Ebatarinja v Deland and ORS D173/1997 [1998] HCATrans 188 (21 May 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D173 of 1997

B e t w e e n -

ROLAND EBATARINJA

Applicant

and

CATHY DELAND

First Respondent

LEONARD DAVID PRYCE

Second Respondent

REX WILD QC

Third Respondent

Application for special leave to appeal

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON THURSDAY, 21 MAY 1998, AT 2.17 PM

Copyright in the High Court of Australia

MR D.J. ROSS, QC: If the Court please, I appear for the applicant, and I appear with my learned friend, MR S.J. O'CONNELL. (instructed by David Bamber, Central Australian Aboriginal Legal Aid Service Inc)

MR R.S.L. WILD, QC: If the Court please, I appear with my learned friend, MS A.M. FRASER, for the respondents. (instructed by the Office of the Director of Public Prosecutions (Northern Territory))

McHUGH J: Yes, thank you. The Registrar certifies that she holds a letter from the Solicitor for the Northern Territory, solicitor for the first respondent in this application, advising that the respondent does not intend to appear at the hearing of the application, and will submit to such determination as the Court might make in the application. The Registrar also holds a letter from Mr Rex Wild, QC, the third respondent in this application, indicating that the third respondent will take no formal part in the proceedings and will abide by the decision of the Court in the application. Yes, Mr Ross.

MR ROSS: If the Court pleases, our submissions are very short. Perhaps we should have even put at the end of our application that we did not need to make them. We only wanted to say this, that while it is said that there are eyewitnesses to the crime, they might not have seen what they claimed.

The second thing is that the applicant, for all any of us knows, might have an ironclad alibi, and were he to put it to the magistrate at committal there would be a discharge of him; that is, he would not be committed at all, and no further proceedings would be taken. But, we cannot know that and neither can the magistrate know that.

McHUGH J: Mr Ross, one matter that concerns me is that the application book does not contain any of the originating process or the evidence in support of it. I take it the matter commenced by way of summons, did it, or was it a motion?

MR ROSS: It was a matter that was, I think, brought by motion from the committing magistrate to his Honour Mr Justice Mildren and that was supported by an affidavit and the affidavit was of the father of the applicant, a man called Conley Ebatarinja. I understand from what my learned friends told me, your Honour, that during the course of the morning the Court has sought some of those original documents.

McHUGH J: Yes, that is so, and I have just been handed a copy of them. What is the effect of the evidence before the Northern Territory courts as to the availability of any means which would enable the applicant to understand what is happening?

MR ROSS: It is common ground that there is none.

McHUGH J: Neither in the Territory nor anywhere else, is that so?

MR ROSS: That is so.

McHUGH J: Yes.

MR ROSS: The affidavit material that was before his Honour Justice Mildren shows that he got meningitis at the age of three and no one has been able to communicate with him since. There is no suggestion that he is mentally retarded or defective in any way and the judgment of Justice Mildren recites that fact and I myself have sought to communicate with the applicant without any success at all.

McHUGH J: There seems to be some evidence that he went to school until he was 13 years of age. What is the significance of that?

MR ROSS: Yes. Well, it has not enabled him to hear, or talk, or write.

CALLINAN J: But, Mr Ross, he could speak in his native tongue, according to paragraph 13 of the affidavit, before he became mute.

MR ROSS: Yes.

CALLINAN J: If you look at paragraph 13:

When Roland was a little boy he could talk Arrernte.

So, presumably, there is some means of communicating, apart from with respect to basics.

MR ROSS: Not quite, your Honour, because that was before he was three years old.

CALLINAN J: I understand that.

MR ROSS: When he was three years old he got meningitis and got taken to South Australia to be cured, and the meningitis was contained, but he was brought back deaf and no action has been taken since.

CALLINAN J: I understand that, but you said that there is no evidence that he is mentally defective, is that right?

MR ROSS: Correct.

CALLINAN J: Did I mishear that?

