Wheeler v Fredericls

[1998] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B47 of 1997

B e t w e e n -

MALCOLM EDWARD WHEELER

Applicant

and

ANDREW STUART FREDERICKS

Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 12.33 PM

Copyright in the High Court of Australia

BRENNAN CJ:   You are Mr Wheeler?

MR M.E. WHEELER:   May it please your Honours, my name is Malcolm Wheeler.  I am a solicitor in private practice in Townsville.  I appear as solicitor for myself, the applicant.

BRENNAN CJ:   Yes.  We treat applicants who appear for themselves as applicants appearing in person, Mr Wheeler.  Yes.

MR R.G. MARTIN:   May it please, your Honours, I appear with my friend, MR T.A. FULLER, for the respondent. (instructed by Director of Public Prosecutions (Queensland))

BRENNAN CJ:   Yes, Mr Wheeler.

MR WHEELER:   Thank you.  I might just mention, your Honour, that Mr Rose was briefed as counsel.  However, circumstances have arisen whereby it has been agreed that I appear today without counsel.

BRENNAN CJ:   Well that is a matter for you, Mr Wheeler.

MR WHEELER:   I have handed up today two sets of further submissions and I have provided a copy to my colleague.  The first submission concerns the grounds for special leave.  The second concerns the substantive merits of the appeal itself.  I have also handed up copies of six cases.

BRENNAN CJ:   Do you need an application for an extension of time in which to lodge your application for special leave?

MR WHEELER:   I do not think so, your Honour.  I have canvassed that in my reply.

BRENNAN CJ:   No, I do not think you do.

MR WHEELER:   I just did not understand the significance then, your Honour.

BRENNAN CJ:   Yes, very well.  Go ahead, Mr Wheeler.

MR WHEELER:   I have also handed up copies of six cases, your Honour, four of which are referred to in the second submissions.  There is a fifth case referred to in the second submissions that I handed up dealing with the merits of the appeal itself.  It is a case of Ibbotsen which I inadvertently omitted to hand up and I apologise for that omission, your Honour.  I have only just discovered it.

BRENNAN CJ:   Mr Wheeler, your application for special leave to appeal is against a refusal of an extension of time?

MR WHEELER:   That is correct, your Honour.

BRENNAN CJ:   Is that right?

MR WHEELER:   That is correct, your Honour.

BRENNAN CJ:   Now, why should we entertain an application for special leave to appeal against a question about extension of time?

MR WHEELER:   Because, your Honour, the judgment of the Court of Appeal is clearly erroneous and there is a question of considerable public importance to be considered.  That question is the status of a conviction or finding of guilt when no conviction is entered, no conviction is recorded.

BRENNAN CJ:   These are matters which no doubt weigh upon a court in the exercise of a discretion to extend or not to extend time.  Why should we entertain an application for special leave to appeal on a time extension?  You are familiar with the problems of time extension.  They happen every day of the week in the courts.  This Court does not usually grant special leave to appeal to consider practice matters.

MR WHEELER:   Your Honour, the judgment went further.  It purported to deal with the merits of my appeal and ‑ ‑ ‑

BRENNAN CJ:   Perhaps it did but your appeal was what - how long out of time?  A year, was it not?

MR WHEELER:   Yes, almost a year.

BRENNAN CJ:   Well, I mean there is a case, there is a year out of time in which there is lodging of appeal to the Court of Appeal and you want to come here to this Court and ask us to grant special leave to consider whether an application for an extension of time a year out of time should justify a grant of special leave.  That is really a major question for you to address I think, Mr Wheeler.

MR WHEELER:   No, your Honour, I have already lodged an appeal to the District Court in time.

BRENNAN CJ:   Well, maybe so.

