State of New South Wales v Canellis & Ors; State of New South Wales v A.B.

[1994] HCATrans 304

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S45 of 1994

B e t w e e e n -

THE STATE OF NEW SOUTH WALES

Appellant

and

GEORGE CANELLIS

First Respondent

HON JOHN PATRICK SLATTERY AO QC

Second Respondent

ANDREW PETER KALAJZICH

Third Respondent

Office of the Registry

Sydney No S46 of 1994

B e t w e e n -

THE STATE OF NEW SOUTH WALES

Appellant

and

Canellis(2)	91	5/5/94
MASON CJ BRENNAN J DAWSON J TOOHEY J McHUGH J

AB (Formerly WARREN ELKINS)

First Respondent

HON JOHN PATRICK SLATTERY AO QC

Second Respondent

ANDREW PETER KALAJZICH

Third Respondent

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 MAY 1994, AT 9.33 AM

(Continued from 4/5/94)

Copyright in the High Court of Australia

MASON CJ:	Mr Einfeld.
MR EINFELD:	If Your Honours please. When I commenced

yesterday I should have added one observation

concerning the passage from Powell v Alabama, to

which I drew the Court's attention, reproduced at

page 260 of the appeal book, and that was that the

impossibility of the expectation that the judge can

guide the unrepresented accused through a trial so

as to ensure the effective presentation of his

defence was, of course, what lay really at the
heart of Dietrich itself, and it is that

impossibility which deprives the accused of his

fair trial. The passage from Powell v Alabama, to

which I took the Court yesterday, was of course

cited in terms in the joint judgment of Justices

Mason and McHugh, and the in the judgment of	Justice Gaudron, and it is our submission that, as	a matter of principle, that difficulty is actually
compounded in the case of a commissioner overseeing a section 475 inquiry, such as this one, where
there are no pleadings or particulars as in a civil case or an indictment with particulars to confine the issues which are, by the terms of reference for this inquiry, in the widest possible terms.
In those circumstances he has all the more compounded the difficulty that one can or the
community can expect a commissioner or counsel
assisting to be of meaningful assistance to a
participant, especially an affected person, in an
inquiry such as this·.

Canellis(2) 92 5/5/94

Your Honours, we propose - - -

BRENNAN J: 

What is the legal theory which entitles the

witness or a participant to a "fair trial" in an
inquiry?

MR EINFELD: 

He does not have an entitlement to a "fair

trial" as that term is used in the criminal trial

sense, but the legal entitlement is to a full and fair opportunity to be heard in a natural justice or procedural fairness sense, and in the case of an

affected person, under section 474G(4) the affected

person has a statutory right to participate in the

proceeding, to examine witnesses and all that that

entails, we would submit, in a meaningful way, in a

way that is not illusory, and I wish to come back

and develop that in some detail in a short time.

Your Honours, we propose to show that there is

nothing doctrinally unsound about the propositions

for which we contend. We submit, of course, that

what is involved here is an application of ordinary

natural justice or procedural fairness principles

to what, on any view, is an unusual set of facts. In this area of the law, the absence of precedent

_authority for the .precise point in issue here is,

we would submit, explained as readily by the

unusual or isolated amalgam of facts as it is by

any question of principle.

But, Your Honours, even if that not be so, we

know that what would then be involved is one

further step in an evolution of the general law in

this area and it is an area in which, perhaps more

than any other, there has been rapid and extensive
evolution of principle and its application in

Australia in the last decade, perhaps more than in

most other areas of the general law. So if it

takes an extension of principle then so be it, but

it is our fundamental submission that what is

involved here is an application of ordinary natural

justice precepts to what admittedly is a rare

it.

combination of facts, circumstances that require

MASON CJ: But that seems to be an extraordinary argument.

Because the law has evolved in the past, it must

continue to evolve.

MR EINFELD:  No, Your Honour. We do not submit that it must

continue to evolve. What we would submit is, as I

say, our principal submission is that there is no

extension of principle at all involved in this case

but in the same way that Dietrich took the concept

of a fair trial forward, as a matter of general

principle, then if it be such that the precepts of

natural justice need to be advanced one step

Canellis(2) 93 5/5/94

further in order to meet the exigencies of a modern

social environment, then the Court ought go that

far. I mean in Dietrich there is repeated

reference in the majority judgments that the social
context now required the step to be taken in that

case that was.

DAWSON J:  What is the general principle, that whenever a

person would be disadvantaged in a decision making

process by lack of counsel, he should be provided

with it at public expense. Is that the principle?

MR EINFELD:  No, Your Honour, no. We do not put it as - - -

DAWSON J:	What is the general principle?
MR EINFELD:	Your Honours, the principle, if it at all

involves any extension of existing doctrine, is one

which would be confined to a very narrow set of

circumstances. In the broad, it is that where, as

in this case, a section 475 inquiry is, once

established by the State, in terms of a petition

that directs its focus primarily at the suit of a
convicted person at an indigent witness at the

convicted person's trial, in circumstances that, in

effect, as we submit as happened here, turn the

convicted person into the accuser and the witness

into the accused, where in that circumstance it

would be impossible, as we submit it is, for that

person to have a full and fair opportunity to
protect his interests, or defend himself against the allegations, in that circumstance then there

would be a denial of natural justice if that were

not possible through no fault of the affected

person.

Now, that is perhaps an inelegant way of

putting what, at the end of our submissions, we

would submit to Your Honours, really is a

comparatively minor extension of accepted existing
doctrine, in circumstances where we propose to

show, as I say, that our submission at the

forefront of what we want to put is that there is

no extension of principle involved at all here.

I need to develop that if I may, Your Honours,

because it involves not a repetition of all the

facts we have got either in our written submissions or in the Court of Appeal judgment, but an emphasis

on some of them more than others. So, if I can not

seek to avoid answering further Your Honour's

question of me but seek to defer it for the moment

until I have dealt with the other matters, I will

come back to it if I may.

MASON CJ:  What is the principle that you say is being extended? Is it the principle in Dietrich?

Canellis(2)	94	5/5/94
MR EINFELD:	No, Your Honour.	I am sorry, I thought I had

indicated that. Our submission is that there is no

principle being extended here at all.

MASON CJ:  I certainly understood you to have said that at

one stage, but at another stage I thought you said there was being an extension of principle and that

it was in accord with modern developments that it

should be extended.

MR EINFELD:  No, not at all. What I submitted is, and what

we will submit shortly and is the thrust of our

whole submission, that there is no extension of

principle but an application of existing principle
to an unusual set of facts. What I have said is

that if that is not right, then any extension of

principle that is involved is but a small one.

BRENNAN J: Perhaps you could identify the most

authoritative statement of the principle on which

you rely.

MR EINFELD: Yes. I will come back to principles in detail

but, in short point, accepting as we do - as all

parties do - the application of proGedural fairness

__ principles to Lhis kind of inquiry, they are

successive. One, the right to a full and fair opportunity to be heard so as to protect one's

right, interests and legitimate expectations

derived in principle from Your Honour's judgment in

Annetts in the statement at page 608 of the report

to which I will come shortly, as explained by this

Court in Wentworth v New South Wales Bar

Association to which I will also return shortly,

that what is involved in a right of participation

of a party affected, we would submit, in the way in
which my client is in this case is the right to a
fair opportunity to correct or contradict adverse

statements, a right to test the adverse case in the

evidence called and a right to put a case to the
contrary, so much being extracted from the judgment

of this Court in Wentworth v New South Wales Bar

Association, 176 CLR 239, at page 254 to page 255.

May I return to that in due course. Your Honours, we say that the combination of facts in this case,

through no fault of my client's, denies him that

opportunity. I will come back to what is meant by

"opportunity" shortly.

MASON CJ:  I do not want to interrupt you, but I think the

page references in Wentworth are wrong.

MR EINFELD: It is in 176 CLR 239.

MASON CJ: That is the commencement page but I think 244,

245 cover - - -

Canellis(2)	95	5/5/94
MR EINFELD:	I am sorry, Your Honour.	The last paragraph on

page 254. If I may say so respectfully, I am being

taken slightly ahead of myself, but at 254 - - -

MASON CJ: There is no need for you to deal with that now, I

just wanted to have a look at it in the meantime.

