Scott v The Queen

[1994] HCATrans 194

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IN THE HIGH COURT OF AUSTRALIA

Registry No Cl6 of 1993

B e t w e e n -

SAM SCOTT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
GAUDRON J

MCHUGH J

Scott 1 4/2/94

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 4 FEBRUARY 1994, AT 10.37 AM

Copyright in the High Court of Australia
MR A.J. BELLANTO, QC: May.it please the Court, I appear

with my learned friend, MS V.J. WEBSTER, for the

applicant. (instructed by Snedden Hall & Gallop)

MR K.J. CRISPIN, OC:  May it please the Court, I appear with

my learned friend, MR J.V. AGIUS, for the

respondent. (instructed by K.J. Crispin, QC,

Director of Public Prosecutions (Australian Capital

Territory))

DEANE J: Yes, Mr Bellanto.

MR BELLANTO: If the Court pleases. These submissions

expand upon the summary of argument previously

filed in Court. This application involves the

nature and extent of the pre-trial jurisdiction of

the Supreme Court of the Australian Capital

Territory. In circumstances where there has been a

committal for trial, a transmission of the relevant papers to the registry of the supreme court and the case management procedure commenced, a call-over

and trial date fixed and a draft indictment

forwarded to the defence, but where shortly prior

to the trial date the OPP declined to proceed

further under section 7(6) of the DPP Act of the

ACT.

May I at this juncture take the Court to a

brief factual summary in addition to the material

in the written outli~e of argument. Walsh, the

witness concerned, pleaded guilty and was sentenced

on 16 May 1991 in respect of the armed robbery and

stealing charges. He gave evidence to the ICAC in

New South Wales on 16 July 1991 in a public hearing

and that evidence was widely published in the

media. The draft indictment was forwarded to the

solicitors for the applicant on 3 September 1991

and the call-over was on 2 December 1991.

page 12 line 5, referred to the fact that Walsh had The learned trial judge, at application book

been known since he gave evidence at the Winchester

inquest to the police as an untruthful and

inconsistent witness and His Honour also found that

this information was known by the OPP as at

28 February 1992, when Detective Kennedy gave

evidence before the coroner at the inquest into the
death of the Assistant Commissioner Winchester.

His Honour also found at page 12, line 25 of the application book:

that the strength of the prosecution case

could have been evaluated much earlier than it

was -

Scott 4/2/94

and, as the Court would be aware the ICAC hearing

was some five months before the call-over when the

trial was fixed for hearing.

The question of importance in this application

is really the nature and extent of the supervisory

jurisdiction of the supreme court.

GAUDRON J: But, that question only arises if you get passed

the relevant section of the Supreme Court Act about

costs, does it not?

MR BELLANTO: Subsection (3), Your Honour?

GAUDRON J: Yes.

MR BELLANTO: Well, subsection (3) refers to the nature and

practice, or the nature of a criminal cause or

matter, and refers to the practice and it was the

practice that was the subject of considerable

argument in the Full Court of the Federal Court.

But, the early cases as to what was the practice -

and most of the modern authority really is based

upon the situation of a trial verdict of acquittal

and then an application for costs. There is not

much authority, particularly in the early cases

where post-committal pre-indictment proceedings

have been considered, and it is our respectful

submission to Your Honours that this is an area

that requires consid~ration and clarification

because - - -

DEANE J: But, is not your problem - apart from what

Justice Gaudron said to you - this, that if there

is a debatable or a clearly debatable area here it

concerns the proceedings in the supreme court where

I would have thought there may be room for a real

debate about whether in an extreme case costs

should be awarded against the Crown as an assertion

of inherent jurisdiction. But, that would not be

you could say this was an extreme case in the sense	good enough for you in that I simply do not see how
that I have in mind. You would have to really go
further and, as it were, establish that a broad
discretion exists where the Court will, or will
not, order costs against the Crown according to how
it sees things.

Well now, it is there that the point that

Justice Gaudron has raised with you, seems to me, to have very, very great strength, and I only say

that to assist you to identify the problem you face

so far as I am concerned.

MR BELLANTO:  It is really a question of power in the

Supreme Court Act of the ACT.	Section 23(3)
qualifies, of course, subsection (1).	However when

Scott 4/2/94

the statute refers to a practice and that practice

has to be defined or delineated and, as occurred in

the court below, reference was made to the senate
debate - and in that extract that ap~ears in the
appeal book papers - there was a reference to the
practice of not awarding costs being unusual, but

not unknown.

