Yisrael v District Court of NSW

[1996] HCATrans 374

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S138 of 1996

B e t w e e n -

PHILLIP YISRAEL

Applicant

and

DISTRICT COURT OF NEW SOUTH WALES

First Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 2 DECEMBER 1996, AT 10.14 AM

Copyright in the High Court of Australia

MR G.D. WOODS, QC:   May it please the Court, I appear for the applicant.  (instructed by Daniel Svir)

MR G.S. HOSKING, SC:   If your Honours please, I appear with my learned friend, MR A.M. BLACKMORE, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

MR WOODS:   If it please the Court, this is a matter raising, we say, an important criminal law matter.  It is a special leave point because, firstly, the remedy of certiorari is relevant in all jurisdictions, regularly used in criminal proceedings and in other proceedings, and it is not simply a State matter.  The second aspect of this case, your Honours, is the right to silence, which we say is also a matter of general importance in the administration of criminal law anywhere in the country. 

GUMMOW J:   What is the appellate structure in New South Wales, Mr Woods, from the decision of the District Court judge here?

MR WOODS:   What is the appeal?

GUMMOW J:   Yes, if any.

MR WOODS:   There is basically no appeal.  If the matter comes from the magistrate to the District Court on a summary matter, from the magistrate to the District Court, by and large it finishes at the point of the District Court appeal, because of section 146 of the Justices Act which limits appeal, but it has been the practice here for many years that, if a matter does attract a prerogative relief, it can go on to the Court of Appeal.

GUMMOW J:   What is the limitation in section 146?

MR WOODS:   The limitation in section 146, your Honours, is that which is set out in the application book at ‑ ‑ ‑

GUMMOW J:   It is the operation of 146 that is the important element in any prerogative relief.

MR WOODS:   It is indeed.  But, in New South Wales it has regularly been operated on ‑ ‑ ‑

GUMMOW J:   I know it may be regularly operated on; I just want the text, that is all.  It is at page 22.

MR WOODS:   Page 22, your Honours, yes:

“No conviction or order of a Justice or Justices, or adjudication upon appeal of the District Court, shall be removed by any order into the Supreme Court.”

GUMMOW J:   Against that background, you then have to show error of jurisdiction.

MR WOODS:   Your Honour, that is so.

GUMMOW J:   How do you do that?

MR WOODS:   We do that by saying that the ‑ ‑ ‑

GUMMOW J:   Granted the importance of this right, nevertheless, how is there a jurisdictional question?

MR WOODS:   It is a jurisdictional error, your Honour, rather than a mere irregularity, or misdirection, because what his Honour has done in hearing this appeal in the fashion that he did, was to, in effect, reverse the onus of proof and to conduct a proceeding as if it were not a common law criminal trial under Australian common law, but an inquisition, or inquisitorial proceeding, as it were, under some other system of proceeding. 

When his Honour, in effect, as the courts found, drew adverse inferences against my client, on the basis of what was said to the police, “No comment”, his Honour has, in effect, gone beyond the boundaries of the normal framework of the criminal trial as it is practised in this country and, his Honour Mr Justice Meagher pointed out its importance, and he cited some authority to the effect that the fundamental right, which presumably this Court would accept as fundamental in some senses, we do not contend that any breach or non‑observance of the right to silence would necessarily attract this remedy, or indeed, the intervention of this Court.  But we do say that, in this case, his Honour has clearly found adversely because of that inference that he drew, wrongly. The court below has, in effect, accepted that.  All the judges have accepted that.  It is important to establish whether or not that failure is so gross and fundamental as to, in effect, nullify the jurisdiction.

Your Honours, it is not necessary, in our submission, that there never have been jurisdiction in order for there to be jurisdictional error.  Judge Viney started out with jurisdiction; the matter was brought properly by way of process, but the matter having got before him, he then exceeded or misconceived his jurisdiction in the way that is described in the judgment of his Honour Mr Justice Meagher.