MR WHEELER:   It has been my proposition from the start that the District Court alone had jurisdiction and that the court below did not have any jurisdiction.  That is the substantive question.  That is the status of an unrecorded conviction that I wish to have cleared up.  I did not appeal in time to the Court of Appeal because I did not think it had jurisdiction and it clearly does not have jurisdiction.  In fact, there has been legislation passed now taking the jurisdiction away from it and giving it to the District Court alone and that legislation was, in effect, before the Court of Appeal handed down its judgment.  It had become effective nine days or eleven days beforehand.

BRENNAN CJ:   Is that not an additional reason why special leave should not be granted?  It is already dealt with by statute.  There is no great question of law for this Court to determine.

MR WHEELER:   It remains an authority on the record while it is allowed to stand there and it is clearly wrong, your Honour.  It would be, I submit with respect, corrupt to allow it to remain like it is.

BRENNAN CJ:   You put your argument, Mr Wheeler.

MR WHEELER:   On the grounds for special leave?

BRENNAN CJ:   You put your argument in whatever way you wish but you should understand from what I have said to you that you have, I think, some very large obstacles to overcome.

MR WHEELER:   Yes.  As I understand it, it would be an important function of this Court to try to enhance the quality of the work of intermediate appellate courts.  The exposure of serious errors by this Court is really necessary as a part of that function and as I say, the court below has clearly erred.

GAUDRON J:   You keep saying that but part of your argument to that effect must be that there was clearly an appeal to the District Court and where do you find any statutory provision to that effect?

MR WHEELER:   Under section 222 of the Justices Act, your Honour ‑ ‑ ‑

GAUDRON J:   What did that say at the time?

MR WHEELER:    ‑ ‑ ‑ and that is an appeal from a conviction, that is an appeal from an order.

GAUDRON J:   Exactly.  I am not too sure about that.  Would you go to the words of that section please?  “Made by any order in a summary manner”. So you say there was an order.  What was the order because there was no conviction entered?

MR WHEELER:   An order is defined in section 4 in the definition section as “any determination or finding”.  It is the finding of guilt that constitutes the order under the Justices Act and I was appealing to the District Court against that order of the magistrate.  He did not proceed to a conviction and I wish that appeal to go ahead to the District Court and now the situation is that the Court of Appeal of Queensland has corruptly decided that it has to ‑ ‑ ‑

GAUDRON J:   I think you could leave aside words like “corruptly”.  I think that is tendentious and it does not befit a practitioner of any court.  Now you know better than that.  A certain latitude is being allowed to you as a litigant in person but you do have certain responsibilities.  There is no basis for any such allegation in terms of any of the material that has been put before this Court and the question is simply whether the Court of Appeal correctly construed some quite complicated legislative provisions.  You have twice accused the court of corruption.  In my days as a legal practitioner that would have brought a swift rebuke from the professional body.

MR WHEELER:   I withdraw the remark, your Honour.  I was merely trying to demonstrate the seriousness of the situation.

BRENNAN CJ:   Lest there be any misunderstanding, I would accept and agree with every word that has fallen from her Honour.

MR WHEELER:   Yes, your Honour.

BRENNAN CJ:   And I would say my experience in this State is precisely the same as that which she indicated.

MR WHEELER:   Yes, your Honour.

BRENNAN CJ:   But you proceed.

MR WHEELER:   The problem at the present time is that the Court of Appeal has purported to deal with my appeal having denied itself jurisdiction by refusing an extension of time, then proceeding as though it had given time and dealt with the merits of - by some remarkable situation purports to deal with the merits of my appeal without covering one issue that I raised, the serious issues involved.

GAUDRON J:   The fact of the matter is this was an indictable offence heard summarily.

MR WHEELER:   That is correct, your Honours.

GAUDRON J:   And what are the appeal provisions with respect to such offences?

MR WHEELER:   This was a determination by a magistrate.

GAUDRON J:   Of an indictable offence?

MR WHEELER:   Yes, and the Court of Appeal of Queensland can only have jurisdiction - it has no jurisdiction unless there is a conviction and the
Penalties and Sentences Act says that it is taken to be no conviction if it is not recorded as a conviction.