MR EINFELD: Accepting, Your Honour, the different statutory

context and the different factual environment in

which Wentworth v New South Wales Bar Association

is decided, we say that the passage commencing on

the second-last line of page 254 is apt to

describe -

MASON CJ:  "a right of full participation".

MR EINFELD: Yes, because we have been given leave to appear

generally, as well as having a section 474G(4)

right of appearance in this case and that that

attracts, we would say, the consequent entitlements

to cross-examine witnesses and the like. Again,

just to jump ahead of myself, to preserve those
until some point of time nine or 12 months down the

track when, if the Commissioner says, "I apprehend

there may be a passage in this report that is

adverse to you; I now give you a right to be heard

in a full sense, to cross-examine witnesses and the
like", take 474G out of the picture at the moment,

would present a practical absurdity, a much grosser

waste of public funds because then, having regard

to what we know about the path or direction of this

inquiry, that would involve a repetition of a very

very large and substantial part of the evidence, no

doubt, and, certainly, the recalling of a

substantive number of witnesses to the whole

process. But can I come back to that.

The application of procedural fairness doctrine to the inquisitorial procedure, we submit,

as we say is not in question here, it is not an

issue here. It is accepted by all parties. But we

submit that it applies with force in this 475

inquiry in which Mr Elkins is at once a person

whose rights are affected, in the sense that that

term is used in section 474G, and at the same time

a compellable witness, and, as it has transpired in

this case, a compelled witness in light of the

service upon him of a summons to give evidence.

The procedure is not unusual in this case on

that account alone. This is an inquiry, as we say,

into a conviction in which, having regard to the

terms of the petition, the way in which the inquiry

was opened by counsel assisting, and its conduct
and progress since and the remarks of the

Commissioner himself·, the person convicted has, in effect, become the accuser, and the key witness

Canellis(2) 96 5/5/94

against him, without whose evidence it is said his

conviction could not have been procured, has become

the accused.

If that is not enough, Your Honours, the State

of New South Wales has in this case not only

established the inquiry and funded the Commissioner

and his staff, provided accommodation and the like,

provide funds for counsel assisting and public

has chosen in this particular case to fund, in extraordinary quantum, the participation of the

funds for the appearance of the Director of Public

accuser; that funding extending, as we know, not

just to counsel and solicitors but to research

assistants, to computer education programs, all for
a vast sum of money, and at the same time has left
the effective accused in this case unable to fend

for themselves.

And unable to fend for themselves against

extremely grave accusations that, on the part of my
client, amount to an assertion by Mr Kalajzich's
representatives that he, in effect, procured a
massive conspiracy of police and all other

witnesses in this case so as to frame Mr Kalajzich,

thereby perverting the course of justice. The

particular problems of Mr Elkins which make this

case the more unusual and therefore, in a sense, explanatory of a lack of precedent authority for the application of natural justice principles, in

this context, having the consequence, we say, that

absent representation he cannot avail himself of

any meaningful right of participation, opportunity

to be fully and fairly heard, but that having

regard to his indigence, the consequence to achieve
that fairness, the only ability or the only source

of those funds is the State of New South Wales.

Those particular problems arise from

Mr Elkins' position as a protected witness, derived

from his willingness to give the evidence he did,

from his change of identity. Not to be discouraged

by the way, having regard to the express purpose of

such schemes to discourage honour among thieves, as it were, but placing in this case at risk his grant

of immunity; his lack of education; his inability

to grapple with the computerized process of the

inquiry; and the like. It is not, in essence, Mr

Kalajzich who is at risk in this case, in this

inquiry, he having been convicted by due processes,

and taken his appeals to the New South Wales

appel~ate tribunal and to this Court but, in fact,

Mr Jackson's client and mine.

Now these factors, Your Honours, throw up the

principal question in this case, as we would submit

Canellis(2) 97 5/5/94

it to be, that is whether the respondents are
entitled to and are indeed able to exercise a fair

opportunity to be heard in their interest, absent

effective legal representation. There are really

three principal questions which remain for me to

address, if I can just indicate them and then turn

to them seriatim. The first is, what is the

relevance, if any, of the public funding issue, as

it has been presented to the Court - - -

McHUGH J:  Your problem is, you see, you use the term about

their "right to be heard", but your problem is
this, that you have got no right to be heard at

common law until there is some possibility that

action will be taken against you by Mr Slattery.

Now, if you had to rely on the common law it may be

you would have to wait until the end of the

inquiry, and you are given some notice, and then

you could call evidence and recall witnesses for

cross-examination. But, the statute gives you an

earlier opportunity to intervene, it enables you to

examine witnesses at an early stage and, no doubt,

the principles of natural justice would enable you
to make submissions, in the end, if there is likely
to be any adverse finding against you. But, is

that not the beginning and end of your rights? You

have got your statutory right under 474G(4), and

you have got some further right if the Commissioner

decides to do something, or possibly do something,

adverse to your client's interest?

MR EINFELD:  The answer to Your Honour's question is no,

that it was the second principal issue to which I

wish to come. I appreciate that is a matter that,

if I may say so respectfully, has troubled

Your Honour. Your Honour has raised the matter on

a number of occasions and we wish to deal with it

expressly and I could just defer doing that.

The three matters I wish to address are

firstly, what relevance, if any, have the public

funding issues that have raised; secondly, at what

point in time does Mr Elkins' entitlement to

natural justice accrue; and the third question is

the actual content of the rules of natural justice

as they apply to Mr Elkins in his special

circumstances, and if I can deal with the matters
in that order, the second one of which is the

matter that Your Honour has raised directly with

me.

May I turn then briefly to this question of

at the forefront of the submissions of the

the ramifications for public funding that have measure

activated the interests and intervention of the

State of New South Wales.

Canellis(2) 98 5/5/94

It is our submission that what this case concerns is what is required to ensure a fair

hearing so far as it is able to be afforded, on
general law or statutory principles, to affected
persons such as Mr Elkins. If, Your Honours, there

are consequences for the public purse then so be

it.

By the way, I should say that whilst the

learned Solicitor-General for New South Wales was
minded to attach the tag "exaggeration" to some of
the points that have been made for us, may I say

this: that the concept of the vast hole that is to

be made in the public purse if the declaration

below stands, is one, we submit, which has been

grossly exaggerated for this reason. As

Your Honour the Chief Justice suggested yesterday,

traditionally we know, certainly in New South

Wales, that as a matter of practice the State has

always funded - if not always then in almost every

case - the legal representation of participants in royal commissions and commissions of inquiry where

that person has assumed a central role in the

proceedings.

We understand that in almost all of the royal

commissions in recent memory and commissions of

inquiry the State has, in fact, funded the costs

and provided representation and aid, if not by way

of legal aid, then by way of allocation or ex
gratia payment, of most of the central participants

in such inquiries. That too explains why it is

that there is no history of cases such as this one

that have come before the Court hitherto.

We would point out respectfully that there was

not one suggestion below, not a piece of evidence

below to suggest that the provision of counsel at

public expense to Mr Elkins or Mr Canellis in this
case for this inquiry would impose any

unsustainable or any special financial burden upon

cost the State money, but it must be accepted, in	the State purse. Obviously enough it is going to
our submission, that decisions of the courts will
frequently, and frequently do, impose a burden upon
public funds. Every time an appellate court, the
Court of Criminal Appeal in New South Wales, this Court, orders a new trial there will be a burden on
the public purse by a retrial.
Your Honours may recall this Court's decision in Barton v The Queen, (1981) 147 CLR 45, to which
we have not previously given a reference, but I do
not wish to take Your Honours, in which the orders to the effect that the ex officio indictment sought to be presented without prior committal proceedings
ought not be permitted to go forward, had obvious

Canellis(2) 99 5/5/94

public funding consequences and direct consequences

for this case. Either the Crown decides to incur

the public expense of conducting a committal

proceeding or it decides not to proceed with the

trial, and so it be here. If the consequence of

the declaration below is that it is unfair and

would constitute a denial of natural justice for

the proceedings to go forward absent proper or

adequate legal representation for its principal

participants, then the Crown has to decide either

to provide the necessary funds or to bring the

inquiry to an end. I will come shortly to the

point that to do so would be to frustrate the

purpose of the inquiry, if I can defer dealing with

that aspect of the matter.

