Rogers v The Queen

[1994] HCATrans 465

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A26 of 1994

B e t w e e n -

PHILLIP WAYNE ROGERS

Applicant

and

THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ TOOHEY J McHUGH J

Rogers.P 26/8/94

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 26 AUGUST 1994, AT 2.22 PM

Copyright in the High Court of Australia

MR P.W. ROGERS: If it please the Court, I am the applicant

and I represent myself.

MR S.W. TILMOUTH, QC: If it please the Court, I appear with

my learned friend, MR M. LOFTUS, for the

respondent. (instructed by the Commonwealth

Director of Public Prosecutions)

MASON CJ:	Yes, Mr Rogers.
MR ROGERS:	Your Honour, information has come to me today.

It is such information as I feel that in the light of that information I should make an oral application to have this matter before the High

Court adjourned until further notice.	I will go
into the explanations of that.

MASON CJ:  Have you told Mr Tilmouth about this application for adjournment?

MR ROGERS:  I do not think he would know, Your Honour. I am

not sure. I will go into the explanations.

MASON CJ:	Anyhow, you tell us.
MR ROGERS:	Under section 69(3) of the Judiciary Act 1903, I

made an application to the Commonwealth

Attorney-General for Commonwealth legal aid. This

matter went before Justice Duggan of the Supreme

Court of South Australia in the criminal

jurisdiction and he certified that I was without

adequate means for my defence and that legal aid

should be granted. The Commonwealth

Attorney-General has given aid for my defence at

trial only. They will not give legal aid in regard

to the constitutional point, what they call the

preliminary constitutional point.

I feel that the defence - this is part and

parcel of my defence.

represent me at trial, but of course, until the I have instructed counsel to

trial happens you are not really involved, and he

certainly is not involved on the constitutional

issue.

My instructed counsel today informed me that

he had spoken to the respondent's counsel,

Mr Tilmouth, and that their view was that because

it raised an important question of law, namely, on

the Constitution, that if this Court gave leave

leave on this application so that the
constitutional aspect could be argued, they would

not oppose myself being granted legal aid for that

event.

Rogers.P	26/8/94
TOOHEY J:	But you seem to be implying, Mr Rogers, that

unless this application is granted, you will have no opportunity to argue the constitutional point,

but if the application is refused you still have

your argument before other courts unless and until

the matter reaches this Court.

MR ROGERS:  Under the section 40, Your Honour, it states

that I would have to remove the cause before a

final judgment is made in the matter. If I am not

successful with this application, then it would be

set down for trial and that would be basically the

end of the constitutional point as I see it.

McHUGH J:	You can take the point at the trial, and if you are convicted you can take the point in the Court of Criminal Appeal or by way of a stated case to
the Full Court.

MR ROGERS: The point I make, Your Honours, is this: that

if the respondents do not oppose myself having

legal aid on the constitutional argument, then I

would see no reason why they would oppose such an

application so that I can be properly represented

for this application. After all, I am a layman. I

have no legal standing, and on that basis I would

like proper representation even on this particular

application.

MASON CJ: But you are asking for an adjournment with a view

to obtaining legal representation if you can get
legal aid so you can be represented in this

application on the adjourned date. That is what

you are asking for?

MR ROGERS: 

Your Honour, bearing in mind the attitude of the

respondents, I think the Commonwealth
Attorney-General would possibly grant it, because

even Justice - - -

TOOHEY J:  Just a moment. You seem to be confusing two

things, Mr Rogers: one is your opportunity to argue

the constitutional question which could arise at
trial; if unsuccessful, could arise by way of
appeal to another court before any question arises

of it reaching this Court. But your application

today is designed to remove the constitutional

question directly into this Court. If that

application is refused, you are not deprived of

your opportunity to raise the constitutional point.

