Schokker and ANOR v The Queen P18/1997 (Tue, 4 Nov 1997 15:12:03 +1100 (EST)) [1997] HCATrans 346 (4 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P18 of 1997

B e t w e e n -

HANK B. SCHOKKER and JACQUELINE M. SCHOKKER

Applicants

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 1997, AT 11.35 AM

Copyright in the High Court of Australia

TOOHEY J: You are appearing in person, are you?

MR H.B. SCHOKKER: That is correct, your Honour.

TOOHEY J: And on behalf of yourself and Mrs Schokker?

MR SCHOKKER: That is correct, your Honour.

TOOHEY J: Just sit down for a moment, please. Mr McKechnie?

MR J.R. McKECHNIE, QC: If your Honours please, with my learned friend, MRS V.R. CAMPBELL, I appear for the respondent. (instructed by the Director of Public Prosecutions for Western Australia)

TOOHEY J: Mr Schokker, you understand that the point taken against you here is that there is no right of appeal to this Court directly from a ruling of the District Court, that the only way in which an appeal can come to this Court from the District Court is via the Supreme Court?

MR SCHOKKER: That is correct, your Honour.

TOOHEY J: Do you accept that?

MR SCHOKKER: If I had gone to the Supreme Court, your Honour - - -

TOOHEY J: No, I am just asking, as a matter of law, is that not the position or do you wish to contest that position?

MR SCHOKKER: As a matter of law, it is, but I think it is overridden in common law under the provisions of Sanofi v Parke Davis where, if I had gone there and had been refused, it is a pointless waste of time, but that particular application can be leapfrogged and I could come directly to the High Court.

McHUGH J: It is not a question of leapfrogging, it is a question that there is just no jurisdiction in this Court to bring any case from the District Court direct to here. Even if the result of your application to the Supreme Court would have been inevitable, the fact is that is the only jurisdictional path to get to this Court.

TOOHEY J: If I can just add, the only qualification to that, which is not applicable in your case, is that if a court below were exercising federal jurisdiction then under the Constitution there is a right of appeal. But that is not the case here.

MR SCHOKKER: There will be, your Honour, if I could just address you on that point. The federal legislation comes into the defence of the case where the Australian Tax Office, in the conduct of whatever they were doing, went out and interfered with the Crown witnesses. Now, they are subject to a current subpoena to produce the documents and information of what transpired at these interviews et cetera - - -

TOOHEY J: But that does not bear on the question of jurisdiction, Mr Schokker. You were charged under the Criminal Code, were you not, of Western Australia?

MR SCHOKKER: Agreed, yes, but if the Australian Tax Office, because of their secrecy provisions, refused to provide this information, as I expect them to do under the section 16 secrecy provisions of the Income Tax Assessment Act 1899 , then the elements of the defence that will be required to be tested by the District Court judge in ordering the Tax Office, or determining that question of federal jurisdiction, should be sufficient to turn around and say, well, the federal law comes in, in needing to apply federal law, to enable the defence to obtain the evidence that is required to present his argument.

McHUGH J: I do not understand that.

MR SCHOKKER: If the Australian Taxation Office - - -

McHUGH J: What is the defence you are talking about?

MR SCHOKKER: They have interfered with the Crown witnesses. They have conducted their own little kangaroo court and made findings and influenced the Crown witnesses in this particular case in an adverse way that will have a marked effect on the trial.

TOOHEY J: No doubt that could be the subject of cross-examination of the witnesses and, if necessary, the calling of witnesses.

MR SCHOKKER: That may well be. It may be sufficient - - -

TOOHEY J: But it does not constitute an exercise of federal jurisdiction when - - -

MR SCHOKKER: It does, if the Tax Office are required to be subpoenaed and that information cannot be produced because of the federal jurisdiction.

McHUGH J: That has nothing to do with exercising federal jurisdiction.

MR SCHOKKER: If the defence requires information that is going to be denied to it because of federal jurisdiction.

McHUGH J: It is not because of federal jurisdiction, it is because of a federal statute.

MR SCHOKKER: Federal statute, yes.

McHUGH J: That is a very different thing altogether. We are talking about jurisdiction, we are talking about something that a court exercises.

MR SCHOKKER: Okay. The other aspect is, your Honours, that if in Kamarooka Gold, if there is no remedy elsewhere, there is a remedy to the High Court.

TOOHEY J: But who says there is no remedy elsewhere?