The point is that all such cases have public funding consequences, and there is, we repeat, no

evidence in these proceedings below such as have

been provided by way of annexure to submissions of

the State of Victoria and others, to suggest that

some intolerable burden would be placed on the

State purse by the funding of this representation.

Barton also incidentally provides the answer

to the the_submission appearing in the written

submission of the Solicitor-General for the State

of New South Wales, I think in paragraphs 11 and

16, to the effect that what the declaration below

achieves is an indirect method of achieving by way
of forcing public funding, it is said, that which

cannot be achieved directly, because Barton was a

classic example, as there are many others, as

Dietrich is itself, as I will come to in a moment.

Although, of course, it is recognized, and if

we may say so most respectfully, the point made

most forcefully in Your Honour Justice Brennan's

dissenting judgment in Dietrich, although there is
no role for the Court to impose its will upon the

public fiscal administration of the State, at the

same time it is the role of the Court, we would

submit, to supervise the administration of justice

so as to ensure that those entitled to it receive

their full and fair opportunity to be heard and the

like. The best example is in indeed Dietrich,

because if it be correct - - -

BRENNAN J:  The only example is Dietrich. The only example

in which there has been any question of fairness or

natural justice which involves a pressure upon the executive to contribute funds; is there any other?

MR EINFELD: Well, Your Honour, if I may go back to it;

whilst Barton was not a procedural fairness case,

it was an abuse of p~ocess case, and the

consequence of it was, as I say, that if the

Canellis(2) 100 5/5/94

prosecution was to press forward with its trial,

there was a necessary requirement - - -

BRENNAN J: Procedural step to take.

MR EINFELD: Procedural and very expensive - - -

BRENNAN J:  But you are asking for a contribution of money

that?

for the legal assistance of a party, or a person.

MR EINFELD: There is no case, no. The answer to

Your Honour's question is "No" in terms of direct funding of the representation of a participant in

judicial proceedings. I accept that. What

accounts for that, we say, if we are right as to our other points to which I am about to turn, is simply that fact that this circumstance has not

arisen. One cannot look to the circumstance of an absence of authority when applying natural justice

dictates and say that because it has never happened

before it should not now happen.

The whole concept of procedural fairness not

only is an evolving one, but more particularly is

one which the cases have said time and time again

has to be governed by the dictates of the

particular circumstance of the particular case.

And the fact that this combination of circumstances

has not arisen before is not, in principle, we
respectfully submit, an answer to the proposition

that it should not happen now.

Now, Your Honours, if it be correct that an

order having the effect that proceedings be stayed until the litigant's costs be paid by the State is

not permissible by reason that it amounts to an

unwarranted intervention, or intrusion into the

legislature and executive functions, then, as we

say, as a matter of principle, Dietrich would have

been differently decided.	I accept that Dietrich
is in a different context; it is a fair trial

context, not directly, at any event, a procedural fairness context. But, as a matter of principle, public funding can have no place in the argument

or, if it does, it is a minimal place in the

argument, because otherwise Dietrich would have had

to have been differently decided.

Now, Your Honours, not only, by the way, do we

say that as a matter of general principle, but in

Dietrich itself, to which we invite Your Honours to turn very briefly, there are statements to that effect in the majority judgments. In Dietrich,

177 CLR 292, in the -judgment of Justice Toohey, at

page 357, His Honour addressed directly the

Canellis(2) 101 5/5/94

question of the role of the Court in this area.

And His Honour said, at point 3 on the page:

In performance of its duty to conduct a

trial fairly, a court may stay proceedings as

"an incident of the general power of a court

of justice to ensure fairness". It may be - By the way, just stopping there, if I may, that

principle alone would warrant the intervention of

the Supreme Court of New South Wales in this case,

as we would submit:

It may be said that a court cannot control the

allocation of government funds such as those

provided for a legal aid scheme and that a

court is not responsible for the fact that an

accused appears unrepresented before it.

Those assertions are no doubt true. The

organization of legal aid is a matter for

government. Many considerations enter into

the provision of legal aid, not the least of which are the many other demands made on the

resources of government. However, once an

accused appears before a court, the

.	unavailability of legal representation does
become a matter for the court, not because the court can remedy the situation by insisting upon the appointment of counsel, but because the court must then assess whether a fair trial may be had by the accused without legal representation. It cannot be said that the matter is truly beyond the control of the court because it is for the court to decide whether, in all the circumstances, the trial

should proceed.

Just stopping there, the first part of the

passage is exactly that that is invoked by the

States and the Commonwealth here. The second part

I appreciate is an appurtenance of the process of

fair trial, but again, as a matter of policy or

principle, the question of the fact that the order

of the court is one which will intrude into

governmental realm, in the sense that the

consequence of the court's ensuring fairness

imposes a burden on the State, is none the less the

same. The point is perhaps made more starkly in

the judgment of Justice Gaudron commencing at

page 364.

MASON CJ: Before you leave that, though, the first point

made in the passage you quoted from page 357 is

still associated with the right to a fair trial, is

it not? Beadle's case was a criminal case.

Canellis(2) 102 5/5/94

MR EINFELD: Yes, it was. The submission we make is that,

as has been held in Annetts and other cases, the

function of the court to ensure procedural fairness

in inquisitorial proceedings is, we would submit,
consequent upon authorities such as Annetts;

clearly an incident of the general power of a court of justice to ensure fairness. I do not suggest by that that the sole criterion for warranting the

declaration below in this case is fairness as

distinct from procedural fairness and natural

justice, but what I was seeking to say was that
that cited passage, that epithet, as it were,

having regard to those cases such as Annetts and

News Corp and the others that apply natural justice

principles to inquisitorial proceedings, is a

passage which is apt to apply in this case.

In the judgment of Justice Gaudron at

page 364, Her Honour says at point 2 on the page:

The notion of a fair trial and the

inherent powers which exist to serve that end

do not permit of "idiosyncratic notions of

what is fair and just" any more than do other

general concepts which carry broad powers or

remedies in their train. But what is fair

very often depends on the circumstances of the
particular case. Moreover, notions of
fairness are inevitably bound up with

prevailing social values -

the point I made earlier -

It is because of these matters that the inherent powers of a court to prevent injustice are not confined within closed categories -

the other point I made earlier -

And it is because of those same matters that,

save where clear categories have emerged, the inquiry as to what is fair must be particular

and individual. And, just as what might be

fair in one case might be unfair in another,

so too what is considered fair at one time

may, quite properly, be adjudged unfair at

another.

The question in this case can be put in various ways, including whether an accused

person who cannot provide for his own defence

has a right to be provided with counsel at

public expense.

Canellis(2) 103 5/5/94

That is the way, in fact, the appellant has presented its case here, as it applies to a participant in a 475 inquiry, not a trial.

No right of that kind is conferred by

statute -

I will come back to that -

nor has it been recognized by the common law.

Indeed, there are passages in Mcinnis v The

Queen which deny the right exists.

Accordingly, if put in terms of a right to be provided with counsel at public expense, the

question is whether a right of that kind

should now be recognized. The question

whether public funds should be allocated for

the legal representation of persons charged

with criminal offences is one for governments,

not the courts. But, as already indicated,

courts are duty bound to ensure that trials

are conducted fairly .

We would say inquisitorial proceedings are equally

conducted fairly, having regard to the dictates of

. natural justice.

A trial is not necessarily unfair because

it is less than perfect, but it is unfair if

it involves a risk of the accused being
improperly convicted. If the only trial that
can be had is one which involves a risk of

that kind, there can be no trial at all. If

an accused person declines to be legally

represented, then he may be taken to accept

that, in the circumstances, fairness does not

depend on legal representation. But that

situation aside, if fairness requires legal

representation there can be no trial without

it.

This is the important passage now:  If fairness requires representation in a

particular case, in a particular class of

case, or, even, in all case, that will have

consequences - probably in relation to the

administration of legal aid schemes. There may also be consequences for governments in relation to the funding of those schemes.	But
whatever the consequences and whatever the
cost, it is for the courts to decide what is
or is not fair in a criminal trial.	And it is

the duty of the courts to ensure that only

fair trials are had, either by tempering the

rules and practices to accommodate the case

Canellis(2) 104 5/5/94

concerned or, if that not be adequate, by

staying the prosecution.