MR ROGERS:  As I said, I am a layman. I do not have a legal

standing, and I believe a legal representative

could do a better job today or at any time on this

application than what I could do. But bearing in

mind now the respondent's attitude, I feel the

Commonwealth Attorney-General would come across.

Rogers.P 26/8/94

Even Justice Duggan felt that my defence

incorporates the constitutional point and he could

not see any reason why the Attorney-General would

not give aid to that.

MASON CJ: Well, we had better find out what Mr Tilmouth's

attitude is. Mr Tilmouth, what do you say in response to what Mr Rogers has said about the

possible attitude of the Attorney-General.

MR TILMOUTH:  Of course, I do not represent the

Attorney-General, if the Court pleases. It is the

Director. I think it is fair to say the Director's

attitude would be if the Court thought this point
was reasonably arguable, and therefore gave special
leave, then there would clearly have to be a

reconsideration as to whether the applicant was

entitled to legal assistance.

MASON CJ:  But the application before us is for removal, not

for special leave.

MR TILMOUTH:  That is true, although it is sometimes argued

that similar criteria must be shown before there is

removal. Our argument at the moment is that the

point is not sufficiently arguable to justify

removal, and it is premature in any event. In our

submission, Your Honours can see Justice Duggan

dealt with this matter over a year ago. At page 4

of the application book it was argued virtually a

year ago, and it would be inappropriate to adjourn

it at this time.

MASON CJ:  Yes, thank you. Mr Rogers, the application for

an adjournment is opposed. In the circumstances,

we see no point in adjourning the application and
you should proceed now to put to us whatever

arguments you have in support of the application

for removal.

MR ROGERS:  Fair enough, Your Honour. I would like to point

out to Your Honours that the applicant has complied with section 78B of the Judiciary Act 1903, and has

certified letters written to all Attorneys-General

on 20 July 1994. The response I have received from

all Attorneys-General is that they do not wish to

intervene in the matter. So I have complied with

that section.

According to section 40(1) of the Judiciary

Act 1903 -

part of a cause arising under the

Constitution -

that is, pending in a State court -

Rogers.P 26/8/94

may be removed into the High Court under an

order of t"he High Court ..... at any stage of

the proceedings before final judgment -

and this is the point, of course, I have made

already. The applicant is being sued by the

Commonwealth, and section 75(iii) of the

Constitution confers on the High Court original

jurisdiction in matters where a person is being

sued by the Commonwealth. And, of course, the

applicant is being sued by the Commonwealth Director of Public Prosecutions for alleged

breaches of section 24(1) and (2) of the Financial Transaction Reports Act 1988, which are indictable

offences against the laws of the Commonwealth.

In section 76(i) and (ii) of the Constitution

it allows the Commonwealth Parliament to -

make laws conferring original jurisdiction on

the High Court in any matter -

Arising under the Constitution .... . or arising

under any laws made by the Parliament.

The Commonwealth Parliament by way of section 30(a)

of the Judiciary Act 1903 confers on the High Court

original jurisdiction -

in all matters arising under the

Constitution -

and the applicant submits that section 24(1) and

(2) and also section 18 (1) (b) (i) (ii) of the

Financial Transaction Reports Act 1988 are

Commonwealth laws which are constitutionally
invalid being beyond the legislative powers of the

Commonwealth Parliament conferred on it by

section Sl(ii) of the Constitution, that is, with

respect to matters of taxation.

The applicant further submits that the

judgment of Justice Duggan which was delivered on 6 September 1993 is wrong at law and did not take

into account any submissions with respect to

section 18 of the Act which deals with safety deposit boxes. Justice Duggan finds that the provisions of section 24 are incidental laws with

respect to taxation and so valid. He finds that in

the application book at page 8 lines 1 to 5.

The applicant would submit that these

provisions are too remote from the subject of

taxation and should be characterized as laws with

respect to contracts, not taxation, as they seek to
regulate the conduct of persons when opening and

operating accounts with various institutions

Rogers.P 26/8/94

defined in the Act under the interpretation of a

"cash dealer". Consequently, the constitutional

points, I believe, should be resolved by the

highest court in the land, namely, the High Court,

having been conferred with this original

jurisdiction in all constitutional matters.

