Walker v The Queen

[1994] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney           No S176 of 1994

B e t w e e n -

DENNIS WALKER

Applicant

and

THE QUEEN

Respondent

Application for bail

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 22 DECEMBER 1994, AT 10.42 AM

Copyright in the High Court of Australia

MR G.C. CORR:   If it please the Court, I appear for the applicant.  (instructed by the Aboriginal Legal Service New South Wales)

MR M.L. BARR:   If it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

MR CORR:   If it please the Court, I do not think I need trouble Your Honour with the background details of this particular case.

HIS HONOUR:   Why not?

MR CORR:   I believe that Your Honour is familiar, to a certain extent, with the charges which Mr Walker was charged with in relation to an assault at Nimbin and so on and that Your Honour - - -

HIS HONOUR:   I am familiar with that but I must say that I do not understand the nature of the removal application.

MR CORR:   Yes.  The nature of that, Your Honour, the submission is that the laws of the Noonuccal people became part of the laws of New South Wales and subsequently of Queensland and that Mr Walker, being a resident of Queensland and a Noonuccal person, that he is subject to those particular laws.  He was charged with offences under the laws of New South Wales. 

It is submitted that the trial judge in that matter, His Honour Justice Craigie, did not give full credence to the laws of the Noonuccal people and that therefore an inconsistency with section 118 of the Constitution applied and that it is therefore asked that the Court remove this matter into its own jurisdiction in order to determine whether that is, in fact, the case.

HIS HONOUR:   What is the relevant law or laws of the Noonuccal people that form part of the law of Queensland?

MR CORR:   It is the customary criminal law of the Noonuccal people and their laws in - - -

HIS HONOUR:   What is the relevant rule?

MR CORR:   It is the laws in relation to how a Noonuccal person should behave whilst in the area of another Aboriginal nation, in this particular case, that of the Bundjalung nation.

HIS HONOUR:   And what does that relevant rule provide?

MR CORR:   I am not an expert on either Noonuccal law or Bundjalung law, Your Honour.

HIS HONOUR:   How can the Court consider this question unless there is some specificity about this?

MR CORR:   That is part of the reason why we would be asking for bail, Your Honour, so that Mr Walker can go to the elders of both the Bundjalung people and the Noonuccal people to obtain the proper evidence to put before the Court and that is one ground for applying for bail in this matter, Your Honour, so that the proper material can be put before the Court; that Mr Walker is keen on putting that material. 

It would be, I would submit, the second stage to the determination that the Court would have to make, namely, the Court would have to decide that the laws did in fact survive, and then we would have to look at how they did in fact survive and the relevance to the particular case.  Now, in order to provide the material for that second part, Mr Walker is desirous of approaching the elders of the Bundjalung people and the Noonuccal people.

HIS HONOUR:   But all this should have been done at an earlier stage in the case so that a trial judge could deal with this.

MR CORR:   The learned trial judge refused to hear any matter as to whether Bundjalung law or Noonuccal law applied.  He dismissed the matter out of hand.

HIS HONOUR:   The particular matter of concern to me at the moment is you want to have these entire proceedings removed into the High Court.

MR CORR:   That is correct, Your Honour.

HIS HONOUR:   But you have got a conviction.

MR CORR:   Yes, Your Honour.  However, he has not as yet been sentenced.

HIS HONOUR:   “Convictions” I should say; plural is it not?

MR CORR:   Yes.  He has not as yet been sentenced.

HIS HONOUR:   I realise that but you have a conviction on the record.  How are you going to get rid of the conviction?

MR CORR:   I would submit it would be within the jurisdiction of this Court or, in fact, any court to remedy a situation where it sees that there has been an error which has been committed earlier.

HIS HONOUR:   The remedy that the law provides for erroneous convictions is an appeal.

MR CORR:   Yes, Your Honour, but it is still open to a court whilst the proceedings are still underway to remedy any defect which has occurred in those particular proceedings.

HIS HONOUR:   Have you got authority for the proposition that this Court could, on a removal application, deal with a conviction recorded against your client without an appeal process being invoked?

MR CORR:   No, I do not, Your Honour.  But in relation to the bail application, I would submit that the application to have this matter removed into the jurisdiction of this Court means that, effectively, if that was successful, this Court would become the court at first instance.  It would not become an appeal court.  It would be looking at all the matters which are before the original court.  Therefore, the determination of the bail application should be as though this was a court of first instance.

In that particular case, I would submit that it is not one that requires extraordinary circumstances.  Merely the normal considerations as to whether the person is liable to answer to their bail and whether their liberty - - -

HIS HONOUR:   Why do you say that?