I am not suggesting, and we have not submitted,

that what is involved in this case is a necessary

extension of a Dietrich principle, in the context

that what is being said about fair trials should

now be held as a matter of general principle
necessarily to apply to all inquisitorial

proceedings. What we do say though is that having

regard to the fact that fairness principles are to

apply, and nobody doubts that they are to apply, it

is conceded they apply to this inquiry, then the
substitution of section 475 inquiry for fair trial
in that context produces the required result in

this case. Can I, just before leaving Dietrich,

direct Your Honours' attention to the passage at

page 330, in the judgment of Justice Deane - it is

quite a detailed analysis - the paragraph starting

just above the middle of the page:

It must be stressed that the applicant

does not argue that he had a directly

enforceable common law "right" to be provided

with legal representation at public expense.

Nor do we so argue.

Clearly, he did not. The common law does not

impose upon the government or any section or

member of the community an enforceable duty to

provide free legal advice or representation to

anyone. What the common law requires is that,

if the government sees fit to subject an

accused person to a criminal trial, that trial

must be a fair one. Inevitably -

this is the point -

compliance with the law's overriding

requirement that a criminal trial be fair - we substitute "inquisitorial procedure be fair" -	will involve some appropriation and
expenditure of public funds: for example, the
funds necessary -

et cetera. We pray in aid, with respect,

Your Honours, those passages in support of the

proposition that the ramifications for the public
purse cannot be the guiding yardstick, the guiding

measure, for principle in this case.

Indeed, the Solicitor for New South Wales

submitted that one o·f the problems with the order

below, the declaration below - indeed, the form of

Canellis(2) 105 5/5/94

the order below - is that it would require,

necessitate, an investigation into the level of

indigence of the affected person, a monitoring of

the continued level of funding, continued indigence
of the affected person, and the like. Equally,
again, we say as a matter of principle, the same
points can be said - the same criticism can be made

of Dietrich.

McHUGH J:	I am not sure I understand why you are referring to this material at all or even dealing with this
argument, because it seems to me it has nothing
whatever to do with your argument.  The argument of
the appellant is, in effect, to this Court: do you
not create new law because of the effect on public
funding. Your argument is: this is just an
application of principle, established principle.

MR EINFELD: If that is right then Your Honour is correct.

On the other hand, what I have sought to do is to

indicate what I have in answer to what in essence

is the -

McHUGH J: But no one asks you to create a new principle.

MR EINFELD: Not at all, but what I am saying is that the

whole thrust of the submissions that Your Honours

heard from others at the bar table than Mr Jackson
has been that this declaration cannot stand as a

matter of policy of principle or application of

rules of procedural fairness because its

ramifications for public funding must be such that
the Court could not contemplate applying - opening,
as it were, the traditional floodgates - applying

that kind of procedural fairness - - -

McHUGH J:  I think that is per the hypothesis that this was

a point of departure by the Court of Appeal, it was
a new principle they laid down. You are not asking

us to lay down a - - -

MR EINFELD:  No, no. But if I am wrong on that point I have

to not be silent - - -

McHUGH J: But you are asking us to lay down a new

principle.

MR EINFELD: That is correct.

DAWSON J:  Mr Einfeld, do you make the same concession as

Mr Jackson made, that if funding had not been

available to Mr Kalajzich then your argument would

not succeed?

MR EINFELD:  I would wish to qualify it, and qualify it

fairly extensively, if I may, Your Honour. I was

going to deal with this in a more - can I defer it,

Canellis(2) 106 5/5/94

Your Honour? I am just conscious of time factors

and I gave an estimate yesterday and I do not want

to exaggerate too far, if I can, as I proceed. Can

I come back to it, because I do wish to deal with

it?

The consequence of what we say is that, as

Your Honour Justice McHugh has just put to me - and

perhaps this is the real significance of the points

that I was making. There is a precept, for

example, espoused by the Chief Justice of New South temper - I do not wish to go to it, Your Honours -

but one has to temper, where necessary, the

dictates of procedural fairness to reflect the role

of impinging legislation and, presumably, it would

be suggested here, such as the legal aid schemes,

and all the rest, which have an impact upon the

result of this case, or the application of natural

justice principles to the facts of this case.

What I submitted yesterday, and will do so

again today and we urge, with great respect, as

perhaps a most powerful argument against the

particular context perverts the respective submissions of the appellant is that in this

interaction between natural justice principles and

the statute. Natural justice has been said to be a

fundamental right and, by this Court, capable of

amelioration only by a statute in expressed terms

by a necessary intendment.

Now, I sought to make good yesterday the proposition that to seek to turn, as the appellant

does, that principle on its head by saying, "There

can be no application on natural justice doctrine

in this case because it would impinge upon a whole

range of legislation, which does not even address

itself to the question", is a contraversion of

well-established principle.

That is why we say two things about it: one,

that in principle it is wrong. You put the legal

aid last, you look at sections like 474G to see
whether they cut down the right to natural

justice - and I will deal with the timing point in

a moment, when it arises - but see whether it cuts

down the rules of natural justice. If it does not,
then the right stands. If, however, for some
reason, we would submit, contrary to that
submission there is an impingement upon the

application of natural justice principle to the

facts of this case by such legislation, what I have

sought to say is the evidence in this case, as a

matter of principle a la Dietrich, the legal aid
public funding consequences of this declaration

below are not in point.

Canellis(2) 107 5/5/94

May I then turn now to address - indeed, as r

think about it, in Ainsworth there is a passage in

Your Honour Justice Brennan's judgment which is

perhaps apposite. Again, I do not ask Your Honours

to go to it - Ainsworth, (1992) 175 CLR 175 - but

at page 591, at about point 3, the following

passage appears:

However, an obligation to accord natural

justice may be implied as a condition
governing the exercise of a statutory power

or, I would add, a statutory function -

Now, in our submission, it is the dictates of

natural justice that govern the application of the

statute, and not the other way around unless there

is to be found express statutory intention so to

do.

Can I turn then to the second issue I wish to

address and that is the proposition that Mr Elkins

is entitled to exercise his natural justice rights

only at the conclusion of the inquiry, and then

only if it is apparent that the Commissioner's

report may reflect adversely upon him. It is our

submission that the exercise of the rights are not

so limited in this case for a number of reasons, if

I could spell them out.

Firstly, the Commissioner's statutory duty is

not just to report. The Commissioner's statutory

duty is to conduct an inquiry and report, and he
must conduct the inquiry on the authorities fairly,

as been said in News Corp and the other cases -

Annetts and the others.

Secondly, in this case Mr Elkins is a person

affected within terms of section 474G(4), and he

does have the right to be present and to

participate and to cross-examine witnesses from the

outset of the inquiry, and that means, by the way,

presumably not just the witnesses who directly

affect him, in the sense they stand up and say,

"Mr Elkins perjured himself," but all of the gamut

of the metallurgical, and scientific, and other

expert evidence that is sought to be called during

the course of this inquiry, as we understand it.

Forensic experts who give evidence about ballistics, about bullets, about all sorts of

things, scientific matters, in the course of this

inquiry. So his statutory rights of

cross-examination are not limited solely to the

witnesses who will directly affect, but it extends

also to those who will indirectly affect or reflect

upon his character.

Canellis(2) 108 5/5/94

Thirdly, Mr Elkins has in fact been granted by

the Commissioner, in this case, general leave to

appear, and he has been afforded by the

Commissioner a general right to appear to

cross-examine, to make submissions as necessary as

to interlocutory matters, to object to evidence,

all the other things that are involved, in a

general right of participation in this inquiry.

BRENNAN J:  A full and fair opportunity, in other words.

MR EINFELD:  Yes. As was put in Mathews v Eldridge,

424 US 319, at page 333, the American case to which

Mr Mason referred yesterday, where the Court said:

The fundamental requirement of due

process is the opportunity to be heard "at a meaningful time and in a meaningful manner".

