Stefanovska v Murphy & Anor M26/1995 [1996] HCATrans 52 (5 February 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M24 of 1995

B e t w e e n -

TRUNG DONG NGUYEN

Applicant

and

THE MAGISTRATES' COURT OF VICTORIA & ANOR

Respondents

Office of the Registry

Melbourne No M25 of 1995

B e t w e e n -

SHANE RAYMOND WILLIS

Applicant

and

THE MAGISTRATES' COURT OF VICTORIA & ANOR

Respondents

Office of the Registry

Melbourne No M26 of 1995

B e t w e e n -

MARIA STEFANOVSKA

Applicant

and

SENIOR CONSTABLE DARREN MURPHY & ANOR

Respondents

Office of the Registry

Melbourne No M27 of 1995

B e t w e e n -

ELVIS STEFANOVSKI

Applicant

and

SENIOR CONSTABLE DARREN MURPHY & ANOR

Respondents

Applications for special leave to appeal

BRENNAN CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 FEBRUARY 1996, AT 11.07 AM

Copyright in the High Court of Australia

___________________

MR P.G. NASH, QC: If the Court pleases, I appear with my learned friend, MR D.A. PERKINS, for the applicants in each matter. (instructed by Kuek & Associates)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MR T.V. HURLEY, for the respondents in each of these applications. (instructed by the Victorian Government Solicitor)

BRENNAN CJ: The Deputy Registrar advises that she has been informed by the Victorian Government Solicitor, solicitor for the Magistrates' Court of Victoria, the first respondent in M24 of 1995 and M25 of 1995, and the second respondent in M26 of 1995 and M27 of 1995, that the Magistrates' Court of Victoria does not wish to be represented at the hearing of these applications for special leave to appeal and will submit to any order of the Court save as to costs. Yes, Mr Nash.

MR NASH: If the Court pleases, if I may hand to the Court copies of the authorities upon which the applicants rely and while that is being done indicate to the Court that it is not intended to proceed or to put any argument to the Court in relation to the grounds other than the grounds in the application books other than the grounds relating to the refusal of leave to tape record. I should also indicate to the Court that if leave is granted, leave will be sought to amend the draft notice of appeal in Stefanovski and Stefanovska to add to the relief sought an order that the conviction recorded against the appellant on 4 August 1993 be set aside and in the case of Nguyen an order that the sentence passed on the appellant on 12 January 1994 be set aside.

TOOHEY J: The conviction in Nguyen is not a matter with which we are concerned, I take it?

MR NASH: It cannot be raised, your Honour. It is in response to a plea.

TOOHEY J: Having regard to the earlier history of the matter.

MR NASH: Yes, your Honour. The basic grounds of the application are almost simplistic. We contend that the decision of the Court of Appeal lacks logical validity because it commences from the wrong premise. The Court of Appeal and the judges at first instance all proceeded on the basis that there was no right to record unless the magistrate in his discretion granted leave. Our prime contention here and if we obtain leave is that the onus is not on a litigant before the court to show why he should be allowed to use modern technology to record or to keep notes but rather on the court or those who wish to oppose the recording to show that it is not in the interests of justice.

TOOHEY J: Mr Nash, there seems to me to be some difficulty with the way in which these applications have come before the Court because the magistrate's ruling in each case, in one case in regard to submissions in mitigation, in the other case relating to the proceedings themselves, the challenge was made by order to review basically, as I understand it. What is the position of the proceedings? Have they been held in abeyance?

MR NASH: In three of the four cases, your Honour, the proceedings - in two cases there has been a hearing and a conviction following the calling of evidence. In a third case, Nguyen, there has been a conviction and sentence following a plea. In the case of Willis, the matter is still in abeyance. If I can take your Honour's point, there is one matter which is live and we contend that the others are live because if our basic contention is correct then there is a breach of the rules of natural justice equivalent to jurisdictional error on grounds of which we say the convictions could be quashed.

TOOHEY J: I understand an argument at the end of a hearing that sought to challenge conviction on the grounds that there was no right in the court to refuse a tape recording. I am not suggesting, of course, that that argument necessarily has merit, but I understand the way in which that argument might be raised and it might be linked in an appropriate case with an argument that there was a miscarriage of justice by reason of the failure to allow the proceedings to be tape recorded, but that is not the case here, is it? This Court is being asked to grant special leave in order to answer a question almost in the abstract as to whether there was a right in the applicants to tape record the proceedings, proceedings in which they might ultimately have been acquitted, although as it happens, from what you say, that was not the case.