TOOHEY J:   But, in putting the matter that way, you seem to accept that there could be a misunderstanding, or a misapplication, of the rule relating to silence, which would not constitute jurisdictional error, but that in this particular case, as I understand you, you say the error was so gross that it constitutes jurisdictional error.  Now, that is not an easy ground to draw, is it?

MR WOODS:   Your Honour, I only do so out of caution, lest there be some case that might be contemplated in which there might be no such effect.  For example, my friend handed to me this morning a case of Glennon, which is a decision of this Court, in which the Court rejected an application ‑ or made the point that what the judge had done was to tell the jury, “You can’t draw any adverse inferences, but you can take it into account in relation to veracity and credibility.”  Now, in that case, this Court, in fact, upheld the appeal and confirmed ‑ may I hand up a copy of that report, your Honours.  But, in broad, your Honours, we ‑ ‑ ‑

BRENNAN CJ:   But this does not touch the question of jurisdiction.

MR WOODS:   Your Honour, that is so but, your Honour, we say the jurisdictional issue is enlivened here because no judge of an Australian court, once he starts off the jurisdiction, can convert the proceedings into something else ‑ after lunch he comes back wearing a Ku Klux Klan hat, or starts diverting himself ‑ ‑ ‑

BRENNAN CJ:   No, he cannot change it.  Now, the question is whether or not he did make an adjudication upon appeal within the meaning of 146.

MR WOODS:   Your Honour, we, with respect, contend that he did not?

BRENNAN CJ:   And why not?

MR WOODS:   Although he has recited the words, as this Court has said in Caltex and Petty and so on, the right to silence is fundamental ‑ ‑ ‑

BRENNAN CJ:   Let that be accepted.  It is fundamental.  In any case where it is not observed, there has been a miscarriage of justice; let us assume that.

MR WOODS:   Your Honour, what we say with regard to jurisdiction is, that a breach of that principle ‑ so fundamental a principle ‑ has other consequences.  The other consequences are, in effect, reversal of the onus of proof, and the abolition, in effect, of the presumption of innocence, for that particular person in that particular case.  And, we would argue that the judge, in making this kind of error, converts the proceedings and goes beyond his jurisdiction, converts the proceedings into something different, not just like wrongly admitting the evidence of X or Y, or giving a misdirection of a less important kind, he changes the nature of the proceedings, with the consequence that he then, by that mechanism, goes beyond jurisdiction and it nullifies, as a juridical decision, the orders that he makes.  In essence that is the way we put our case.

My friend refers briefly, in his written submissions, to some words of the great judge, Mr Justice Dixon in the Parisienne Basket Shoes Case, but we respond to that by saying, “That is a decision on prohibition. It is not a case dealing with certiorari”, and as his Honour Mr Justice Dixon said in that case, 59 CLR at 391, at the bottom of the page, point 9:

it must not be forgotten that this tendency ‑

that is to say, the tendency for the Courts of Appeal to draw cases unto themselves for determination ‑

was manifested in proceedings by certiorari and not in prohibition.

So that we would submit that what my friend draws from that case is not really helpful to him.  This matter, as minor as it is in its first manifestation before the Magistrates Court, generally raises an issue of importance for other States and for the criminal courts of New South Wales.  It has not been determined.  The Courts have repeatedly said that the right to silence is fundamental and we would respectfully submit that one aspect of that fundamental importance of the right to silence is that, because it reverses the onus of proof, rebuts the presumption of innocence, it results in nullification of the proceedings.  Those are my submissions.

BRENNAN CJ:   Thank you, Mr Woods.  We need not trouble you, Mr Hosking.

The problem in this case is not whether the failure to observe the right of silence was important or fundamental; it is whether the failure occurred in the exercise of jurisdiction.  Clearly it did.  There are therefore not sufficient prospects of success to warrant a grant of special leave.  Special leave will be refused.

MR WOODS:   If the Court pleases.

AT 10.26 AM THE MATTER WAS CONCLUDED