In other words, Justice Brennan's "full and fair

opportunity" to be heard, "a meaningful time and in

a meaningful manner". Importantly, Your Honours,

the right to participate surely must not be a

meaningless or an illusory one.

Your Honour Justice McHugh asked yesterday

whether, in the absence of a section 474G
entitlement, it was possible to discern an
application of natural justice principle other than
in the Mahon circumstances at the end of the
inquiry. We know that authority requires that the
application of the rules of natural justice has to
be melded, has to accommodate the various

exigencies of the particular, demanding fact

circumstances in question.

In our respectful submission there could be no

doubt that if the Commissioner decided part way

through this inquiry that he would no longer permit

Mr Elkins to have legal representation, in other words he would permit him his rights to appear, to	cross-examine, but for one reason or another said,	"But, I will not now allow you to do that by
counsel," or if he indicated an intention to refuse in a blanket way to allow objections to questions or submissions as to admissibility of documents, or
to allow a party - when I say a "party" an affected
person - to look at documents, we would submit
there is not the slightest doubt that in such a
circumstance the court would intervene to say, both
as a matter of community perception, social values,
and all the rest of it, but as a matter of direct
application of the precepts of natural justice that
that was unfair and unreasonable and ought be
restrained.

Canellis(2) 109 5/5/94

McHUGH J: That may be because he has a legitimate

expectation arising out of his 474G rights.

MR EINFELD:  It may be. Not only out of his 474G rights,

but if you put aside 474G out of the fact that the

way this inquiry is structured, he has been placed,

as I think the Commissioner called it, at the
centre of the radius, presumably at the centre of
the diameter of the inquiry, at the centre of the
inquiry, and the fact that he has been given a
general right of appearance in the inquiry no doubt
for that purpose. Indeed, as is recorded in the

judgments of the judges on appeal below, his role has been said to be pivotal; it has been said by

the Commissioner that without his legal

representation grave problems would be presented

for this inquiry. The Commissioner himself has

recognized not only just a desirability for

Mr Elkins to be represented by counsel, but the

fact that without it the objects of the inquiry may

be considerably frustrated. In those circumstances

there is certainly a legitimate expectation that he

can have his full and fair opportunity to be heard

with all that is attenuate to it.

Your Honours, reference.was made yesterday to the decision of this Court in J v Lieschke. That

was the case, Your Honours might remember, in which

parents were denied a right of appearance in a

magisterial proceeding as to the neglect of a

child. In New South Wales the judge at first

instance and on appeal the court had held that the

parents were not entitled to a general right of

participation in the proceedings, be they called

parties or otherwise. J v Lieschke is at

162 CLR 447, and again I do not ask Your Honours to

go to it.

This Court held that there was a right of

participation in the parents from the outset,

notwithstanding that the statute in question

contained a section, 89(1) or 81(9), I have

forgotten, which gave an express right to the

parents to appear at the end of the inquiry in the

event that there were found to be a prima facie

case of neglect of the child. So there was given

an express right, substitute in the present context

a Mahon right, to be heard at the end of the

proceeding; yet - and I accept the difference

especially having regard to the American cases,
parental rights with respect to their children -

but none the less, notwithstanding an express right

to be heard, this Court held that there was an

implied right to be heard and a natural justice

right to be heard right from the outset, because of

the interest the parents had in the ultimate

outcome of the case, even though there was a

Canellis(2) 110 5/5/94

statutory "Mahon right" at the end of the inquiry
if the magistrate then indicated that he might find

adversely to the child, and therefore adversely

reflect upon the parents.

In that kind of circumstance, we would

respectfully submit, as a matter of principle

again, is an indication as to the applicability of
the dictates of the doctrine once a party is
afforded a right of appearance, or more

particularly for the purposes by way of an analogy

with that case here, to answer Your Honour

Justice McHugh's question of me, where at the end

of the day there is a risk of damage to liberty,

reputation and there is created a legitimate

expectation of the kind I have addressed.

May we pray in aid this instance: let us assume that Mr Elkins was unable to speak English.

It is common in such inquiries and in other

proceedings for the government to provide funds to

the individual so affected to permit that person to

employ the services of an interpreter taken from a

panel of some description.

Let us assume that in this inquiry thus far,

Mr Elkins, unable to speak English, had had the

advantage of an interpreter. The government then

decided it would withdraw funds from that

interpreter, from that individual, to permit the

interpreted services, so that the affected person

could not then effectively cross-examine the

witnesses or play any meaningful part whatsoever in

the proceedings, and even, for that matter, make

submissions down the track.

And it is inconceivable, in our submission,

that the court would not intervene to say that the
continuation of that inquiry, in such
circumstances, would not amount to a denial of

procedural fairness to that individual. And that,

not by reason of anything necessarily - indeed, in

that example, not by anything at all done by the

Commissioner - Commissioner attempting to do

everything that was fair possible; counsel

assisting attempting to do everything possible to

assist the affected person, yet the government

withdraws funds; in our submission, it could not

ever be said that the dictates of the modern
doctrine of natural justice would not require

intervention by the court to prevent the continued

proceedings because they would affect the affected

person most unfairly.

Now, in this case we do not have an inability

to speak English, but we have a whole other range

of impeding and impinging consideration which, we

Canellis(2) 111 5/4/94

would submit, are no different in principle, and

whilst it is correct, as Your Honour

Justice Brennan posits to me, and did yesterday, that there is no authority expressed in terms that

would suggest that Mahon rights arise at any

particular earlier point in time, that is explained

by a whole range of factors, not just the

combination of facts in this case, but in Mahon v

Air New Zealand, in the Thomas case, in New

Zealand, in the Pohl case in Australia, the

affected person was, of course, all the way through

represented, that the circumstance calling for the

invocation of the natural justice principle just

has not arisen. But to draw from that the fact

that this is some vast extension of principle is,

with great respect, a most serious non sequitur.

Now, Your Honours, equally, may I say, in

Annetts counsel appeared throughout. So that,

although the focus of this Court's attention in

Annetts was upon the rights of counsel for the

parents of the deceased boy to make submissions at

the end of the case, there just was no question.

But during the course of the case, certainly by

statutory provision, counsel had been there all the

way through, to do that which was fair.

Now, Your Honours, superimpose then upon that

general law proposition the terms of

section 474G(4) and you have not a departure from

but, if anything, a reinforcement of ordinary

general law rights to participate in a meaningful

manner in an inquiry such as this in the

circumstances of the case, to which I will turn

finally in a moment, which would make and render a

statutory right and a common law right illusory for

Mr Elkins, and Parliament can never have intended

that.

Now, Your Honour, the illustration I gave of the interpreter provides, before I leave it, an

answer and exposes the deficiency in a number of

the other contentions of the appellant. It exposes

firstly the fallacy of the argument about public

funding because in the example, if I am right, that

the Court would intervene in the process absent an

interpreter, then again the State is left with the

option of providing again the funds so that the

proceeding can go forward and the Commissioner can

carry out his statutory duty to report. Or,

alternatively, it sees the consequence that the

inquiry may come to an end. And I want to address

just one remark about that - perhaps I will do it

now.

There is an assumption here that this inquiry

will be stultified, will come to an end, if

Canellis(2) 112 5/5/94

Mr Elkins does not have State-funded legal

representation. That is of course not correct. To

the extent we may have embraced such a proposition

in our written submissions, it is not entirely

accurate. There are two possibilities. One is

that the inquiry may come to an end. The other is

that Mr Slattery will proceed with the inquiry to

the extent that it is possible, will produce a

report at the end of the day which will admittedly

be deficient in the sense that he has not had the

participation of Mr Elkins or, if it is not

deficient, will find that the evidence of Kalajzich
or others is accepted and Mr Elkins has perjured
himself and all the rest of it, but that report
will at the end of the day, as was the report of
the Justice Commission in Ainsworth, be tainted.

So that it does not follow - the Draconian consequences posited by the State do not follow, as

has been suggested.

Your Honours, instead of Mr Elkins being unable to speak - - -

BRENNAN J: That means, does it not, that if the second of

those were to eventuate, the statutory duty to

report would be fulfilled but at the price of a

breach of the terms of natural justice?

MR EINFELD: Yes.

BRENNAN J:  How is it that the performance of a statutory

duty can in those circumstances be inconsistent

with the rule of law?