MR CORR:   Because if the matter was removed into this Court, then this Court would effectively become the court at first instance rather than an appeal court.

HIS HONOUR:   But it would only be appropriate to put that argument, if at all appropriate, at a stage when the matter was removed into this Court.

MR CORR:   Yes, Your Honour.  However, I would submit that it is also appropriate before that because it is still in the stage of becoming the court of first instance.  Even if you do not accept those submissions, I would submit that there are extraordinary circumstances, those matters which I adverted to earlier, namely:  the necessity for my client to be able to approach the elders of the Bundjalung and Noonuccal people to properly formulate his case and that is an extraordinary circumstance which is largely not applicable in any other case, and in such instance that bail should be applied.

I have also been instructed, Your Honour, that in relation to matters which were before the District Court, that Judge Craigie specifically has not registered a conviction.  That therefore means that the points which I made earlier in relation to the ability to remedy a defect are event stronger.  On those bases, Your Honour, I would submit that bail should be given to Mr Walker to enable him to properly obtain the material which would enable him to assist this Court.  If It please the Court.

HIS HONOUR:   Yes, thank you, Mr Corr.  Mr Barr.

MR BARR:   Your Honour, the respondent opposes bail.  The principal submission, Your Honour, is that in criminal proceedings, before bail is granted, Your Honour would have to find that there were exceptional circumstances for bail to be granted.  That is referred to in a number of cases which Your Honour has already heard from.  My submission, Your Honour:  in this particular case, there are no exceptional circumstances whatsoever.  The accused, whilst he is not on bail, he has not yet commenced even to serve his sentence. 

Your Honour would then look to even if there were exceptional circumstances, Your Honour would have consideration whether or not there was a likelihood of success of the application itself.  In these proceedings, in my submission, Your Honour would find that there is almost no prospect of success.  I refer to Your Honour’s judgment in the case of Walker handed down last week, in particular, where Your Honour found that, in relation to a submission in that case that -it was a question whether customary Aboriginal criminal law is something which has been recognised by the common law and which continues to this day.  That is a proposition which Your Honour rejected at page 3 of Your Honour’s judgment in that decision.

That is basically the matter which is sought to be determined in the summons if the matter is eventually removed to the High Court.  So, in that matter itself Your Honour would find that there would be no prospects of success.

Your Honour would also look to whether or not there was an alternative method to the applicant aside from proceedings in the High Court and, in this case, there is proceedings which could be commenced under section 5 of the Criminal Appeal Act in relation to an appeal against the conviction itself.  In particular, I refer Your Honour to the affidavit of the applicant, paragraph 8(e), where there is an allegation that the applicant did not get:

a fair trial, by reason of His Honour’s apparent bias against me as an Aboriginal person with a claim to prove Aboriginal Customary Law.  His Honour’s dismissive manner, and his discounting of issues of cultural significance denied me the opportunity of being given the benefit of the doubt by the Jury.  I was, therefore, denied, a fair trial.

In my submission, that is a matter which would properly be before the Court of Criminal Appeal, Your Honour, and not before this Court.

There are other matters which are raised in the applicant’s affidavit in relation to the conduct of the trial of His Honour Judge Craigie.  At paragraph (a) it deals with the Aboriginal customary law.  In my submission, that matter has already been dealt with by Your Honour’s judgment in the case of Walker of last week.

Paragraph 8(b) deals with:

the right to prove the survival of Aboriginal Customary Law -

In that respect, Your Honour, I would have to refer Your Honour to, very briefly, the facts of the matter and those are set out in the affidavit of Mr John Favretto, sworn on 20 December, Your Honour.  Does Your Honour have a copy of that affidavit?

HIS HONOUR:   Of 20 December?

MR BARR:   Yes, Your Honour.

HIS HONOUR:   Yes, I have that.

MR BARR:   Your Honour, paragraph 4 outlines the facts of the case and briefly the facts are the accused - - -

HIS HONOUR:   Why do we need to go into this?

MR BARR:   Your Honour, it deals with the matters raised in the affidavit and whether or not the matters raised in the affidavit have any bearing on the removal application.

HIS HONOUR:   Yes.  Anyhow, I have read the affidavit.

MR BARR:   Yes, Your Honour.  The matters which the applicant refers to in paragraph 8(b) deals with the survival of Aboriginal customary law.  In fact, the applicant was convicted of matters which had nothing whatsoever to do with Aboriginal customary law.  The matters which may have something to do with that law are still pending in the local court.  But the accused was convicted of assaulting a police officer in the back of a cafe and also discharging loaded arms in an attempt to avoid apprehension at that police officer also at the back of the cafe.  Neither of those matters have anything whatsoever to do with the incident which happened at the park which might broadly be considered to have something to do with Aboriginal customary law.

