Rich v The Queen M111/1997 [1999] HCATrans 642 (10 December 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M111 of 1997

B e t w e e n -

HUGO ALISTAIR RICH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 10.33 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC: If the Court pleases, I appear for the applicant. (instructed by T.F. Grundy & Co.)

MR P.A. COGHLAN, QC: If it please the Court, I appear with my learned friend, MR R.L. GIBSON, for the respondent. (instructed by P.C. Wood, Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Nash.

MR NASH: If the Court pleases, the issues here are relatively simple and straightforward. The real question is, does the decision in Dietrich extend to appeals and the second question is the weight to be given to Australia's international treaty obligations in the construction of domestic statutes.

The Court of Appeal took the view that Dietrich did not extend to appeals for three reasons. We hope that it is not unfair to say the reasons were: (a) that an appeal court did not need counsel to ensure a fair trial; (b) the principle in Dietrich should not apply, or did not need to apply to the person who had been found guilty by a jury, the presumption of innocence having evaporated; and (c) that there was no sanction available to ensure that legal representation did become available.

GLEESON CJ: I thought their reasoning was that it was the first and the third and then, in relation to the second, Justice Brooking said that was an additional reason, but even if it did not exist, he would have reached the same conclusion on the basis of the other two considerations.

MR NASH: I would, with respect your Honour, not dissent from what your Honour puts. I thought you put the last one a little bit higher than your Honour puts it, but certainly, we say the only one of those that has validity is the sanction question, and the court has an inherent capacity to adjourn proceedings. Bail can be granted following conviction.

GLEESON CJ: Are you submitting that the court should have granted a permanent stay of your client's appeal?

MR NASH: Not on the material that was before the court - I cannot, your Honour - but they should have - - -

GLEESON CJ: There would not be very many appellants in custody who would want a permanent stay of their appeal.

MR NASH: No, your Honour, I concede that. What we say is that an appeal should have been granted and, by analogy with the situation that arises where an interpreter is unavailable, which has happened in, I think, one old case in New South Wales and one case that occurred in New Guinea in the 1960s, if a fair appeal cannot be conducted, then we would say there is a ground for granting bail.

GLEESON CJ: Do you pursue an argument that the court had power to make an order under the statutory provision?

MR NASH: Our primary argument, your Honour, is that "trial" - there are two legs - in section 360A(2) should be construed as including the whole of the judicial process, including that application.

GLEESON CJ: Including an application for special leave to appeal to the High Court?

MR NASH: No, your Honour, we would stop there. We stop there, in one sense, by analogy with the American authorities, and, in another sense, by reason of the wording of section 567 of the Crimes Act. We say there is a right of appeal under section 567. In certain circumstances, that right becomes only a right to seek leave. The practice of the Court of Appeal in Victoria is to deal with the application for leave and the appeal at the same time, and to treat them as a single hearing so that in fact, de facto, there is a right to have an appeal heard. That is how the practice operates in Victoria and we say that where there is such a right of appeal, having regard to the convention, having regard to what, in one sense, Dietrich was all about, and conceding that there was a sanction problem that troubled the minority, even in relation to trials, we say that "trial" should be construed as including the process through to the determination of that first appeal. Now this is a matter which clearly your Honours are going to have a first impression and I can - - -

McHUGH J: Well one problem, it seems to me, is that "appeal" is not a common law concept; the common law did not know the notion of "appeal". It is the creature of statute. So all its incidents must come from a statute. How does the common law intervene in an appellate process to require legal representation?

MR NASH: We would say, your Honour, that the common law develops. The common law looks at fair treatment. Just as in the United States due process expanded, the requirements of due process originally did not include a right to legal representation on appeal, that the common law is a living thing and I accept your Honour's point that the appeal is a statutory entitlement, but there is no statutory requirement, your Honour, that the rules of natural justice be applied on appeal; the courts have no problem considering that there is a breach of the rules of natural justice.

McHUGH J: But that is because in the exercise of a statutory power, ever since Kioa, courts have taken the view that, prima facie, any statutory power has to be exercised in accordance with the rules of natural justice, but you seem to want to build on to the right of appeal a power in the court to direct legal representation.

MR NASH: Your Honour, if one goes to the statutory basis, then we say it, but if I come back to the common law, then we do not contend that there was power to order legal representation, that there was an inherent jurisdiction to adjourn and to grant bail, and that these matters, whether in the exercise of the discretion of the court, the court should in fact have done both of those things, is somewhat a different question from the question the Court of Appeal faced or the Court of Appeal answered. The Court of Appeal said no to the 360A point and, no, Dietrich does not apply to an appeal. We say that this is a very important question in the administration of justice in this country.

GLEESON CJ: Is there a statute in Victoria that sets out the principles according to which bail is to be granted?

MR NASH: No, there is a Bail Act, your Honour, and it does not deal with bail following conviction on appeal, but the case law makes it clear that bail following conviction and pending appeal should be granted only in exceptional circumstances.

GLEESON CJ: Are applications for legal aid for appeals in Victoria merit tested?

MR NASH: Until, I think, it was Wednesday of last week, there was a practice in relation to trials that the County Court looked for a triable issue. That test has now been abandoned. In relation to the criteria applied by legal aid - - -

GLEESON CJ: For appeals?

MR NASH: For appeals, your Honour, I am not able to assist the Court. It may be that some of my learned friends will be able to, but the propositions are fairly simple. They are either accepted by the Court as justifying special leave or they are not. I cannot really take it any further, with respect.

GLEESON CJ: Thank you, Mr Nash. We do not need to hear you, Mr Coghlan.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave. The application is refused.

AT 10.42 AM THE MATTER WAS CONCLUDED