MR EINFELD:  Can I answer Your Honour this way. The only

difference between that result inuring from the

statutory requirement in, say, Ainsworth's case or

any other in which a commission of inquiry fulfils

its statutory function but produces a report which

then becomes tainted or, as it were, struck down or

avoided by a declaration that it was procured or

produced in breach of the dictates of natural

justice and the present case is that we are seeking

to do it now, not later. Otherwise, as I say, the

statutory duty incorporates two elements. It is

not just a duty to report; it is a duty to inquire

and report, to conduct an inquiry. The statute

itself, 475 itself, as Mr Jackson pointed out

yesterday, is silent as to a whole range of matters

which become necessary features of the conduct of

any such inquiry. The common law fulfils them.

To the extent that a fair hearing is required

during the course of that inquiry, natural justice

fulfils them. If they are breached, then at the

end of the day the report which is produced, whilst

in a sense, as Your Honour puts to me, satisfies a

Canellis(2) 113 5/5/94

technical or a literal satisfaction of the

requirements to inquire and report, does not
achieve that in a lawful sense - I mean by that in

accordance with the principles of the common law -

but that is no different whether the report is

produced in that way afterwards because the

affected person has not been informed of their

rights at any time or whether it happens now and

everyone is put on notice of it.

BRENNAN J:  I do not understand how it is that a duty which

statute imposes upon a prescribed person and which

falls to be discharged by the prescribed person is

one which the prescribed person is incapable of

performing, save by the indulgence of the executive

government.

MR EINFELD:  I can only answer Your Honour by saying,

without wishing to repeat myself, that the

statutory duty is to conduct the proceeding fairly.

I appreciate that the - - -

BRENNAN J: My proposition to you is: as fairly as he can.

MR EINFELD:	Yes.
BRENNAN J:	Not as fairly as somebody else can make it; as

fairly as he can.

MR EINFELD:  But that is to suggest, Your Honour, that the

whole - well, as fairly as he can, within the

surrounding context. Now, that is not to say that

it necessarily has to be some act of the prescribed

person which renders the proceeding unfair. It is

not a requirement of the dictates of natural

justice, we would submit, that there has to be some

physical conduct on the part of the prescribed

person before the court would intervene an inquiry

in which he seeks to discharge his statutory duty.

One does not move - - -

BRENNAN J:  I just want you to understand that, unless you

can demonstrate to the contrary, my notion of full

and fair opportunity is that the person upon whom

the statutory duty devolves must give as full and

as fair an opportunity as lies within that person's

power, to an affected person to be heard, to be

represented, et cetera.

MR EINFELD:  I accept that, Your Honour.

BRENNAN J: But not anything beyond.

MR EINFELD:  But that does not have the consequence, with

respect, that only the acts or omissions of the

prescribed person can· affect the extent to which he

is required to act fairly in order to discharge

Canellis(2) 114 5/5/94

those same statutory functions. Mr Jackson gave

the example yesterday of the State locating the

inquiry, let us say, into misconduct in the

BHP Steelworks at Wollongong, at Broome, so that it

became practically impossible for all relevant

affected persons to participate in the inquiry.

Now, surely it could not then be said that

because that was simply beyond the power of the

Commissioner himself to overcome that that turned, what would otherwise be a unfair procedure,

suddenly into a fair procedure. In other words,

because it happens by coincidence to be the act of

the executive, which in this case stultifies the

right to natural fairness, therefore the natural

justice principles, as it were, go out the window.

The duty to act fairly, because it is impeded by

act of another than the prescribed person himself,

that the precepts go out the window altogether.

That of itself, we would submit, would be an

entirely unfair application of natural justice

principle.

I mean assume, for example, that the

State Government, during the course of the

inquiry - - -

BRENNAN J:	I understand the way -
MR EINFELD:	- - - decided to save electricity by turning

off the lights during the course of this inquiry -

I mean it is a far-fetched example, but for the

purpose of answering Your Honour's question - then

those affected by the inquiry could not have a -

and that were to remain, or they were to be locked

out of the inquiry on government - not allowed in

the door at government instruction. One could not

say then that natural justice is necessary to

protect the fair opportunity of the person to be

heard in his own interest during that inquiry,

could not be brought to impinge upon the

Commissioner's obligation to discharge his

statutory duty simply because it had not been an

act of the Commissioner himself.

Your Honours, may I turn to the third aspect of the three matters I wish to deal with which is the specific context - and I do not need to repeat

all the things that have been said about this
already and are in the submissions - the specific

context - - -

MASON CJ:	Or perhaps any of them.
MR EINFELD:	I am sorry, Your Honour?
MASON CJ:	Or perhaps any of them.

Canellis(2) 115 5/5/94

MR EINFELD:  I need to expand one or two, and emphasize one

or two others.

Perceived bias is an example of the point I

was trying to make, Your Honour. That may not be

due to any act or conduct or omission of the

Commissioner himself. There may not be any actual

bias whatever but perceived bias would require an

interference on natural justice grounds, which

would have the practical implication of, to some

measure or other, stultifying the fulfilment of the

statutory purpose.	Anyhow, I have said enough
about that.

May I then turn to this question of the actual context, the practical context and content of the

rules of natural justice to be applied in this

case. As Mr Kalajzich's employee, Mr Elkins was,

in fact, the only link between Kalajzich, on the

one hand, and those who have been held to be

responsible for the actual murder.

Because of his role in these proceedings, he

was admitted to the State's witness protection

programme. His own evidence in this case, at the
trial, led directly and immediately to his own
conviction and incarceration. It is one of,
perhaps, the more bizarre features of this case,
that the allegations made against Mr Kalajzich

here, which make all the more necessary for his

participation, is the suggestion that a conspiracy

which he is supposed to have orchestrated to

pervert the course of justice is one which, if it

were procured by him, procured his own long term of

imprisonment.

As a result of his role in the matter, he was

admitted to the witness protection programme, which

has involved, subsequent to the trial, a change of

identity, relocation and the like. Now, after

unsuccessful appeals by Mr Kalajzich, an

unsuccessful 475 application to a judge of the

Supreme Court of New South Wales about whom,

incidentally, at page 126 of the appeal book,

counsel for Mr Kalajzich - - -

McHUGH J:  I think we have read that. I do not think you

need - - -

MR EINFELD:  - - - indicates the complexity of the matters

with which Mr Elkins is required to grapple

without, as it happens now, legal assistance.	He
finds himself in a position that with all the intricacies of the matter and all the expert

evidence and the other matters that are dealt with

in submissions, he is, notwithstanding his

centrality to the issues, a person who is unable,

Canellis(2) 116 5/5/94

we would respectfully submit, in circumstances not

in the slightest of his own doing, to be able to

seek to protect his reputation, his liberty, to an

extent, and his status.

We appreciate that our reference in the

written submissions at paragraph 6 to the fact that

these matters have the capacity to affect his
personal liberty are several steps removed from the

trial process. They affect his status in the sense

that he is at risk of losing his immunity and at

risk of exposure of the change of identity

consequent upon his status as a protected person.

They affect his reputation which, by the way,

is not to be diminished in the way the learned

Solicitor for New South Wales suggested yesterday,

simply because he stands as a convicted man. But, rather, having firstly completed his sentence and, secondly, aided the administration of justice by

procuring the conviction of the murderer in this
case, he has a reputation which is all the more
important to protect. Indeed, his role in the

procuration of the conviction of Mr Kalajzich

ameliorates his earlier conduct and is

demonstrative, we would submit, to the extent that

my learned friend seeks to diminish the
significance of his reputation, of a rebuilding of

his character.

All of those matters are important, all of

them are deserving of protection. That is the

position absent 474G; it is most certainly the

position, having regard to his rights as an

affected person under section 474G, which itself

and which the Commissioner himself have already

invoked to indicate that this man's reputation is

squarely on the line in this inquiry.

