Sams v The Director of Public Prosecutions & Ors; Sams v The Queen

[1989] HCATrans 86

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S49 of 1988

B e t w e e n -

ROBERT STEPHEN SAMS

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

THE DISTRICT COURT OF NEW SOUTH WALES

Second Respondent

THE ATTORNEY-GENERAL OF NEW SOUTH WALES

Third Respondent

Office of the Registry

Sydney No S34 of 1989

Sams

MASON CJ
BRENNAN J
GAUDRON J

B e t w e e n -

ROBERT STEPHEN SAMS

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

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TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 APRIL 1989, AT 12.01 PM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:  May it please the Court, in each of these

applications I appear with my learned friend,

MR A.M. MARTIN. (instructed by Andrews)

MR K. MASON, QC, Solicitor-General for the State of New South

Wales: And I appear with my learned friend,

MR P.I. LAKATOS, for the first and third respondents

in the civil matter, and the respondent in the criminal

matter, the second respondent in the civil matter

being a submitting party. (instructed by

Solicitor for Public Prosecutions.

MR JAMES:  May it please the Court, the reason why there are

two applications is that the first application was

brought prior to the insertion in the CRIMINAL APPEAL

ACT of New South Wales of section SF which gave

jurisdiction to that court to determine appeals on

interlocutory applications. That had, in fact,

occurred subsequent to the application being filed

in this Court, and in the light of that matter
the questions that arose primarily in the judgment

of the majority in the Court of Appeal concerning

jurisdiction had been dealt with by the legislature.

Consequently, an application was made to a trial judge

to found a basis for the appeal to the Court of Criminal

Appeal and the second matter, the judgment of the

Court of Criminal Appeal, turned, in fact, on the same question as had been agitated in the Court of

Appeal.

Your Honours, the short point that is now left

after the jurisdictional matters have been disposed of is the question of whether the delay which might

trigger or cause prejudice which in this case amounted

to the loss of two witnesses, one in entirety, one

partially in the sense that his deposition was recorded

at cotmnittal and may now be read at trial - whether that

delay of some four years as His Honour Judge Denton found

it to be, arising as it did from no fault on the

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applicant's part and, again, no direct fault on

the prosecutions part but through the circumstances
of the death - the illness and disqualification
of a magistrate was such as to the place an applicant

in a position where he could get a fair trial. In

this case that question was resolved in his favour

in the Court of Appeal by Mr Justice Kirby who, in

our submission, adverted to the true question; the

true question being, in the light of the circumstances

can the applicant receive a fair trial?

GAUDRON J: That is precisely the question that His Honour

Judge Denton adverted to, did he not?

MR JAMES:  There is a sentence in which His Honour Judge Denton

adverts to that.

GAUDRON J: Yes, and there is no sentence which suggests he is

not adverting to it, is there?

MR JAMES:  With respect, Your Honour, at page 12 of the application

book in respect of the Court of Criminal Appeal, No 34,
His Honour raises the issue at line 47:

The question which arises here is the one which has become familiar in these Courts in the last two or three years, as to

whether delay in initiation or continuation

of the proceedings here has brought about a

situation in which the Accused cannot be

regarded as likely to have a fair trial.

The argument essentially which is put is

that to proceed further with the matter would

amount to an abuse of process, and that

therefore the proceedings should be permanently

stayed.

That is how His Honour opens that inquiry. And then

at page 17 is the passage to which I apprehend

Your Honour is adverting, commening at - - -

GAUDRON J: Line 10 or thereabouts.
MR JAMES:	Your Honour, we would commence a little earlier

and, indeed, at the bottom of page 16, in the last

three lines because what His Honour says at the

bottom of that passage at page 17 has to be considered

in the light of what he said about delay, and that is:

Overall although there has been delay,

as I see the matter, the system plus a

series of unfortunate accidents, has been

the reason for it. The system is of course,

within the control of governmental

authorities and the failure of the system

to bring about reasonably prompt procedure

is something for which public authorities

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have to take responsibility. But the

weight which such a situation has in my

determination is very much less than

deliberate conduct or acquiescence in

delay on the part of the Crown would have.

When there is added to this failure of the system, or rather defects in the system, the series of unusual accidents which

occurred here to my mind it is quite

impossible to say that any delay which has

been occasioned by prosecuting authorities,

was unjustified.