MR ROSS: No, you did not mishear that, your Honour. There is no suggestion that his mental capacities are in any way impaired.

McHUGH J: It comes to this, does it not; that he has been charged with murder, but he does not know he has been charged with murder, he cannot hear the evidence, or understand what evidence is given against him, and he cannot instruct anybody to defend him? Is that the effect of it?

MR ROSS: That is the effect of it, your Honour.

McHUGH J: So, the real question is, in those circumstances, would it be a denial of natural justice for him to be committed for trial, or even be asked to present a case, or answer a charge of murder?

MR ROSS: Yes. Your Honour, we go further than that and we say it is not proper and it is not consonant with principle for any criminal proceedings to be taken against him at all.

McHUGH J: Yes, I do not think we need trouble you further at the moment, Mr Ross. We might hear what Mr Wild has to say.

MR ROSS: If your Honours please.

McHUGH J: Yes, Mr Wild.

MR WILD: Thank you, your Honours. If the Court pleases, the very last comment that came between the Court and my learned friend begs another question: whether this man could ever face a court for the rest of his life, regardless of his behaviour. Does it mean, if he cannot now be committed for trial or face a committal, that if his behaviour continues to be of a criminal kind, he can never be brought to face the court at any stage. That is a more difficult question.

McHUGH J: I know it raises that question, but it certainly seems to raise an important question of principle as to if a person does not know what he is charged with and cannot be told what he is charged with, cannot hear or understand the evidence and cannot instruct anybody, whether that person can have a fair trial.

MR WILD: Your Honour, the question really is not, with respect, whether he can have a fair trial, but whether he can have a fair committal.

McHUGH J: Well, that is so. A committal proceeding is not a judicial proceeding, but nevertheless there is authority for the proposition that a breach of the rules of natural justice is a matter which goes to jurisdiction and in which prohibition would go and arguably, in this case, he has been denied natural justice because he cannot properly defend himself and in those circumstances it is arguable that the court has got no jurisdiction. Now, maybe it has got jurisdiction to commit him for trial, but it seems to raise a very important question of principle.

MR WILD: Yes, your Honour, I cannot say more than I have said. The view that the Crown has taken, as you have read in the papers, is that the committal is an administrative proceeding; that, in fact, if I could just perhaps conclude - the point I wanted to make was that if, in fact, he is given a committal it may be, as my learned friend implies, at least, that he can be discharged at that committal. So he does get some advantage from that should that take place. There is a procedure, as you will have read in the Northern Territory and no doubt is shared in other places, whereby the Supreme Court can try his want of understanding and decide that question.

McHUGH J: Yes.

MR WILD: That is what the Crown has been seeking to establish in these proceedings.

McHUGH J: Yes.

MR WILD: Apart from that I say nothing else about the matters, your Honour.

CALLINAN J: Mr Wild, could I just ask you this, whether there have been any efforts by the Crown to try to find an interpreter or some means of communication.

MR WILD: Yes, there have been.

CALLINAN J: I think it is probably - I am sorry, you go ahead.

MR WILD: Your Honour, there have been attempts made.

CALLINAN J: There have.

MR WILD: We do not quarrel with what my learned friend says that thus far it has not occurred and that is something that we hope will happen in the future.

McHUGH J: Your argument has to go so far as to suggest, does it not, that an insane person can be committed for trial in the Northern Territory?

MR WILD: Yes, and anywhere else probably, your Honour, with respect.

McHUGH J: Yes, that is why it raises a very important question of principle, I think. You may be right eventually, but there is an important question.

MR WILD: Yes. Your Honour so categorises it. I have very little else I can say.

McHUGH J: Yes, thank you, Mr Wild.

MR WILD: If your Honour pleases.

McHUGH J: Yes. There will be a grant of special leave in this case.

MR ROSS: If the Court pleases.

McHUGH J: The Court will now adjourn to reconstitute.

AT 2.29 PM THE MATTER WAS CONCLUDED