Something was said yesterday about what is

meant by the term "opportunity". It was submitted

by the Solicitor for New South Wales, I think, that

the terminology in the cases emphasizes

particularly the "opportunity" to protect one's

interests rather than the availing of that

opportunity. We respond to that by saying,

firstly, that one cannot read "opportunity" as it

is used in the cases as meaning anything other than

a real and meaningful and not illusory opportunity. One knows that the right to natural justice in such

justice in such a case, the right to protect one's

status and reputation and to delimit the prospects

of loss of immunity and further incarceration. One

cannot expect a perfect system, one cannot expect a

system which would require the State to provide a

barrage of personal .expert opinion to Mr Elkins, or

a range of Queen's Counsel and a range of

Canellis(2) 117 5/5/94

solicitors and junior counsel, and all the rest.

So we cannot expect what we would - - -

MASON CJ: All of this, really, has been said, Mr Einfeld.

There is no need to repeat it.

MR EINFELD:  If Your Honour please. What we wish to submit

is that it is not to the ideal or unattainable to

which we seek to attain, but merely to what is fair

in the circumstances.

I just want to deal, if I may, in closing with

the question asked of me by Justice Dawson a little

earlier as to the concession that was made by

Mr Jackson yesterday. Obviously in the context of

affording fairness, or procedural fairness, to
Mr Elkins, the fact that the State has seen fit to
provide vast sums of money to Mr Kalajzich - who by
the way, although obviously critical to the

inquiry, in a sense it is his inquiry, or certainly

it has become his inquiry - he is none the less not
an affected person as defined. He is a witness to

the inquiry, but he is not an affected person, one

would think, in the sense described by 474G, but

leave that aside.

The fact that he, the accuser, has been

afforded a vast sum of money is obviously an

important fact, we would submit, to take into

account in determining in all the context whether

or not a denial of equivalent, or even anything

like equivalent, assistance to Mr Canellis and

Mr Elkins amounts to procedural unfairness.

DAWSON J:  Why?

MR EINFELD: Because it tilts the balance of what would be

perceived by the community to be a fair procedure.

DAWSON J:	So that if Mr Kalajzich had resources enough and had provided the representation at his own expense,
the State would then have to come in and provide
like services to your client.
MR EINFELD:	Not necessarily, but let me just deal with

that.

DAWSON J:	What is the difference?
MR EINFELD:	The difference is that the community's

perception - and I am not suggesting that is the

guiding principle necessarily - is that here is a

State which is pouring a vast sum of money into

conducting this inquiry, yet the inquiry has taken

a path which really has become, as the President

below described it, as it were, a virtual two-way

contest with no intermediate position, but putting

Canellis(2) 118 5/5/94

Kalajzich in the position of accuser and Canellis

and Elkins in the position of accused, so that it

has become not directly and not in real terms, but

a notional or essential contest between

individuals.

Were Mr Kalajzich to fund his own

participation in the inquiry, there would be no

expectation of community outrage but, where the

State provides a vast sum of public funds, commits

a vast sum of public funds to one party who, though
convicted and who has appealed unsuccessfully
through the ordinary court processes, none the less

turns - - -

DAWSON J:  I simply do not understand that. The nature of

cannot be affected by the fact that in one case the	the hearing, whether it be fair or otherwise, he has representation at his own expense. It
cannot make any difference to the nature of the
hearing.

MR EINFELD: Let me assume that be so - - -

DAWSON J:  I mean, you might be outraged that the State did

this for one and not for the other, but it cannot

make a difference to the nature of the hearing.

MR EINFELD: It does not make a difference to the conduct of

the hearing but it makes a difference - - ~

DAWSON J: That is what we are talking about; whether there

is a fair hearing.

MR EINFELD: This is not the answer I wish to give to

Your Honour's question of me; this is in answer to

what Your Honour just asked me now. It makes a

difference to the public perception that the State

should intervene on the one part to provide funds

to one of the, as it were, adversaries.

Justice Toohey asked yesterday whether this was

inquisitorial or adversarial. In strict form, of

course it is inquisitorial; in practice it has
become almost adversarial. It does outrage the ordinary sensibilities of the community, in our

respectful submission, that the State on the one

hand amply funds one party but not the other at

all, or essentially not at all.

The answer to Your Honour's question of me

earlier and to Justice Brennan's question yesterday

is that if one takes away the public funding of

Kalajzich, that is not an end to the entitlement of

Mr Elkins to government-funded legal assistance in

this case because he still has, quite independently

of anything Mr Kalajzich has in terms of State

Canellis(2) 119 5/5/94

funds which might be substituted by private funds,

all the impediments that have been imposed upon

him, quite apart from his indigence of the kind

that I have just elaborated, which make it

impossible in this case.

DAWSON J:	I understand that, but you say, "Well, it doesn't matter one bit whether Kalajzich is funded or not.
The fact remains that it's still not a fair hearing
for my client unless he is represented".

MR EINFELD: That is so.

DAWSON J:	I understand that.
MR EINFELD:	The concession that was made yesterday, as we

understand it, or what was called the concession,

was to the effect that if Kalajzich had no funding,

then that would be an end of the complaint.

DAWSON J:	You reject that?
MR EINFELD:	We do not, with the greatest of respect - it is

clear that, particularly in Mr Elkins' case because

of his special circumstance, that that would ensue.

They are the submissions for the first respondent,

may it please the Court.

MASON CJ:  Thank you. Yes, Mr Jackson.

MR JACKSON:  Your Honours, this derives from an answer to a

question I gave yesterday at pages 70 and 71 in

connection with whether it is simply Mahon plus

section 474G. What I should have said in answer to

Your Honour Justice McHugh was that the underlying

common law principles in New South Wales, in fact,

have a statutory base apart from 474G(4), that

being in section 7(2) and 7(3) of the Royal

Commissions Act 1923, which are picked up by

section 474G(3) of the Act.	I will not go to the
terms of it, but Your Honours will then see that on	top of that one has section 474G(4) which appears
to limit the ambit of the discretion conferred on
the inquirer by section 7(2) and 7(3).

MASON CJ:  Thank you, Mr Jackson. Mr Solicitor for New

South Wales.

MR MASON:  A similar statutory tidying up, as it were.

Section 474H(2), which does apply to this inquiry

by virtue of clause 10(2) of the Eleventh Schedule

of the Crimes Act provides that one possible

outcome of the matter would be the referral to the

Court of Criminal Appeal, together with a copy of

the report for consideration of the question

whether the conviction should be quashed.	So it is
not exclusively a prerogative-based inquiry.	One

Canellis(2) 120 5/5/94

possible outcome, and I stress possible, is that

one.

TOOHEY J: But nothing follows automatically from a

consideration by the Court of Criminal Appeal, does

it?

MR MASON:  Of course not, no.

TOOHEY J: It simply goes forward to the Governor as an

expression of opinion?

MR MASON:  Yes, but there is no requirement in the

legislative scheme that we are aware of that

requires the report itself to be made public. I

was asked a question yesterday by Justice Brennan

about the effect of the guidelines. The answer is,

I think, in section 30(2) of the Legal Aid

Commission Act, which effectively, in our

submission, allows the Commission from time to time

to make up its own mind about the allocation of

legal aid in particular cases or classes of cases.

In that regard, the appeal book at page 244

records in the judgment of the learned President
the fact that before Justice O'Keefe the appellants
expressly abandoned the contention that the grant
of legal assistance of $22,000 each represented a
manifestly erroneous and unreasonable exercise of

the discretions. His Honour the President said

that was perhaps surprising, but His Honour noted
that fact.

The effect of the declaration in the present case was said by my learned friend, Mr Jackson, or

perhaps implied by my learned friend, Mr Jackson as

being of the same nature as in Ainsworth, namely

that it will arm the respondents with a capacity to

say that the report is void if the Commissioner

proceeds without the State, in effect, providing

the funds.	Mow, whether my friend implied that
that was as far as it went, the point should be
made that the declaration does go further.	When

one looks at the declaration at 264 of the appeal

book, it speaks of the continuation of the hearing

in a certain way being a denial of natural justice

and therefore effectively compels Mr Slattery to

change course at this point of time, unless the
funding is provided.

There is, in our submission, a uniqueness about the nature of the breach of natural justice

that was found in the present case. In all other situations the breach can be said to be referable to the conduct of the decision maker, in the sense

of being something that is within his or her

control. Here nobody makes any complaint about

Canellis(2) 121 5/5/94

what Mr Slattery has done, or is threatening to do,

but, through circumstances beyond his control,
there is said to be an actual or an imminent denial

of natural justice.