MR NASH: With respect, your Honour, the situation, of course, is that the application for judicial review was, in fact, heard. We are now faced with the situation where the Appeal Division of the Supreme Court as it then was has given a decision not raising the issue that the proceedings were premature and there is a decision on the record of the Appeal Division of the Supreme Court of Victoria which directly affects, we say, all of the applicants but particularly Mr Willis, the charges against whom are pending still. If it were to go back to the Magistrates' Court at this stage, this Court refusing leave on the ground that it was premature, he would be faced with a decision of the Appeal Division of the Supreme Court. He would then be in the situation where he would have to come all the way back to this Court if the same question were to be resolved. He is - - -

TOOHEY J: Yes. I do not know that I was suggesting that it was premature so much as that it was really an abstract question that we were being asked to grant special leave to resolve.

MR NASH: We say no, your Honour. We say it is not an abstract question. We do not put it that the judgment should be set aside on the ground that there has been a miscarriage of justice. If the Court pleases, we put it in a slightly different way. We say that there are fundamental principles of natural justice. If we come to this Court prematurely or to deal with an abstract question, as your Honour puts it, on the basis that counsel had been refused audience, it would not be a question of saying there has been a miscarriage of justice because counsel was refused audience. We would say there was effectively jurisdictional error in respect of which the Court can intervene by way of prohibition and we say the situation is analogous to that and it turns really on a simple proposition: is counsel entitled to take the best record that he can of what occurs in court or does his right to do that depend upon the discretion of the court?

There are circumstances, and we concede, where the tape recording could be so obtrusive, could so interfere with the administration of justice, if a boom microphone were being swung in front of magistrate, witness and the like or if the tape recorder was giving off terrible signals, where there would be a discretion to refuse on the ground that the actual manner of taking the record interfered with the administration of justice. None of these cases are such a case. Here we have a situation where - - -

DAWSON J: Was the tape recording to be taken solely for counsel's use or was it to be available for use as a record of the proceedings?

MR NASH: As I understand it, your Honour, and in each case it was to be taken for counsel's use both in relation to the hearing and in relation to any possible appeal.

DAWSON J: So that it was to be taken as a record of the proceedings.

MR NASH: If I may qualify that, your Honour, not as an official record, not as a record that is intended to be binding on anyone any more than counsel's notes are binding on anyone. It was a method of recording for the purpose of taking notes.

BRENNAN CJ: Yes, not binding on anyone but perhaps if thought to be inaccurate by one party raising a new issue for the appellate court to determine whether or not the tape recording was accurate.

MR NASH: With respect, your Honour, at the present time that is precisely what occurs within this context in the Victorian situation with conflicting affidavits.

BRENNAN CJ: Is there not a rule of practice about that?

MR NASH: There is a rule of practice, your Honour, and it is a rule of practice that a tape recording might tend to qualify or overcome. It is a rule of practice, your Honour, which favours the party successful below, whether rightly or wrongly. There has to be a rule of practice and we do not quarrel with that. But what has happened at every stage, with possible qualification in relation to Mr Justice Coldrey, the courts have said and, with respect, your Honour, it is almost - I watched a film last night - like the judge's voice is being taken and the magistrate's voice is being taken, this is open to abuse.

Now, in Davey v City of Atlanta, Chief Justice Bell gave, we would say, a very sensible ruling that the recording could only be used for the purposes of the litigation and it is clear tape recorders can be interfered with. Transcript or tape recorders can be taken outside the court and shown to another witness, but our prime contention, your Honour, is the simple one: should a barrister on his feet in a Magistrates' Court uninstructed be able to have a record of what witnesses say, what rulings are given, both for the purposes of cross-examination and final submissions and - - -

BRENNAN CJ: The first thing to say about that proposition is that there is no right of any kind vested in the barrister. It may be in the client.

MR NASH: With respect, your Honour, yes, but I was talking about - you can have a litigant in person, you can have a solicitor by himself, you can have a barrister uninstructed. In each case - and we are not contending, your Honour, that there is anything magic in the situation of counsel. We are saying quite the opposite, that it is the litigant who has the right. I phrased myself perhaps badly, but we contend and we contend quite simply that a litigant should have the fairest trial possible.

BRENNAN CJ: Why is this not a matter of practice which, having been adopted by the Victorian courts, is under the supervision of the Court of Appeal?

MR NASH: We say, your Honour, it is a matter that goes beyond the boundaries of Victoria. We say it is a question that is Australia-wide. In other States there are official records kept which certainly affect the question of the capacity to put the right material before the Appeal Court, but those records are not running transcripts. They do not enable me on my feet in the Magistrates' Court to know precisely what a witness said, which may often be crucial in relation to final submissions, often crucial in relation to cross-examination. Certainly, so far as the strict question that your Honour the Chief Justice asked me, the answer is that may well be the case, but the issue, we say, is broader than that. It is really a question of whether Australia follows the reasoning of Lord Donaldson, the Master of the Rolls, in R v Leicester City Justices where his Lordship effectively said, talking about a "McKenzie friend", that if the litigant believes he will benefit from the use of the "McKenzie friend" it is not for the court to second guess him, it is for the court to allow it unless there is some reason to the contrary, and I am paraphrasing what his Lordship said, but that in essence - and there are a number of authorities referred to in the outline but I cannot really take it any further, your Honour, in relation to that particular point.

