Farrow v La Franchi & Anor M17/1995 [1995] HCATrans 198 (9 June 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M17 of 1995

B e t w e e n -

ROBERT WILLIAM McINTYRE FARROW

Applicant

and

DAVID JOHN LA FRANCHI and THE MAGISTRATES COURT OF VICTORIA AT GEELONG

Respondents

Application for special leave to appeal

BRENNAN CJ

DAWSON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1995, AT 12.15 PM

Copyright in the High Court of Australia

MR D.B. SMITH: If the Court pleases, I appear with my learned friend MR D.R. MEAGHER, QC, for the applicant. As the Court can see, Mr Meagher is not here, he is in another place but I do appear with him. (instructed by Paul J. Rule)

MS S.M. CRENNAN, QC: If the Court pleases, I appear with my learned friend, MR J.D. McARDLE, on behalf of the first-named respondent. (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

BRENNAN CJ: The Deputy Registrar certifies that she holds the letter dated 8 June 1995 from the office of the Victorian Government Solicitor, advising that the second-named respondent does not intend to take an active role in this proceeding but will abide by any order of the Court save as to costs. Yes, Mr Smith?

MR SMITH: Might I commence by dealing with the first three grounds set out in the applicant's summary of argument together. Might I also refer to the matter which your Honours will be very familiar with, section 14(4) of the Victorian Supreme Court Act 1984 , which deals with the question of the need to get leave to appeal in interlocutory matters. I do not wish to go through the facts in anything but a short way. The applicant, Mr Farrow, had appealed to the Full Court of the Victorian Supreme Court from a decision made by Justice Eames on 31 May 1994. The decision related to the events set out in paragraphs 2 to 6 in part II of our summary of argument.

It is submitted that it is unnecessary for me with the time available to go through those; your Honours are doubtless well aware of them. But I would like to discuss perhaps more fully the events that happened in the Full Court on the day when the appeal was listed. Before the Full Court on the day, the court comprising Justices Brooking, Hampel and Smith, senior counsel announced his appearance and had scarcely resumed his seat when he was informed by the court that the appeal was incompetent as the orders of Justice Eames were interlocutory and leave to appeal had to be obtained.

Frankly, if I may adopt this conversational mode, with respect, all counsel were absolutely confounded. No one had considered this. All had considered, I assume, that these were final orders and no application for leave had been made. No objection had been raised by counsel for the respondent, no argument on this point had been raised in their summary of argument. His Honour Mr Justice Brooking said that this was so because of the authority of a case in the Victorian Reports, Monash University v Berg [1984] VicRp 30; (1984) VR 383, and it is one of the cases referred to by both sides in this case.

His Honour declared quite categorically and unequivocally that that particular case authoritatively decided the issue. Senior counsel for the appellant, who was Mr Meagher, then made an immediate oral application for leave to appeal. There was no further argument or discussion about the effect of Monash University v Berg, and that is made quite plain in the application book. If I can take your Honours to page 56 of that book - - -

DAWSON J: All of this is very interesting, but what is the point of principle you say that attracted special leave?

MR SMITH: The point of principle that - we say that it can be put on several bases. We would say that the orders of Justice Eames were final orders, and I would like to develop that argument. We also would say that even if the Court found that the orders of Justice Eames were not final orders but interlocutory orders, that nevertheless leave should have been given for a number of reasons which I will attempt to develop. They are principally the reasons that we have come. Your Honours will note that there are two other grounds listed in the - - -

BRENNAN CJ: What is the question of principle that is involved?

MR SMITH: We would say that the principle is this. Farrow, the applicant, had made submissions that the offences for which he was before the court did not disclose offences known to the law, that the informant did not have the power or the authority to lay those informations and in respect of other ones, that they were laid beyond the time set out in the statute. The argument that we would put is this, that even if the orders of Justice Eames were found to be interlocutory, and we would argue that they were final, even if the case is such that it would be a substantial injustice to the applicant if he was required to stand his trial - it is a Magistrates Court hearing - for offences that disclosed no offence. We would go further to say that if no - - -

DAWSON J: That is not a point of principle. That point was considered by the Court below, it was taken into account, as against the undesirability of fragmenting the trial.