And in that context His Honour proceeds to go on to

the next sentence:

Even of course justifiable delay can bring about unacceptable prejudice and I have to weigh up the actual existing prejudice

which as I see it, is mainly the absence

of Mr Miller, although I have not failed to

take into account other matters.	The absence
of Mr Miller has indeed weight.	But not I

think sufficient to require me or to

justify me in taking the step of requiring

the Crown to cease its prosecution in these

proceedings. So I reject the application.

In essence, it is our submission that what His Honour

is saying there is because the delay was unjustified

the absence of Mr Miller has such less weight that

when it comes to the consideration of the question

of whether the accused can get a fair trial, _it does

not tip the balance.

Now, in our submission, in this sort of analysis

the question of justification really does not have

much room to play. It would have in an abuse case,

as Mr Justice Kirby pointed out in the minority judgment
in the Court of Appeal. It would have if the delay

produced some tactical advantage to the Crown which

it sought. In this case, the fact that the Crown

did not seek a tactical advantage but that the witness

was killed fortuitously leaves the coincidence of events
such as to place the accused in such a position that he
cannot call evidence which the Court of Appeal and the
Court of Criminal Appeal were prepared to accept
was critical evidence which evidence is not challenged

as a matter of truth and which, on one analysis, should

properly have been called in the Crown case.

GAUDRON J: And in respect of which arrangements have been made

for versions of it to be admissible.

MR JAMES:  No, Your Honour, in respect of which the Crown is

prepared to allow the tender in the defence case of a
general preliminary statement and in respect of which,

in respect of section 409, the Crown is prepared to

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allow the defence to read out the deposition. That

will compel the defence to submit itself to an

unusual mode of trial and in addition to that, of course,

the general rule is it is for the Crown to call all

relevant and material evidence on these issues.	Now,
the plain fact of the matter is nobody can call

Mr Miller now and it is sought that the trial proceed

not only with the tender of the record of interview,

which is challenged, which the magistrate, albeit, on

an incorrect basis of onus and standard, rejected,

but also to proceed in the absence of a material

witness who was so material in the judgment of all

parties that it has to be weighed as a critical

feature of the defence.

At the end of the dai it is of course,

open to a court of crimina appeai under the wide corrnnon

form statute to have regard to any other matter which

might occasion a miscarriage of justice but it could

be in no better position than the position this Court

is in and that a trial judge has been in. I could

indicate further in relation to this matter that the
decision of the Court of Criminal Appeal did not give

the applicant the review to which he was entitled.

That arose because of the view taken by His Honour from the earlier decision of His Honour Judge Denton.

So that the first application to the Court of Appeal

founded on jurisdictional grounds essentially in the

judgment of the majority. The second application, the

application to the Court of Criminal Appeal, has

essentially founded on that question of unjustifiable

delay.

Under section SF, the applicant was entitled to

have the Court of Criminal Appeal determine for itself

the question of whether a fair trial could be had
and it has not done so in the course that it has taken

following His Honour Judge Shadbolt and following the

judgment of the Court of Appeal.

raises a question of general importance not only as tour Honours, this question, in our submission,	to the question of the event of a fair trial but also
as to the role the Court of Criminal Appeal should
pursue under section SF of the CRIMINAL APPEAL ACT.
This Court has granted special leave in two matters
which are reserved in the Court in JAGO and GRASSBY
concerning that question of the effects of the new
doctrines of abuse of process or necessity to ensure
a fair trial and this case very squarely raises a
particular aspect of that. Indeed, it goes so far as
to raise an aspect which in the United States has not
only triggered the speedy trial clause but also the due process clause. In our submission, the necessity
for a fair trial is something that does not turn on the question of whether the Crown can be said to be at

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fault or otherwise but involves much wider considerations

and this case, as a special leave vehicle, in our

submission, raises precisely that. It may well be that it would be necessary following a decision of this Court for a further application to be brought

to a trial judge, but that, in our submission, should

not deprive the applicant of obtaining a ruling as

to the breadth of the principle and that he has been

unable to do except in terms of those terms of
unjustifiable delay.

Your Honours, I could take Your Honours to the

various passages in the judgments but from the point of
view of this application, the real question is the

matter that has been raised with me by Justice Gaudron

which i& is it a suitable vehicle in view of the findings

of His Honour Judge Denton. And as to that we can say

two things: firstly, that matter was not relied on

in the Court of Appeal where it seems that not only

did Mr Justice Kirby, speaking in the minority, reach

the view that, in fact, that was a judgment that turned

upon His Honour's view of unjustifiable delay but

also it is not to be found in the judgments of

Their Honours Justices Samuels and Mahoney.