There are a number of statements in Dietrich from your Honour the Chief Justice from Justice Dawson that talk about the fairest practicable trial in a different context, but we say that different context does not alter the principle and the question is an Australia-wide one. It is particularly relevant because, if one looks at the burgeoning number of tribunals that exist throughout this country today, we would say the same situation - we would argue that the same common law right should extend. It is merely a question - - -

DAWSON J: Where do you post limits on that right? For instance, if there was a silent way of taking films, should counsel be able to take a film of the witness in order to able display his demeanour to an Appeal Court?

MR NASH: With respect, your Honour, we do not seek to distinguish as such video recording in this argument here, video recording from tape recording. It is a question of purpose - I know your Honour asked me about photographs, but it is a question of purpose - I know your Honour asked me about photographs, but it is a question of purpose, practicality, not mere inconvenience. I was going to say inconvenience, but inconvenience is not the right word. Does it obstruct the hearing of the court? Does it obstruct the court's proceedings? For example, there may be reasons why a witness should not be identified. There should be a prohibition on recording his evidence or video taping. Video taping for public purposes is a different matter. Video taping that obtrudes and interferes with the business of the court is also, but a tape recorder sitting on the Bar table is, we say, an efficient, practical - - -

DAWSON J: But it is beyond the control of the court, or will be. I mean, it is one thing to have a recording taken for the court by the court which is then transcribed. It is another thing for a recording to be taken informally in that manner and when the court loses control of it completely.

MR NASH: With respect, your Honour, leaving aside the magic that seems to attach to the fact that it is the judge's voice captured on the tape, there is essentially no difference between that and having counsel's secretary in court making shorthand notes. There are a number of matters that were raised below: that things might get onto the tape that were not intended to be on the tape; that the tape might be incomplete. We say these matters do not go to the essence of the question. They go to the manner of - - -

DAWSON J: The tape may be inaudible in parts and difficulty to decipher and one then has another issue introduced into the litigation.

MR NASH: With respect, your Honour, I refer your Honour to what your Honour said in Butera where your Honour commented on the fact that tape recordings were a new technological device and quoted Wigmore to an effect - but I do not have the quotation here, your Honour, but the substance of it was that it added a new dimension and that was in a case where there was considerable concern about the quality and translation of the tapes.

TOOHEY J: But those considerations aside, what this Court is being asked to do by these applications is in the case of Nguyen, where there has been a plea of guilty and submissions made in mitigation of sentence, and in the case of Stefanovska and Stefanovski, where I understand you to say that now those matters have proceeded to completion and convictions have been imposed, this Court is being asked to grant special leave with a view to, in the first case, quashing the sentence, in the third and fourth cases, quashing the convictions by reason only of the fact that no tape recording of the proceedings was permitted.

MR NASH: Yes, your Honour.

TOOHEY J: Is that a fair statement?

MR NASH: It is, your Honour, and it goes to the question of what view this Court takes of the desirability of analysing in detail the question of whether in this country there should be a right which in Davey v City of Atlanta where Chief Justice Bell found existed in the United States and the Court of Appeal, and Mr Justice Orminston in particular, rejected the US authorities out of hand as relating to due process and having little to do with the common law. This Court once again in Dietrich, particularly Justice Deane and Justice Gaudron, took much more note of the American authorities. We say that this is a matter that at this stage in the development of the common law in this country this Court should consider and we say that the decision below is sufficiently in doubt to justify that. If the Court pleases.

BRENNAN CJ: We need not trouble you, Mr Solicitor.

The recording, whether by audio taping or video taping, by a party of the court's proceedings is pre-eminently a matter within the control of the court as a matter of practice. That question has been ruled upon in these cases by the Appeal Division of the Supreme Court and it is the Court of Appeal which should be ordinarily the ultimate court to determine questions of practice in the courts of Victoria. These are not cases which, in the circumstances, raise questions of public importance which warrant a grant of special leave to this Court. Accordingly, special leave is refused.

MR GRAHAM: May it please the Court, I seek an order for costs on behalf of the respondents for whom we act.

BRENNAN CJ: What do you say to that, Mr Nash?

MR NASH: If the Court pleases, all I can say is that essentially this is a criminal matter.

BRENNAN CJ: Yes. No, your application is refused, Mr Solicitor.

MR GRAHAM: May it please the Court.

AT 11.20 AM THE MATTER WAS CONCLUDED