MR SMITH: Yes, it was. It is submitted they were wrong.

DAWSON J: They may have been, but where is the point of principle?

BRENNAN CJ: We do not rectify wrongs, you will be surprised to hear, unless - and it is the unless that is important.

MR SMITH: Yes. Your Honours raised this issue of the fragmentation of a criminal trial.

DAWSON J: I said it was considered by the court below.

MR SMITH: That is one of the ways in which it was considered by the court below. May I put it this way? What does it matter? If a person has a right, a true right, it is an unalienable right and it does not matter, it is submitted - - -

DAWSON J: I do not understand that, or its relevance.

MR SMITH: May I develop it just a bit further?

DAWSON J: Yes.

MR SMITH: We would say that - and I can perhaps put it a little bit more eloquently, perhaps I need to. We say that these informations do not disclose an offence. It was dealt with by Justice Eames, Justice Eames himself conceded that they were complex and difficult matters and without going back through - I may if your Honour wishes me to - going back through Justice Eames' reasons, it was clear that these were matters that he felt were serious, that he felt should be considered before the trial. The important part about those matters was that if the applicant had won, that was the end of the matter. He would not have had to stand trial at all. But the applicant did not win.

In the Full Court those issues were not properly canvassed because there was no leave given to prosecute the appeal. The proceedings in the Full Court were not properly discussed or decided, it is submitted. Justice Brooking in his judgment in the application book at page 56, around about line 10, he stated, and your Honours will excuse me, he stated that:

One of the things which an applicant for leave to appeal must show is that substantial injustice would be done if the order, assumed for this purpose to be wrong, was allowed to stand. I think that at this point the present application breaks down.

That was his, it is submitted, his principal reason for rejecting the leave to appeal, by saying that there was no substantial injustice that would be suffered by Mr Farrow. We say that there is an injustice, that Mr Farrow, the applicant, would never be able to agitate these matters again because of the stare decisis, the magistrate would not be permitted to deal with them, that - - -

GUMMOW J: But the net result that you would seek to obtain from this Court would be more than that the matter go back to the Victorian Appeal Court, would it not, for the hearing of the appeal?

MR SMITH: Yes, that is right. The respondent, in their argument, says that if the application is granted that that is the appropriate course and we agree with that.

GUMMOW J: So the only point of principle that could be involved here concerns the interlocutory or non-interlocutory nature of what happened below?

MR SMITH: That is the first point of principle, yes.

GUMMOW J: That is the only one, is it not? Because we would then, if we agreed, have to send it back for the appeal to be heard for a first time?

MR SMITH: Yes, that is right. If I might try to develop that. His Honour Mr Justice Brooking referred to the authority of Monash University v Berg. He said that case authoritatively decided the issue. It is submitted that that case can be distinguished. Justice Brooking was definite that the issue was established by that case, but it is not, in our submission. It is an entirely different case to this case of Farrow v La Franchi.

GUMMOW J: What about the statement in Monash at 386 in the third paragraph where a number of authorities are collected? Do you dispute that conclusion there? The paragraph beginning "The relief sought", and then it refers to certiorari.

MR SMITH: Page 386, your Honour?

GUMMOW J: Page 386 of Monash University. Do you say those authorities do not bear out that proposition?

MR SMITH: No, I do not say they do not bear out that proposition. I do not say that at all. I say that this case of Farrow was different, it was different in that even though it was relief in the nature of a writ of certiorari, and that is a discretionary remedy and on those authorities that discretionary remedy must be seen to be as interlocutory, that this case of Farrow was different. It was different because, if I might go back to this, if the applicant had succeeded, the case was over. He would not have been brought to trial, all informations would have been dismissed. That would have been the end to it.

