDAN:   Yes.

McHUGH J:   And that seems to be the effect of exhibit F which was put in without objection by you.  That is part of the problem that you face.  You did not take any part for much of this case and that document is tendered, evidence was given, not objected to by you.  Now, three or four layers of curial proceedings later you want to raise these points and they are really not open to you, Mr Roddan.  If you had raised some point about that, it may or may not be the case that your point would have been upheld but the fact is that the register went in without objection and that was the basis of the Full Court’s view.

MR RODDAN:   Is not the Full Court obliged to apply the law?

McHUGH J:   Of course the Full Court is obliged to apply the law but as to the evidentiary setting.  Parties can relax the rules of evidence.  There is no rule of law that says evidence can only be tendered in accordance with the strict rules of evidence.

MR RODDAN:   So the Evidence Act has no effect?

McHUGH J:   The Evidence Act has every effect if you invoke it and you did not invoke it before the magistrate.

MR RODDAN:   Your Honour, how is a lay person meant to understand all these matters, particularly when you have been in custody for two and a half years?

McHUGH J:   Mr Roddan, you have no doubt read our decision in Dietrich and you are well aware of the view this Court takes about the necessity for people to be represented in serious criminal matters and it may be, one day, that the Court will have to visit the situation in respect of summary offences but, again, in this particular case, no application was made by you for separate legal representation or that the proceedings should be adjourned.

MR RODDAN:   Yes, but there was no entitlement.  I had exhausted ‑ ‑ ‑

McHUGH J:   That is probably the case but the fact is that you had no legal representation.  You represented yourself and I do not know to what extent you are responsible for the preparation of your material in this particular application, but you do seem to have a far better working knowledge of legal matters than the average layman.

MR RODDAN:   After nearly five years in prison, your Honour, there is not much reading material and you would have to be pretty thick if you cannot somehow come to terms with this.

McHUGH J:   Yes.

MR RODDAN:   It is just, I find it an amazing principle that the innocent walk into the traps in the Court of Petty Sessions and through ignorance and lack of knowledge are chewed up.

KIRBY J:   Unfortunately, that does happen and it is unfortunate that that does happen but the fact of the matter is that you allowed the blood to rush to your head and just took no part in the proceedings and a lot of your problems have stemmed from that decision. 

MR RODDAN:   Yes, but if your Honours had ever ‑ ‑ ‑

KIRBY J:   I am not being critical of you because I understand emotionally how that could be made but, unfortunately, it makes our task in looking at the reservations and the objections and the steps you ought to have taken at that stage you did not take and, therefore, it is hard to come up to us and ask us to pretend that you did take them, because you did not.

MR RODDAN:   Yes, but, your Honours, you would probably not understand what it is like to have your bail revoked for nothing and having to ‑ ‑ ‑

KIRBY J:   I have been with clients whose bail has been revoked and I understand as well as I can what it is like.

MR RODDAN:   Yes, and, your Honour, there must be a duty of care attaching to the duties of judicial officers in courts of summary jurisdiction that are unfortunate enough to have to deal with people like myself that, perhaps, appear before them in not the best of humour, and who is going to protect us?  No one.

KIRBY J:   They are unfortunate to deal with people much less articulate than yourself.  You are a pleasure to deal with.

MR RODDAN:   Being articulate is not to the point.  I have had three to four years ‑ ‑ ‑

KIRBY J:   You were inarticulate at the critical moment, unfortunately for you.

MR RODDAN:   I was angry at the critical moment.

KIRBY J:   I appreciate that.

MR RODDAN:   It is an amazing thing that a justice in the Supreme Court grants me an adjournment on that morning as a matter of course and yet a magistrate says, “Too bad, Roddan, on we go”.

McHUGH J:   Well, you can understand it.  I mean, in fairness to the magistrate, the matter had been in the list for three years.  It had been set down for hearing.  You seem to have been under a misapprehension about that fact because of what had happened before the other magistrate.

MR RODDAN:   But I had been ready to go twice and the Crown applied for an adjournment.

McHUGH J:   I appreciate you had but the Crown says that they have got a witness here.  You, yourself, said, expressly, that you would have been ready to go if you had not been arrested the previous Friday.  The magistrate made a decision on the spot.

KIRBY J:   They deal with about 50 or 60 cases a day.  They have to make their decision straight away. 

McHUGH J:   They do not have the luxury of this Court who reserves in most of its decisions.  They have to make decisions on the spot.  These discretionary matters, there is a wide variety of answers.  You have to accept that in discretionary matters there is no correct answer.  There are a number of answers which may be opposite answers and yet could be correct.  We had a custody case today in which we said that very thing.  There is just no right answer.

MR RODDAN:   Yes.  But, with the greatest respect, your Honour, there must be attaching to magistrates in courts of summary jurisdiction – I do not care whether they have got 200 cases a day, there must be a duty of care to ensure that the Crown proves their case.  The onus is not on an accused to prove anything.

McHUGH J:   Absolutely.  You are absolutely right.  But on the evidence that was before this magistrate, possibly because you failed to object to some vital parts of it, there was evidence there upon which the magistrate could act.

MR RODDAN:   There was no evidence; admissible evidence.  The Full Court found – how can someone be convicted of breaching a condition of their licence when their current licence is never proven?

McHUGH J:   Well, the register was there and the view that the Full Court took was that the register was what mattered and the fact that there is no notation on the licence was irrelevant and they pointed out some practical reasons why that might be so.

MR RODDAN:   Which are fundamentally flawed as a result of subsequent amendments to the Firearms Act which crystallised the position and leave the Full Court’s decisions in serious doubt.  Subsequent to this case, the Firearms Act was amended and those amendments now take into account and give the Commissioner the right to revoke a licence that has been issued because of procedural or administrative error.

So, it is probably an unusual point to raise but the question that perhaps arises in that event is, is the subsequent amendment to the Firearms Act of any relevance to the Full Court’s decision and can it have an effect on the Full Court’s decision.

McHUGH J:   And the answer to that is, no, as a matter of principle.  The law will be governed by what is in the amendment and what the Full Court said about it.  If it is inconsistent with the amendment, it is irrelevant.

MR RODDAN:   Very well, your Honour.  I have a strong suspicion I may be flogging a dead horse and I think I may be best advised to go home.

McHUGH J:   Your judgment is as shrewd as your argument is eloquent, Mr Roddan.

McHUGH J:   Thank you, Mr Roddan.

This case has been well argued by Mr Roddan but, in our view, it involves no point that would justify the grant of special leave to appeal.  In addition, we see no reason to doubt the correctness of the decision of the Full Court on the material that was admitted into evidence before the magistrate.

MR RODDAN:   Thank you, your Honour.

AT 3.45 PM THE MATTER WAS CONCLUDED