We would argue here that where there is a

hardship falling upon an accused, a financial
hardship, that is a matter over which a court has

inherent jurisdiction to remedy such an injustice,

particularly in circumstances where the prosecuting

authorities were well apprised, and if they were

not they should have been, of the deficiencies in

their case many months prior to call-over. It is

in respect of the inherent power of the court over

its proceedings pre-trial that we say there is such

a power to remedy the injustice. That, really,

goes to the heart of our submission.

We would also submit to the Court that a

matter for argument is the position today in

contemporary Australia where the Crown increasingly

rely upon informers and persons of questionable

credibility as the basis for a case against an

accused person.

In these circumstances, the practice which is

becoming more common should be subject to a costs order if that evidence which is to be relied upon is deficient and sho·u1d have been found to be

deficient well prior to the trial proceedings.	The
consequence of that is that the resources of the Crown can very often be brought to bear on the
position of an accused.	Where the evidence that

the Crown relies upon is deficient the accused is

required to attend trial and then told, "We're not

proceeding.".	He, in those circumstances, is
required to meet his financial cost burden.	As a

matter of justice we would be submitting to the

Court, should special leave be granted, that in

those circumstances there should be introduced as a
matter of practice, in the administration of
criminal law, a check on that type of executive

power of the Crown requiring a person to attend for

trial and then decline to file an indictment.

GAUDRON J: That is not exactly what happened here though,

is it, not required to attend for trial and then

declining to file an indictment. There had been an

indication some day or so before.

MR BELLANTO: That is correct, Your Honour, yes.

GAUDRON J:  So there was no requirement to attend for trial?

Scott 4 4/2/94

MR BELLANTO:	The requirement was to attend the following Tuesday, and the decision was announced the
preceding Friday.

GAUDRON J: Yes, but what was the listing requirement?

MR BELLANTO:  There was a call-over and at the call-over the

accused was told the trial date and he would be

required to attend on that date, and it was a

matter of his bail condition that he attend on that

date. The difficulty is, in some of the cases,

that to delineate the nature of this pre-trial

jurisdiction, because in Goia, the ACT case,

Justice Miles formed a different view from the

majority in that case as to what was the character

of an application to stay, and His Honour there

found that an application to stay was not part of

the criminal process because it did not involve a
question of guilt or innocence, it involved a

non-criminal question, whereas the majority found

that it was part of the criminal process. And that

type of question, we would argue, should be the

matter of argument, and clarification, from this

Court.

Other questions such as issuing process,

issuing subpoena, adjournment applications, change

of venue, the question arises here, what is the

character of these proceedings. Are they purely

criminal? Do they come within the definition of a

criminal cause or mat.tar, as in section 2 3 ( 3), or

are they of another character, and the law at the
present time is in a somewhat uncertain state, and

Justice Hill, in the minority judgment in the court below, identified some of the early authorities which showed there was a clear inconsistency in

some of the cases, and the Victorian case of

Wright, again produces an uncertain area on this

question because His Honour Mr Justice Brooking in

that case felt that the position, as applied in the

Crown not being required to pay costs, was based

upon simply a lack of power, there being no

statutory power, whereas other cases, the

Queensland case of Kimmins, relied on the royal prerogative for the basis of the decision not to order costs.

So they are examples of the uncertainty in

this particular area and when one is required to go

back to the Commentaries of Blackstone·to try and

get clarification, we would say that in

contemporary Australia, given the way the law has

changed, the different types of evidence the

prosecution tend to rely on these days, there is a
need to review this area of law and particularly

perhaps to produce a guideline to remedy the

Scott 4/2/94

injustice that we say has been occasioned in this

particular case. May it please the Court.

DEANE J:  Thank you, Mr Bellanto. The Court need not

trouble you, Mr Crispin.

Having examined the papers and notwithstanding

the submissions of Mr Bellanto, QC for the
applicant, the Court considers that in all the
circumstances of this case an appeal would not
enjoy sufficient prospect of ultimate success to
warrant the grant of special leave to appeal.

Accordingly, the application is refused.

AT 10.53 AM THE MATTER WAS ADJOURNED SINE DIE

Scott 6 4/2/94