GAUDRON J:   Well it also says in section 12(4) that it:

does not stop a court from making any.....order that it may make under this or another Act because of the conviction; and -

it -

has the same result as if a conviction had been recorded for -

certain purposes set out in subsection (4)(b).  Admittedly they do not include an appeal against conviction.

MR WHEELER:   Yes, your Honour.

GAUDRON J:   The question really is does it come within (a)?

MR WHEELER:   Your Honour, the court referred to there is not the Court of Appeal, it is the court of trial.  The predecessor of section 12 shows that quite clearly.  Section 12 of the Penalties and Sentences Act is a successor to section 657A of the Code and if you read the Code it spells it out that that is the court of trial that is referred to there.  Even if it did not spell it out it says it can make “any other order” so that presumes that there is another order somewhere otherwise they would not talk “any other order” and the order that they are talking of in the first place is the order exercising the discretion not to record a conviction.

BRENNAN CJ:   Mr Wheeler, if your application was successful and the appeal was successful, what would that lead to in terms of an order from. this Court?

MR WHEELER:   An order saying that the Court of Appeal had no jurisdiction to entertain my application for an extension.  That is where the court erred - in entertaining.  It should have said, “We have no jurisdiction, take your application away.”

BRENNAN CJ:   You made the application.

MR WHEELER:   Yes, but I made that and I have clearly spelt it out in my submissions.

BRENNAN CJ:   Yes, but you made the application.

MR WHEELER:   Because the ‑ ‑ ‑

BRENNAN CJ:   So the order against which you are appealing is a refusal of the application which you made.

MR WHEELER:   I am appealing against the whole of the judgment of the Court of Appeal and as I say there is more than one point to it.  It dealt - and not only does it refuse ‑ ‑ ‑

BRENNAN CJ:   You do not appeal against reasons for judgment, you appeal against a judgment and the judgment is application for extension of time refused.  If this Court was to entertain an appeal, what would it do?

MR WHEELER:   It would declare that the Court of Appeal has no jurisdiction.

BRENNAN CJ:   There is no application for a declaration which has been refused by the Court of Appeal.  There is an application for extension of time, that is all.  You chose to make it.

MR WHEELER:   I want an order to say that the District Court has jurisdiction.

BRENNAN CJ:   Well - - -

MR WHEELER:   And that the District Court is not bound by a purported determination of the merits of my appeal.

GAUDRON J:   The way to do that was to either have the District Court hold that it had jurisdiction or hold that it did not leaving it to the parties to proceed on appeal thereafter.

MR WHEELER:   Yes.

BRENNAN CJ:   You chose your own procedure, Mr Wheeler.

MR WHEELER:   That is true, your Honour, yes.

BRENNAN CJ:   And that is the problem which you now face.

MR WHEELER:   Yes.

BRENNAN CJ:   You see, if we were to grant special leave to appeal, allow the appeal, the ordinary consequence of that would be appeal allowed, order of the Court of Appeal set aside, in lieu thereof order that the extension of time be granted.  That is not what you want at all.

GAUDRON J:   And your other difficulty ‑ ‑ ‑

MR WHEELER:   I would prefer that as an alternative, your Honour.

BRENNAN CJ:   You might prefer it but it is not going to get you far, is it?

GAUDRON J:   Your other difficulty, surely, is section 673(2) of the Code as it stood at the relevant time which said:

The rights conferred by -

subsection (1), which was a right to appeal as if convicted on indictment -

are conferred to the exclusion of any.....right.....conferred by the Justices Act.

MR WHEELER:   Yes, that is quite right, your Honour.

GAUDRON J:   So that may mean that you had no appeal anywhere.  If you are right about the Court of Appeal not having any jurisdiction, it may mean nobody had any jurisdiction.

MR WHEELER:   Yes, that is a possibility and that is why I have come to this Court to try and clarify - that is one of the things that needs to be clarified to establish the status of a conviction not recorded.

GAUDRON J:   Well, accept that the matter has now been clarified by amendments.