MR SCHOKKER: The only other remedy or the only other alternative place to go would be to the Supreme Court and that particular exercise would be a futile waste of time because of what similar applications that have been made there have been thrown out on the grounds of jurisdiction.

McHUGH J: It may or may not be. You may be able to persuade the Full Court not to follow its previous decisions or you can distinguish them. But even if you cannot - - -

MR SCHOKKER: On exactly the same grounds as I have set out in my submissions.

McHUGH J: But even if you cannot, the fact is that once an order is made by that court, you then have a right to make an application for leave to appeal under section 73 of the Constitution to this Court. Until that is done, there is nothing we can entertain.

KIRBY J: It may seem a waste of time to you but, you see, the Constitution binds us and we can only receive appeals in certain circumstances and one of those is from a Supreme Court. So that is one of those steps you just have to take, if that is what you are going to do, unless you have some other way by which, under the Constitution, you can come directly to this Court.

McHUGH J: We have no jurisdiction, absent the exercise of federal jurisdiction, to make any order directly to a State court.

MR SCHOKKER: Not even after looking at Australian Red Cross Society v Beaver Trading, which is one of the references I handed up, your Honours, where there was a lack of jurisdiction to go anywhere else and therefore there was a right for the High Court to consider - - -

TOOHEY J: What is the case?

MR SCHOKKER: Australian Red Cross Society v Beaver Trading Co Pty Ltd [1947] HCA 60; 75 CLR 320.

TOOHEY J: Is it in the bundle of authorities that you have handed up?

MR SCHOKKER: Yes, your Honour.

TOOHEY J: Where? Yes, I have it. That seems to be dead against you, does it not?

MR SCHOKKER: The reference I make from that, your Honours, is - it says that:

An appeal by way of case stated from the decision of a magistrate to the Supreme Court of New South Wales is not an admissible procedure under Part IV of the Landlord and Tenant Act (NSW), therefore such an appeal does not lie as of right to the High Court under Section IV of the High Court Appeal Rules and s. 39(2)(b) of the Judiciary Act 1903 -1946 but the High Court may, under par. (c) of s. 39(2), grant special leave to appeal from such a decision.

KIRBY J: But that was a case where the magistrate was exercising federal jurisdiction under the National Security Regulations whereas, in your case, the District Court is exercising State jurisdiction pursuant to the Criminal Code of Western Australia.

McHUGH J: And that is what the court says in the joint judgment at page 329:

The regulations create a "matter", that is a controversy, question or claim of right, which would fall within s. 76 of the Constitution. Section 39(2) would apply to such a matter.

TOOHEY J: Mr Schokker, this Court's appellate jurisdiction is marked out by section 73 of the Constitution. That prescribes an appellate jurisdiction in respect of:

judgments, decrees, orders, and sentences -

(i) Of any Justice of Justices exercising the original jurisdiction of the High Court:

Well, that is clearly not relevant.

(ii) Of any other federal court -

we are not talking about a federal court -

or court exercising federal jurisdiction;

we are not talking about that -

or of the Supreme Court of any State -

we are not talking about that -

or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council;

in other words, a court might have existed at the time the Constitution came into operation from which an appeal lay to the Queen in Council, but that is not so of the District Court, which is a creature of State statute and has been around for a number of years, but not long.

And finally, "the Inter-State Commission" which clearly does not apply. So I am afraid, unless you can mount an application for special leave to appeal from the Supreme Court, this Court is not competent to hear your present application.

KIRBY J: There is only one other way that is raised by Justice Gaudron's opinion and I think Justice Deane's in Dietrich, as to whether the Dietrich principle is founded in the Constitution, but you have not pursued that and this is not the proper course to pursue it.

MR SCHOKKER: I have read the transcript in Frugtniet from your brother Judge Kirby and I take his points on, so I have not argued those before you today, that there is a constitutional basis for it, not yet.

TOOHEY J: That seems to be about it, Mr Schokker. There is no point in taking us into questions that go to the merits of your application because the Court has no jurisdiction. That is the end of the matter, I am afraid.

MR SCHOKKER: I understand.

McHUGH J: You have to go to the Supreme Court.

MR SCHOKKER: Thank you for your time.

TOOHEY J: We need not trouble you, Mr McKechnie.

The appellate jurisdiction of this Court does not include an appeal directly from a judgment of the District Court of Western Australia unless that court is exercising federal jurisdiction. That is not the case here.

It follows that the application for special leave to appeal must be refused.

AT 11.45 AM THE MATTER WAS CONCLUDED