Mr Justice Mahoney turned peculiarly on the question of

his view of jurisdiction and the review process in the

Court of Appeal, the supervisory role an~ really,

so also did Mr Justice Samuels. Whilst Mr Justice Samuels

did say - and perhaps I should take Your Honours to

page 19 of the application bock,, S49, in the passage

that cotmnences at line 18 - perhaps I should refer

earlier to the passage cotmnencing at line 4:

I will refer, in the same order as I

have mentioned them, to the complaints made

in the first two of the arguments advanced

by the claimant. It is said that the

learned judge failed to give proper weight

to the loss of Mr Millar's evidence. I need

only say that I can see no ground for this.

His Honour clearly understood the importance

of the evidence and took it into account in

reaching his decision. The same may be

said of his treatment of the inability of

Mr Sams to give evidence. It is not a

question, I must emphasise, of whether I
or other members of the court agree in every
respect with the conclusion to which the

judge came, but whether we can find in the

judgment an error of the kind which I have

endeavoured to describe. I cannot see any

error of that sort in either of the respects

I have mentioned.

Then it is submitted that his Honour

went wrong in the way in which he referred

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to whether the delay was unjustifiable,

and in making what is said to be an inadmissible

distinction between deliberate and

non-deliberate delay. This in my view

raises a question of some difficulty but is

one in which I have arrived at a firm answer.

It is true that the jurisdiction by which

this court terminates criminal proceedings

because, if they continue, they are likely

to or will entail unfairness, is in no

sense designed to punish the Crown or to

produce any kind of unsolicited reward for

the defendant. The purpose is simply to

maintain the fairness of our system of

administration of the criminal law so far

as that end can be attained.

Nevertheless the injustice which is to

be prevented, that is the abuse of process

constituted by an unfair trial, must be

produced by delay which cannot be justified

or excused. In my opinion there must be an

element of fault, in the sense of the

Crown's failure to discharge its procedural

obligations.	One need only consider this
example.

And His Honour goes on to say, at line 18:

On one view one could say that as a result

of that he can no longer have a fair trial

in the sense that he is no longer able to

bring to his defence all the elements which

were once available to him before the

untimely intervention of providence. But I

do not think one could say that it was a

case in which this jurisdiction should be

exercised. It would be an unfortunate case.

Whether there are any means known to the law

to justify intervention of some kind I do not

know.	I do not think, however, that it
would be a case in which a permanent stay of

the kind here in contemplation could be

ordered.

And, Your Honours, that raises, in our submission,

firstly, that the Court of Appeal were not of the

view that His Honour had decided the critical

question of fact in relation to weight and raises

squarely the proposition, which is repeated in the

judgment of the Court of Appeal, when they turn to

Mr Justice Samuels' judgment at page 37 of the application book, this is in the passage cited:

"Nevertheless the injustice which is to

be prevented, that is the abuse of process

constituted by an unfair trial, must be

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produced by delay which cannot be justified

or excused. In my opinion there must be an element of fault, in the sense of the Crown's failure to discharge its procedural

obligations." -

repeats the central matter of the point and it is not

done on the basis that His Honour considered that,

considered the loss of the evidence and considered

that he could have a fair trial.

GAUDRON J:  Of course, the issues by the time the matter was

in the Court of Criminal Appeal were really quite

different from the issues in the Court of Appeal.

MR JAMES:  But that is not how the Court of Criminal Appeal

treated it.

GAUDRON J: That may be so, that is not how the Court of Criminal

Appeal saw it, but it does not mean that an analysis of

the case will bring about an analysis of the issue

which you want to ventilate.

MR JAMES: It may, Your Honour. Indeed, it could be put as an

alternative.

GAUDRON J:	The issue you wish to ventilate may never arise.
MR JAMES:	Your Honour, it could be put that, in fact, the

Court of Criminal Appeal did not really consider
the question for itself, that His Honour Judge Shadbolt

did not really consider the question - - -

GAUDRON J:  No, but the question - I mean, the question raised by the

criminal appeal is not whether they did or they did

not but whether he should - whether Judge Shadbolt

should or should not have.

MR JAMES:	Yes, and on those questions, we would submit he had a duty to consider the matter for himself as did
the Court of Criminal Appeal.
GAUDRON J: That is not the matter you wish to ventilate

though, is it?