I would like to make submissions as regard to

criteria. The criteria to be considered by the

High Court in relation to an application under

section 40 of the Judiciary Act would probably be
in similar terms as the criteria expressed in

section 35A of the Judiciary Act relating to

applications for special leave to appeal. The

applicant is not sure on that, but I would imagine

that possibly it may be similar in criteria.

McHUGH J:  One important distinction between the two

provisions is that when the Court is exercising its
powers under section 35 to grant special leave, it

invariably has the benefit of judgments of the

highest court in the State or the Full Court of the

Federal Court; whereas here, you have a judgment

of~ judge at first instance, the matter has not

gone to the Full Court, and so we lack the

assistance to which we are entitled to get from a

considered judgment of the highest court of a State

or the Federal Court. That is not fatal, but - - -

MR ROGERS:  In other words, Your Honour is saying that you

basically have a wide discretion in which to either

accept or reject.

McHUGH J:  We certainly have a wide discretion, Mr Rogers,

but that is a factor that weighs against you. It

is not decisive, but it is a distinguishing feature

in the special leave situation.

MR ROGERS:  I was going to incorporate some of this criteria

which I felt may be beneficial to my submissions if

I can do that. That particular section, 35A(a),

reads: 

whether the proceedings in which the judgment
to which the application relates was

pronounced involve a question of law -

(i) that is of public importance, whether

because of its general application or

otherwise -

It is my submission that the judgment of

Justice Duggan sitting in the Supreme Court of

South Australia criminal jurisdiction does involve

a constitutional question of law, which by its

general application is of public importance. This

public importance is two-fold: firstly, the

Rogers.P 26/8/94

provisions contained in section 24 of the Financial

Transaction Reports Act 1988 currently affect every

member of the public in Australia, and others who come under the Act's umbrella who want to open or

operate an account with so-called cash dealers as
point check as to their identity when opening an account. If the provisions are found to be invalid

expressly stated in the Act's interpretation.

it will be of the utmost importance and interest to

the public as a whole.

Secondly, the taxpayer's money amounting to

some $6000 or more would be saved if the provisions

are found to be invalid as there would be no need

for the applicant to have legal aid from the

Commonwealth Attorney-General's Department for his

defence at trial, and expense incurred as a result

of the trial itself.

The Judiciary Act also mentions that whether

the proceedings in which the judgment to which the
application relates was pronounced involve a
question of law in respect of which a decision of
the High Court as a final appellate court is
required to resolve differences of opinion between
different courts or within one court as to the

state of the law. Again, the judgment of

Justice Duggan involves a constitutional question

of law - - -

MASON CJ:  Yes, but there is no conflict of opinion or

conflict of decisions about it.

MR ROGERS:  From his point of view?

MASON CJ: Different courts or the same court.

MR ROGERS:  No, that is true, Your Honour. I will just

rephrase - I lost my train of thought there.	The
judgment of Justice Duggan involves a
constitutional question of law, and the High Court

having been conferred with original jurisdiction in

all constitutional matters, should, I believe, be
the final decision-maker with respect to this

matter. Although the High Court, by removing part

of the cause, would not be sitting as an appellant

court, but more a court of review, it would

nevertheless resolve a difference of opinion as to

the state of the law, that is, between myself and

how Justice Duggan sees it. The applicant can only

apply to have removal of part of the cause to this

Court before final judgment. If a final judgment

is made at trial, or even if the constitutional

question of law is reserved for the Full Court of

the Supreme Court, the applicant, if necessary,

will appeal. The applicant submits that if he is

Rogers.P 26/8/94

forced to go in this direction and if the High Court is to have the benefit of analysis of an intermediate court of appeal as is suggested by the

respondent in paragraph 2 of his summary of

argument, then it is just delaying the inevitable

and creating an unnecessary waste of time and

taxpayers' money.

