Rogers (No 1) v The Queen; Rogers (No 2) v The Queen

[1993] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S223 of 1992

B e t w e e n -

GRAHAME ANDREW ROGERS (NO 1)

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S224 of 1992

B e t w e e n -

GRAHAME ANDREW ROGERS (NO 2)

Applicant

and

THE QUEEN

Respondent

Directions hearing

MASON CJ

(In Chambers)

Rogers 1 3/6/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 3 JUNE 1993, AT 10.20 AM

Copyright in the High Court of Australia

MR A.M. MARTIN:  Your Honour, I appear for the applicant.

(instructed by Hovan & Co).

MRS. KAVANAGH: Your Honour, I appear for the Crown. (of

the New South Wales Director of Public

Prosecutions)

MR MARTIN:  Your Honour, there is also a related matter of

Grahame Andrew Rogers, the same applicant, (No 2).

In relation to Rogers (No 1), a difficulty arose

which has only very recently been resolved, and it

arose in this way: it was said that there was an

error of fact incorporated in the judgment of the

Court of Criminal Appeal. Several senior counsel were consulted as to whether or not there was any

means of bringing the matter back before the Court

of Criminal Appeal in order to rehear the matter,

correcting that error of fact. The advice that has

been received by my instructing solicitor is that

there is no such procedure.

In relation to Rogers (No 2), there has been a

delay simply because, whilst basic

documentation -

HIS HONOUR: Let us deal with Rogers (No 1) first of all.

Now, before you say anything more, can I point out

to you that the application for special leave to

appeal was filed on 17 December.

MR MARTIN:	Yes, Your Honour.
HIS HONOUR:	Something designated as an affidavit in support

of an application for special leave to appeal was

filed on the same day. All that affidavit stated

was:

I am a solicitor of the Supreme Court of New

South Wales and I have carriage of this

matter. I advise that the grounds and

submissions of the application for special

leave have not been finalized by senior

counsel.	I seek leave to file same at a later
stage.	I also seek leave at this time to

lodge the application in its present form.

Rogers 2 3/6/93

Now, nothing has happened.	A majestic silence has
been maintained since 17 December 1992.	What is

more, the Registry has phoned Mr Hovan, your

instructing solicitor, on a number of occasions.

On 4 February Mr Hovan answered the call and said

that counsel had been away; on 3 March the Registry rang again and left a message to which Mr Hovan did not deign to respond; on 5 March, again a message

was left that elicited no response; likewise, on

29 March and, again, on 6 May.

Now, what explanation have you been instructed

to provide in relation to the failure of Mr Hovan
to communicate with the Registry in response to

repeated requests?

MR MARTIN:  I have been provided with no explanation in

relation to that response, Your Honour. My

instructions are that Mr Hovan's difficulty has

been obtaining necessary documentation from counsel

who has been briefed to settle such documentation.

HIS HONOUR:  When were the instructions delivered to counsel

to settle the appropriate documents?

MR MARTIN:  I do not know the precise date, Your Honour, but

I understand at a date in December shortly after

the application was filed.

HIS HONOUR:  Should not the matter be taken away from the

counsel to whom instructions have been given and

given to another counsel?

MR MARTIN:	Your Honour, that has been done.
HIS HONOUR:	That has been done?

MR MARTIN: Yes, Your Honour.

HIS HONOUR:	When was that done?
MR MARTIN:	On 1 May, Your Honour.
HIS HONOUR:	1 May?

MR MARTIN: Yes, Your Honour.

HIS HONOUR:  Why has not that counsel settled the documents?

MR MARTIN:  Your Honour, I cannot answer that question. I

can advise this, that I am instructed that were the

Court to require the documentation to be lodged

within a fixed period of time from this date, that

would be complied with.

HIS HONOUR:  It seems incredible to me that the Court has to

go to this trouble in order to procure a situation

Rogers 3 3/6/93

in which necessary documents are filed in Court.

It seems to me that if what you have told me is

correct it is a matter of ascertaining the name of

some counsel who is prepared to accept

instructions, settle documents promptly, and I

would have thought that if counsel has failed for

five months to settle documents in a criminal

special leave application then that is a matter

that ought to be drawn to the attention of the Bar

Council.

Now, it is not your fault, Mr Martin, but,

again, I would ask you to convey to your

instructing solicitor my extreme displeasure at the

dilatory attitude that has been displayed in

connection with this application.

Now, what undertaking are you prepared to

give?

MR MARTIN:  Your Honour, that the necessary documents and

outstanding documents in relation to Rogers (No 1)

will be filed within 14 days of today's date.

HIS HONOUR:  And that otherwise there will be strict

compliance with the rules of the Court and the

relevant practice direction.

MR MARTIN:	Yes, Your Honour.
HIS HONOUR:	You give an undertaking to that effect?

MR MARTIN: Yes, Your Honour.

HIS HONOUR:  Now, Mr Kavanagh, have you got anything to say

about this?

MR KAVANAGH:  Your Honour, at this stage we have not been

served with the application.

HIS HONOUR: For special leave?

MR KAVANAGH: That is correct, yes.

HIS HONOUR:	What is the explanation for that, Mr Martin?
MR MARTIN:	Your Honour, simply an omission.
HIS HONOUR:	Simply an omission?
MR MARTIN:	Your Honour, I might say in relation to this

matter I have the necessary documents here to

provide to my friend, copies of the application.

Yes, my understanding, it was simply an omission, a

misunderstanding of what was required in that

regard.

Rogers	4	3/6/93
HIS HONOUR:	I am just at a loss to understand it.	You are

happy with the course marked out for the future,

Mr Kavanagh?

MR KAVANAGH:	Yes, I am happy.
HIS HONOUR:	That seems to be the best we can do in the

circumstances.

MR KAVANAGH:	I think so, Your Honour, yes. Perhaps I could ask for a specific direction that not only will the
documents be filed but actually served as well.

HIS HONOUR:  Yes. You might inform your instructing

solicitor there is an obligation to serve documents

as well as file them, Mr Martin.

MR MARTIN: That has already been indicated, Your Honour.

HIS HONOUR:  Your undertaking will, I take it, extend to

service as well as the filing?

MR MARTIN:	Yes, Your Honour.
HIS HONOUR:	Very well, the matter will be disposed of on

that basis. Now, No 2 - - -

MR MARTIN:	Rogers (No 2), Your Honour
HIS HONOUR:	is the story better here?

MR MARTIN:  The story is identical, Your Honour. In respect

of Rogers (No 2) I am prepared to make the same

undertakings on the same basis.

HIS HONOUR:  Do you have any comment, Mr Kavanagh?

MR KAVANAGH:  No, Your Honour. The position is identical.

We have not been served.

HIS HONOUR:  Yes, they really arise out of the same

transaction.

MR KAVANAGH:	Yes, they do.
HIS HONOUR:	Very well.  Well, that will be disposed of on

the same undertakings as you were prepared to give

in Rogers (No 1).

MR MARTIN:  Your Honour, and I might indicate that those two

matters can be conveniently dealt with together.

Rogers 3/6/93

HIS HONOUR:  Yes. I take it you are authorized by your

instructing solicitor to give those undertakings?

MR MARTIN:  Yes, Your Honour.

AT 10.29 AM THE MATTER WAS ADJOURNED SINE DIE

Rogers 6 3/6/93