MR JAMES:	No, but it raises and throws up the matter we wish to ventilate which is that plain point colillD.on at
all points here that unjustifiable delay is the fount
of the relief.
GAUDRON J:	Of course, that proposition that you say, when you say

he should have, and presumably it must be open to the an accused person has got a stay, to go and find a

judge who will hear it. An extraordinary proposition

both ways, I should think, that either the Crown or

an accused person can go around throughout the district

court until such time as it finds a judge who will or

will not hear it.

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Sams

MR JAMES:  No, Your Honour, we would not submit that that is the

case.

GAUDRON J: 

No, of course you would not.

MR JAMES: 

And, indeed, we would not submit that an accused

person has the right to make contiuing applications
for a stay.

GAUDRON J: Well then, I do not understand what was happening

before Judge Shadbolt.

MR JAMES:  What was happening, Your Honour, was that the

circumstances had changed to a certain extent before

His Honour Judge Shadbolt. But the point before

His Honour Judge Denton was he was never the trial
judge; indeed, he did not even have an indictment.

The Crown would not present an indictment.

GAUDRON J: All right, then the consequence of that might

be that there is no decision one way or another.

MR JAMES:  It could well be and, indeed, it may be that we have

to go to a trial judge again.

GAUDRON J:  If you wish to pursue it, but do not all these

problems that are coming forward show the real

difficulty of dealing with this matter in this form?

MR JAMES:	With respect, Your Honour, no, because at every point has been thrown up that one matter that it is necessary to show the Crown's delay as unjustified notwithstanding
the actual and critical prejudice you may have suffered
before you can succeed on an application. To go back,
there having been two rulings, one of the Court of
Appeal and one of the Court of Criminal Appeal, is to
necessitate that the process will have to start and
run all over again just as Mr Handley's "snakes and
ladders" suggestion as made this morning occurred: we
will have to go through it again and we will throw up
exactly the same proposal because unlike Mr Handley's
never come back, and we have a clear and plain problem case, this one could never be moot, this witness can
and a direct expression of principle on a matter of
general importance, that being whether the delay is unjustified or whether the unjustifiable delay is the triggering mechanism or whether the question, at bottom,
is whether you can have a fair trial and that the
important duty is to consider that in the light of all the circumstances.
Now, normally, I would be happy to accept what Your Honour puts to me; we should go back and make a
further application - - -

GAUDRON J:  I do not say that at all. I have not put that to you,

Mr James. I have said that the consequence of your

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submission was that either the accused or the defendant could do that. I have not suggested that anyone should

do that.

MR JAMES:  No, I have misstated it. Your Honour has put that

lying in the way of this application is the problem

that there may not, in fact, be a decision as sufficient

foundation.

GAUDRON J:  If you wish to pursue a certain submission?

MR JAMES:  Yes. But, in our submission, no matter how one looks

at it, this question is thrown up and thrown up in a

way that is not merely hypothetical but in a way that

is absolutely critical and, in those circumstances,

there is enough of a foundation there, in this case,

because it attracts those statements of principle

which are effectively binding on courts in New South

Wales, in the criminal hierarchy and in the civil

hierarchy. That is as far as I can take the

proposition. Unless the Court would wish to hear me on

other matters, they are the submissions we would make

in support of the application.

MASON CJ:  Thank you, Mr James. The Court will take a short

adjournment now in order to determine the course

it will take in this matter.

AT 12.24 PM SH0RT ADJOURNMENT

UPON RESUMING AT 12.31 PM:

MASON CJ:  The Court need not trouble you, Mr Solicitor.

Assuming for the purposes of these applications courts below to make an order for a permanent stay of that there was jurisdiction in one or other of the

a criminal trial, it is difficult to envisage a case

founded on delay which is not attributable to the

conduct of either party which could warrant the grant

by this Court of special leave to appeal from a refusal

of the stay. The lengthy delay which is necessarily

involved in the exercise of the jurisdiction of this

Court is wholly unacceptable in the ordinary administration

of the criminal law where any delay occasioned by the pursuit of appeals from interlocutory decisions is to

be strongly discouraged.

The applicationsfor special leave to appeal

is refused.

MR MASON:  In the civil application, I ask for an order for

costs, Your Honour?

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MASON CJ: Yes. What do you say to that, Mr James?

1:1R. JAMES:  The only matter I can put in response to that,

Your Honour, is that that was in those days the
only avenue of a criminal nature and it was brought
as though there was the criminal jurisdiction that

now exists. In our submission, it should be treated

as in a criminal application for special leave

would have been treated.

MASON CJ: There will be no order for costs.

1:1R. JAMES:  May it please the Court.

AT 12.33 PM THE MATTER WAS ADJOURNED SINE DIE

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