As to the administration of justice, the

applicant would submit that in the interests of the
administration of justice the judgment of

Justice Duggan involving this constitutional

question of law requires consideration by the High

Court so that the matter can be settled quickly.

I would like direction by Your Honour as to

whether I can make mention to some aspects of the

respondent's summary of argument at this point.

MASON CJ:  The one question that concerns us is the matter

that has been raised by Justice McHugh. As an

ordinary rule, this Court requires matters to

proceed through the appellate courts in preference

to this Court removing a matter directly into this

Court. That is the ordinary rule we apply here on

the footing that the Court is entitled to the

benefit of consideration of the question by an

intermediate court of appeal, and although as

Justice McHugh pointed out to you it is not a

decisive consideration, it is a very influential
consideration. To some extent you have dealt with
that in the submissions you have put to us already.

If you have anything else to say about that, that is what you ought to focus attention on.

MR ROGERS:  No, not really. I was not going to make any

more submissions in regard to that aspect.	I was
just going to make comment on some of the

submissions which the respondent had put forward in

their summary of argument, for example, in

paragraph 5 in their summary of argument which is

in Part III and called "Statement of the Argument":

S.24 of the Act prohibits the opening of an account in a false name, and operating an

account in a false name. Each offence

attracts a fine of $5,000.00 or imprisonment

for a period not exceeding 2 years or both,

and may be dealt with summarily upon the

consent of both parties.

The applicant would make a submission there that he

would be deprived of his right to trial by jury

under section 80 of the Constitution if he was to

consent to the matter being dealt with summarily.

In other words, I believe that as a citizen I do

Rogers.P 26/8/94

have a right to trial by jury.	Paragraph 9 of
their argument:

It is submitted that proscribing the opening

and operating of bank and similar accounts in

false names, is so obviously within the

constitutional power conferred bys 5l(ii) of

the Constitution "with respect to

taxation", and incidental to that power
(s 5l(xxxix) of the Constitution) to be beyond

reasonable argument.

The applicant would submit that it is not clear-cut

and it is not beyond reasonable argument.	The
respondent states -

and incidental to that power (s 5l(xxxix)).

"Incidental to that power" is, in fact, referring

to section Sl(xxxix) is incorrect. If referring to

section Sl(xxxix) it should be stated as incidental

to the execution of that power, not simply

incidental to that power. The incidental area of

power is implied in the main head of any

legislative power. The power is conferred within

the head of power which is section Sl(ii). To

uphold a law as incidental to a head of power as

expressed in the taxation power itself, it is

necessary to apply the principles of implied

incidental powers which, I believe, the respondents

have tended to overlook.

In paragraph 10 they make the comment that

it -

demonstrates that the law is clearly one with

respect to taxation -

but in the applicant's submission, the law is not

clearly one with respect to taxation. If the

respondent is so positive, why add the content of

paragraphs 11 and 13 of their argument in relation

to the banking power and currency power? These two

powers were not raised or argued by the respondent

before Justice Duggan. This is the first time in

which these powers have been mentioned by the

respondent as an additional source of legislative

power. In summing up my submissions,

Your Honour -

MASON CJ:  There is no need to sum up. We understand the

argument that has been presented, and your time has

expired, Mr Rogers.

MR ROGERS:	Thank you, Your Honour.
MASON CJ:	Mr Tilmouth, the Court need not trouble you.
Rogers.P	26/8/94

We are not persuaded that the questions

referred to in the notice of motion should be

removed into this Court. To remove the questions

at this stage would deprive this Court of the

benefit of consideration of the questions by an

intermediate Court of Appeal.	The application is
therefore refused.

AT 2.45 PM THE MATTER WAS ADJOURNED SINE DIE

Rogers.P 10 26/8/94