In Sullivan v Department of Transport,

(1978) 1 Administrative Law Decisions 383, there

was a decision of the Full Federal Court of

Australia concerning an administrative tribunal

that had a statutory requirement to ensure

section 39 of the Administrative Appeals Tribunal

Act to ensure that every party is given a

reasonable opportunity to present his case.

Mr Justice Deane, a member of that court, said, at

page 403 of the report:

In this regard, however, it is important to

remember that the relevant duty of the

tribunal is to ensure that a party is given a

reasonable opportunity to present his case.

Neither the Act nor the common law imposes
upon the tribunal the impossible task of
ensuring that a party takes the best advantage

of the opportunity to which he is entitled.

. In Salemi (No 2), 137 CLR 396, at 442,

Justice Stephen said that:

The rules of natural justice are "in a broad

sense a procedural matter".

He was there quoting from Tanos' case.

In our submission, the respondents' case is an

attempt to change the content of the rules in a

significant way, not to apply them, not even to

develop them incrementally but to change their

nature from this essentially procedural content to

a substantive content.

That was, in essence, what was sought to be done in the Chaffey case, the Independent

Commission Against Corruption v Chaffey, 30 NSWLR

21. That was a decision of the Court of Appeal of

New South Wales, special leave being sought to this

Court and refused on the basis that the decision

was correct in this regard. The argument which

found favour in the trial judge and Justice Kirby

dissenting was that natural justice had something

to say, in effect, about whether or not the

proceedings would be heard in public and that a

decision to hear in public, in the peculiar

circumstances, so it was put, that unique case was

a denial of natural justice and the majority of the

Court of Appeal said that, in effect, one was

dealing with different realms of converse. The

particular passage which I would ask the Court to

Canellis(2) 122 5/5/94

have regard to is in the judgment of Chief Justice

Gleeson between 27F and 29F. I will read but one

sentence of it at 29D where His Honour said, when
speaking about the duty to hear proceedings openly

and the comparison of curial proceedings with this

administrative proceeding:

Even so, there are powerful reasons why curial

justice is administered openly, even if that

involves damage to reputation and our ideas of
fairness in judicial procedure do not
encompass a requirement to protect people from

adverse publicity.

Neither, in our submission, do they encompass the

requirement which the Court of Appeal imposed in

the present case upon the State or the

Commissioner, depending upon how one views the

declaration.

The example about the interpreter can be

distinguished. If evidence is being given in a

foreign language before the inquiry, then clearly

it may incumbent upon the inquiry to ensure that it

is translated so that those participating can

understand. But the example that my learned

friend, Mr Einfeld, wants to take is one where

evidence is given in English but that the

participant in the inquiry is of an exclusively

foreign language and, in our submission, natural

justice does not have anything to say about a duty

to provide that person, particularly in an

inquiry - perhaps a trial might be different but

particularly in an inquiry - about that person's

right to be assisted in that way. Questions of

fairness about that situation are to be addressed

but not in the context of the principles of natural

justice.

We submit that nothing the respondents have advanced has offered to the Court a principled

reason for the declaration which they seek to

uphold. My learned friend, Mr Einfeld, argues, in

effect, that this is a form of quia timet Mahon

relief that because there is a risk that an adverse

outcome could occur, one needs to get in in advance

and have, in effect, a watching brief to ensure

that the risk does not come home.

Now, that risk may or may not be controlled by

the availability of counsel, and of course the
principle in Mahon's case provides authority for an

opportunity whether or not it is availed of by a

wealthy or a legally funded respondent. But on the

facts of this case that risk may never occur and

Mahon cannot provide· the basis for the declaration

that has been sought, in our submission.

Canellis(2) 123 5/5/94

It may never occur both theoretically and

factually as my learned friend, Mr Einfeld, pointed

out. So far as Mr Elkins is concerned he pleaded

guilty and implicated himself and paid the penalty.

So far as Mr Kalajzich's attempt to show that he

was part of a gross conspiracy one may perhaps

venture that this might be pushing a difficult case

uphill. But, the Court of Appeal's declaration

seems to avoid any analysis of the strength or

otherwise of that case.

My learned friend, Mr Jackson, focused more

upon the setting up of the inquiry and the
disproportionate funding that was involved in it

but, in our submission, his concession that if

Mr Kalajzich's legal assistance was removed

everything would be okay really destroys the
superstructure which he sought to erect, because a
legally unassisted Mr Kalajzich would still be able
to, in the vernacular, throw the mud which has been

the cause for the concern and the indication of the

assistance by these respondents.

My learned friend Mr Jackson's submission

really comes down to a question of funding per se

when one thinks about it because the State
establishes the court system generally. It is the
public funding that enables litigants, in civil and
criminal litigation, and witnesses to have a forum
in which, necessarily, nasty things are said about

people in the course of a particular set of

processes. But, surely it could not be contended -

and yet the logic of my friend's submission does

contend - that the State is obliged to fund a

defendant in a civil action who is faced with a

claim by a wealthy plaintiff, and I am talking just

an ordinary civil claim, and yet the logic of my

friend's case would seem to suggest that is so.

The fallacy in that approach is, in treating

the inequality of the parties as being part of the

procedure. In any event, as it were, a final

alternative resort, or response, to that

contention, we do submit that Mr Kalajzich, on the

one hand, and Messrs Elkin and Canellis are in a

different position. Mr Kalajzich is at the end of the line. Messrs Canellis and Elkin, on the worst case scenario, are at the beginning of a line.

Neither respondent has, in their submissions,

offered any principled reason why the principle

which they espouse does not apply, a fortiori, to a

defendant in committal proceedings. There there is

a direct accusation by the State with a much more

immediate risk of prejudice than the respondents are facing, and if the principle they contend is located within natural justice or procedural

Canellis(2) 124 5/5/94

fairness, it must apply in virtually any committal

proceeding. If they retreat and say any complex

committal proceeding well, so be it, there are lots
of those and, in our submission, neither authority
nor principle would draw the line there, but if the

common law is to move there, it must necessarily

embrace the whole of committal proceedings.

The final matter is that the reliance upon the

Russell v Duke of Norfolk, about the flexible content of natural justice, really uses those cases

in an area they have never been used before. Those

statements are always us~~ in a response to an

argument concerning an~	istrative inquiry where
people say, "Why can we ..	1ave the full panoply

of judicial formal procs ~s?" The Court's

response is, "No, it is a variable content, and it

is the fairness", et cetera. Here the respondents

want to use that to justify an extension of what

applies in normal judicial proceedings rather than

a derogation from it.

McHUGH J:  It is not always used in that content. Sometimes

it is used in relation to procedures, for example,
in a case like Lisafa or in a case like Heatley

where there is a warning off on the racecourse at

the very moment. There may be practically no

opportunity to give effect to the rules of natural

justice.

MR MASON:  Yes, the argument is, "Well, if I was in a court

I would have it", and then the respondent says,

"But it's a flexible content and you don't

necessarily start with the full rights of a court

procedure including formal notice".

McHUGH J:  No, but under the same statute on one occasion

you may get a relatively full hearing; on another

one, quite a truncated hearing.

MR MASON:  Yes. Your Honours, may I then turn to the

notices of motion that have been filed in each of

these matters.

MASON CJ:  Mr Solicitor, the Court will take a short

adjournment at this stage to consider what course

it will take in these matters.

AT 11.10 AM SHORT ADJOURNMENT

Canellis(2)	125	5/5/94
UPON RESUMING AT 11.13 AM:

MASON CJ:  The Court has come to a clear conclusion that

these appeals should be allowed. In those

circumstances, the Court proposes to make formal orders now and to publish its reasons at a later date.

In each appeal the Court makes the following

orders.

Appeal allowed.

Set aside the orders and declaration made by

the Court of Appeal on 25 February 1994 except in

so far as that court granted leave to appeal from

the orders made by Chief Judge O'Keefe in the the appeal to that court be dismissed with costs.

The appellant to pay the respondents' costs of

this appeal.

AT 11.14 PM THE MATTER WAS ADJOURNED SINE DIE

Cannellis(2) 126 5/5/94