In my submission, when Your Honour looks to whether or not there is a chance of success, Your Honour would see that there is really no relationship between the summons to remove the matter and the convictions of the applicant.  That is a similar matter to paragraph - - -

HIS HONOUR:   The problem is we do not really know what the rule of customary Aboriginal law is that is sought to be invoked.

MR BARR:   Yes, Your Honour.  One other additional problem with that is that the summons refers to the laws of the Noonuccal people in the State of Queensland
but when Your Honour looks to the affidavit filed on behalf of the applicant of Mr Roberts, that deals with the Bungjalung tribe.  Mr Walker is a member of the Noonuccal tribe but he was in New South Wales at the time of the incident and, according to Mr Roberts, he was subject to the law of the Bundjalung people rather than the Noonuccal people.  So, again, the notice to remove really does not have anything to do with the proceedings before the District Court.

Unless I can be of any further assistance, Your Honour, those are my submissions.

HIS HONOUR:   Thank you.  Mr Corr, do you wish to say anything in reply?

MR CORR:   Only briefly, if my friend - - -

MR BARR:   I am sorry, there is just one further matter, Your Honour.  Assuming, Your Honour, that - a conviction has not been formally recorded, so, therefore, there would still be proceedings pending in the District Court until the sentence was finally recorded.  This stage of the matter is adjourned to 3 February.  If Your Honour was to grant bail,it could only be up to the period where there were still pending proceedings and then there would have to be a further application.  In my submission, it would be a waste of the Court’s time.

HIS HONOUR:   Thank you.  Mr Corr.

MR CORR:   With all due respect to Your Honour and my learned friend, Your Honour’s decision of last week in the matter of Walker was a decision of one judge and that there is a possibility that a Full Bench may determine that the law is in some other manner.  Therefore, I would submit that even though Your Honour has determined in that matter that Aboriginal customary criminal law does not apply, I would submit that there still is an expection of some description that the Full Court may decide - - -

HIS HONOUR:   What do you mean, “an expectation”?

MR CORR:   Yes, Your Honour is correct, that is an incorrect term.  There is a possibility that a Full Court may determine otherwise and that therefore I would submit that there is a possibility of success and that therefore bail should be granted to Mr Walker in order to prepare the case.

HIS HONOUR:   I can only act according to my view of the law, Mr Corr.

MR CORR:   Of course, Your Honour, I am not submitting otherwise.

HIS HONOUR:   And the matter is, at this stage, being determined before the application for removal comes on before the Court.  If the Court were to make an order for removal, then it seems to me that would give a different complexion to the application for bail.  I am not suggesting what the outcome should then be, but it seems to me that the circumstances would be significantly different from the circumstances as they presently apply.

MR CORR:   Yes, Your Honour.

HIS HONOUR:   Is there anything else you wish to say?

MR CORR:   No, Your Honour.

HIS HONOUR:   This is an application for bail pending the hearing of an application for removal under section 40 of the Judiciary Act 1903 (Cth) of certain proceedings in the District Court of New South Wales. In those proceedings, the applicant has been convicted of offences under the Crimes Act 1900 (NSW). He has not yet been sentenced. The removal application is

tentatively listed to be heard in this Court in February 1995.

It seems that the applicant wishes to challenge the validity of the convictions on the ground that the District Court of New South Wales did not give full faith and credit to the laws of the Noonuccal people which are said to form part of the common law of Queensland contrary to section 118 of the Constitution.

Just how the applicant can take advantage of section 118 which refers to “every State” in the sense of State of the Commonwealth is not evident to me. Further, counsel for the applicant is unable to identify what are the relevant rule or rules of customary Aboriginal law which form part of the law of the relevant State, namely, the State of Queensland.

No notice of appeal has been filed in relation to the convictions although, as I say, the intention of the applicant is to challenge the correctness or the validity of the convictions in the event that this Court sees fit ultimately to remove the proceedings.

The applicant is in custody pending sentence. As this is an application for bail pending the hearing of a removal application in proceedings in this Court in which the applicant seeks to challenge the convictions, it is proper to apply the principle often stated in this Court that bail will only be granted in exceptional circumstances. In my view, no such circumstances have been shown to exist in the present case. The applicant has been convicted by a jury. The basis on which section 118 is invoked, is, as I have said, not evident to me. Nor, having regard to what I have already said, are the prospects of removal or of ultimate success such as to enable me to describe them as exciting, to say the least.

In those circumstances, the application for bail is refused.

AT 11.05 AM THE MATTER WAS ADJOURNED SINE DIE