Even though he lost, it is submitted, the issues, those particular issues between the parties, were finally decided, he could not go back. He could not agitate them again except on appeal and it is submitted that that puts it in an entirely different category to Monash University v Berg, which was a case, as your Honours know, relating to an arbitration where both parties wanted to remit the matter back to the arbitrator. It is very different. I would, with respect, like to pursue the argument that even if your Honours did find that these were interlocutory orders, that nevertheless leave to appeal should still be granted.

It is conceded that all of the members of the Full Court took the view that these orders were interlocutory. If I might refer the Court to paragraphs 12, 13 and 14 of the summary of argument. I will not discuss them but simply refer you to them - but if I might put this: the questions before Justice Eames were matters of general importance, and he said that himself. He said that himself on page 9 of the application book, and your Honours will see, if I might quickly refer to it, at the top of page 9:

In the first place, I am satisfied that there are serious questions to be decided. The challenge which Mr Meagher makes to the charges was of obvious weight, even when considered in outline, only, for the purpose of resolving the threshold point. If Mr Meagher's submissions were right then there was a real prospect that this prosecution would come to an end. The matters at issue are not mere rulings as to the admissibility of evidence.....nor challenges to the ruling.....nor complaints about the absence of particulars of the charge. These are not committal proceedings, but summary hearings which, subject to appeal, will determine the charges, the interruption and delay to the criminal process is not, therefore, as great as would be the case if I was concerned with committal proceedings.

Justice Smith took a similar view about the importance of it on pages 58 and 59. He said at the bottom of page 58:

I may be old fashioned, but I expect an offence to be clearly expressed and stated in the legislation concerned. Here, on any view, the alleged offence is not. In my view, a strong case can be put that no offence is disclosed on the information.

So, although the Full Court was united in the opinion that it was an interlocutory judgment, they were not united in the opinion that the informations were offences unknown to the law. Unless leave is granted, it is submitted, the appellant will never have the opportunity to test Justice Eames' reasons for judgment. We submit again, these were matters of considerable complexity and that they have not been dealt with by any previous authority on this point.

It might be said - I have to race here as I see the yellow light is on - the respondents state that this is not just an issue of general principle which would provide a guide in other case. Presumably this is because the relevant legislation has been repealed. But the general principle remains, it is submitted. No one should be arraigned and forced to defend charges when there is no offence known to the law, and where the laying of the informations were statute barred. I will not propose to take any further of the Court's time by dealing in any other matters, particularly (d) and (e), but I rely on the written submissions. The principal point that we make, and we make strongly, is that even if the Court should find that these were interlocutory orders, then in the interests of justice, and in the interests of principle, leave should still have been granted. If the Court pleases.

BRENNAN CJ: Thank you, Mr Smith. Ms Crennan, there is only one question that we would trouble you with.

MS CRENNAN: Yes, your Honour.

BRENNAN CJ: What is the situation of the applicant before the magistrate and on any appeal to the magistrate in relation to the challenge to the correctness of Mr Justice Eames' view?

MS CRENNAN: There are two rights of appeal which we mention in our written outline, your Honour.

BRENNAN CJ: Do you depend upon any question of res judicata?

MS CRENNAN: We do, your Honour. What we say is, there would be no issue estoppel in relation to the decision of his Honour Mr Justice Eames in the sense that an appeal, whether it is to the County Court or whether it is to the Supreme Court, in either event there can be a referral to the Full Court on a question of law. That would be the way in which the Full Court would have an opportunity to pass on the matters which were ventilated before his Honour Mr Justice Eames. The County Court justice, pursuant to the appeal route under section 83 of the Magistrates Court Act, can reserve a question of law for the Court of Appeal under the Crimes Act under section 446 - - -

BRENNAN CJ: So he would not be bound?

MS CRENNAN: No, your Honour.

BRENNAN CJ: That is all we wanted to know.

MS CRENNAN: If your Honours please.

BRENNAN CJ: Without determining the correctness of Monash University v Berg () VR 383, this application does not raise a question of principle of sufficient importance to justify a grant of special leave. Accordingly, special leave is refused.

AT 12.38 PM THE MATTER WAS CONCLUDED