MR WHEELER:   Sorry?

GAUDRON J:   The matter has now been clarified for the future by amendment.

MR WHEELER:   It has not, with respect, your Honour, because you could have a jury verdict which is not recorded as a conviction and the question will arise immediately as to whether the Court of Appeal has jurisdiction.  That need not arise in the future if a decision is made today or if, depending on how the decision goes, it will clarify the situation.  Brown is a case - I mentioned it in my submissions - where there was a jury verdict and the judge on the Bench decided not to record a conviction and that is just one example, so it will certainly arise in the future and it will be, as I submitted in today’s submissions, that will occur more often from now on because of these recent amendments that you refer to.

Defendants properly advised will not be accepting summary resolution of their charges.  They will seek a jury verdict because the appeal, consequent upon a summary jurisdiction, is final once it goes to a judge of the District Court and each judge will have his own view.  It will become chaotic, I submit, because the appeal is final and conclusive.  It will not get to the Court of Appeal at all.  I am sure, your Honours, that the question will arise again in the future.  There is absolutely no doubt about that.  The very question that I am raising on this application is a judicial declaration as to what is the status of a conviction that is not recorded. 

You see, the definition of “conviction” in the Penalties and Sentences Act is, “a finding of guilt, or.....a plea of guilty”, so, in effect, the Act says that it is not even a finding of guilt so it is declared not to be taken as finding of guilt.  Is a person in respect of whom a conviction is not recorded entitled to assert to the world that “I have never been convicted” even though for a moment the magistrate found the person guilty and then immediately said, “I do not record a conviction”.  Is a newspaper entitled to report such a proceeding when the Act says that there shall be no record at all except in the court files of the conviction.

GAUDRON J:   Those questions do not strictly arise in this application, do they?

MR WHEELER:   Yes, they do, your Honour.  They concern me personally and I think they ‑ ‑ ‑

GAUDRON J:   I know they concern you personally but ‑ ‑ ‑

MR WHEELER:    ‑ ‑ ‑and I think it is in the interests of the public that it be resolved and the opportunity be taken.

GAUDRON J:   The question, in essence, is whether instead of making an order refusing an extension of time, the Court of Appeal should have made it an order that the proceedings before it were incompetent.

MR WHEELER:   Yes, that is - - -

GAUDRON J:   Yes, and you did not ask it to do that.  In fact, it would have been contrary to your own document to ask to do that.  You may well have been estopped from even asking the court to do that once you had lodged your application to it.

MR WHEELER:   Yes, I realise that is a fundamental flaw in the thing, that I was seeking a determination because the Director of Prosecutions said, “I will knock you in costs if you proceed with the District Court appeal” -  I have got a letter on the record there from them saying that -“because  we think that the District Court does not have jurisdiction” and I submit, with respect, that if any court has jurisdiction it is only the District Court before the recent amendments came into effect and that is another question too, is the retrospectivity of the recent amendments.  That is section 672 under which the Court of Appeal gained the jurisdiction - could only possibly gain the jurisdiction has been repealed and that would be a procedural repeal and that would relate back to the commencement of the appeal.  As I say, it was already in effect before the Court of Appeal handed down its decision.

BRENNAN CJ:   I am afraid your time has expired, Mr Wheeler.

MR WHEELER:   Thank you.  May it please your Honour.

BRENNAN CJ:   We do not need to trouble you, Mr Martin.

The application for a grant of special leave to appeal against a refusal by the Court of Appeal to extend time for an appeal to that court does not raise a question which warrants consideration by this Court.  Insofar as the question arises as to the jurisdiction of the Court of Appeal on appeal from a finding of guilt without conviction, to entertain such an appeal, that question should be determined, if at all, by the Court of Appeal in an appropriate case by reference to the contemporary statutory provisions.  This case is not a suitable vehicle for considering that question.  Accordingly, special leave will be refused.

Court will adjourn to a date to be fixed.

AT 12.57 PM THE MATTER WAS CONCLUDED