Gee and Thaller v the Queen A40/1999 [2000] HCATrans 126 (24 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A40 of 1999

B e t w e e n -

ROBERT GORDON POLLYBANK GEE and HANS ADALBERT THALLER

Applicants

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 24 MARCH 2000, AT 10.42 AM

Copyright in the High Court of Australia

MR T.A. GRAY, QC: May it please the Court, I appear with my learned friend, MR A.L. TOKLEY, for the applicants. (instructed by Jon Lister) and (instructed by Barratt Linquist)

MR C.J. KOURAKIS, QC: If the Court pleases, I appear with my learned friend, MR R. PERROTTA, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ: Yes, Mr Gray.

MR GRAY: If the Court pleases, this application raises issues as to the jurisdiction of the South Australian court and of the right to entitlements of the Commonwealth DPP in regard to what might be broadly described as a case stated procedure, an appeal by way of case stated. In the court below, when an order was made directing Judge Anderson of the District Court to refer a question, the basis of the application was explicitly section 350 of the State Act, the Criminal Law Consolidation Act.

GLEESON CJ: Could I just get clear - the order that you seek to make the subject of an appeal to this Court is an order to what effect?

MR GRAY: It is an order directing Judge Anderson of the District Court to refer a stated case to the Full Court.

KIRBY J: But you could take the points you are now seeking to take before us, before the Full Court on that stated case and we would then have the benefit of the opinion of the Full Court.

MR GRAY: Yes - - -

KIRBY J: Why would that not be the normal, regular, ordinary way for the matter to proceed? This leapfrogging has its merits but it really has to have its limits.

MR GRAY: That would be so except the point goes to jurisdiction. It is said - - -

KIRBY J: The Full Court will say that.

MR GRAY: If the Court pleases, the point taken is that the current Full Court order is beyond jurisdiction. The matter was sought to be reopened before that Court before the order was sealed. It was put to that court it did not have jurisdiction to make the order. The court heard some argument on it and said it would not consider the matter. In our respectful submission, the court had an obligation to consider its jurisdiction.

GLEESON CJ: So the issue you want to litigate in the High Court is whether the Full Court has power to order a judge to reserve a question for the opinion of the Full Court.

MR GRAY: Yes.

KIRBY J: They did not say they would not consider it, they would not consider it as a preliminary question. They would be bound to consider it on the return of the stated case.

MR GRAY: With respect, we would say they were bound to consider it when it was raised.

KIRBY J: Well, it is a course they could have adopted. There is no doubt about that but given the pressure of business, it may well be a sensible course for them to say, "Well, look, this may take a little time", and it must be said these are quite complex questions, as this Court knows, and we will deal with it on the return of the stated case.

MR GRAY: If the Court pleases, there has been authority in this Court to indicate that a court always has an obligation to deal with the question of its jurisdiction.

KIRBY J: It is a question of when it does so; its convenience. Why is it not more convenient when you have the Full Court marshalled? They can plough their way through this unpleasant task of reading all this legislation and then they can reach their conclusion. They may well uphold your argument and then we are not troubled.

MR GRAY: If the Court pleases, we would say that we are entitled to have a court making an order that will affect my client, to do so with jurisdiction. We have raised the point with that court in detail and the court has declined to address the argument.

GLEESON CJ: At that stage.

MR GRAY: At that stage. If the Court pleases, might we say that the whole basis of jurisdiction below, explicitly on the application and the reasons for judgment, was section 350 of the local statute. That plainly cannot give jurisdiction.

GLEESON CJ: We ought to encourage courts to order their business in a manner that they regard as efficient and convenient, not discourage them from doing that.

MR GRAY: With respect, when a point of jurisdiction is raised, it should be addressed because the subsequent orders - - -

KIRBY J: What if they had said this, Mr Gray, "We will return to proceedings on the day of the return. We will return, first of all, your motion to strike out the proceedings before the learned District Court judge on the basis that he had no jurisdiction and in the event that that is determined against your argument, we will then list the whole proceedings, the substantive proceedings"? If they had done that, you would not be here. But, instead, they simply said, "We will return all of it on the one day and we will deal with it then". It seems a sensible course to me.

MR GRAY: One of the difficulties my clients face is that they face criminal charges, and one of the reasons why the matter should be dealt with, with respect, expeditiously, is because of the effect of delay that otherwise would occur. Now, with the greatest respect, if the earlier Full Court had dealt with our argument fully, this Court had the advantage of that. But the current process has the insidious effect of delay.

KIRBY J: Yes, but this Court said in Elliott that there is another insidious effect that we have to keep our eye on, and that is premature interventions by this Court in interlocutory criminal proceedings.

MR GRAY: With the greatest respect, the only point that would be lacking in this case are reasons from an intermediate court on the issue. From my past perspective, we did everything we could to have that occur. It is through no fault of my clients that did not occur and my clients say there is no jurisdiction. On my clients' case, there will be no jurisdiction at any stage along the trail. The point will always remain. There is every occasion for it to be faced up to and dealt with immediately. The facts are clear. The only matter this Court will lack will be intermediate court reasons. From my clients' perspective, we did everything we could to do that.

KIRBY J: You are the person who invented the point in Byrnes, are you not, Mr Gray?

MR GRAY: Some say that, if the Court pleases.

GLEESON CJ: Yes, well, the culprit could be on your right.

MR GRAY: Indeed, your Honour. If the Court pleases, might I say that the point was taken in Gee and Thaller, following my advice being sought following the judgment in Byrnes and Hopwood, and the point.....was argued in the intermediate court, Byrnes and Hopwood had not been handed down.

KIRBY J: Yes, we know that.

MR GRAY: But if the Court pleases, when one looks at what the court did below, they acted purely under the State statute. There is other intermediate court authority in Cook's Case, approved of in Byrnes, that says that that is not a source of jurisdiction. It has to come through section 68(2) if it exists and when one comes to 68(2), one encounters all sorts of other problems which raise important, we would say, questions in the Judiciary Act and of the Constitution.

KIRBY J: All of which you can press on the Full Court.

MR GRAY: Indeed, and which we attempted to.

KIRBY J: In their good time.

MR GRAY: Yes. If the Court pleases, from my clients' perspective, we say that we have done all we can to have that step taken and my clients wish to, as it were, get on with the matter and we say that this is a convenient vehicle for those reasons.

GLEESON CJ: Thank you, Mr Gray.

We do not need to hear you, Mr Kourakis. In paragraph 1.2 of the written submissions filed on behalf of the respondent in this matter, the following appears:

The matters now complained of can properly be put to the Full Court of the Supreme Court which convenes to consider the questions reserved. Accordingly, the applicants have not exhausted all avenues of review at the intermediate level. The High Court of Australia is not a general court of appeal:

We agree with that submission. The application should be refused.

Can you resist an order for costs?

MR GRAY: We do for the reasons we have put in our outline, that this is a criminal matter in a criminal cause. With respect, my clients having sought to have the court below consider the matter and the court declining, it was not thought inappropriate to bring it to this Court where we have lost on the discretionary basis, but not on the basis that there is not a substantive point.

KIRBY J: Can you help me. Would an order - this is still criminal in nature, is it not?

MR GRAY: Yes, it is.

KIRBY J: I realise there is a separate proceeding and the Court would undoubtedly have the power to make an order for costs, but can you tell me about the practice of the Court. Does it make orders in matters of this kind?

MR GRAY: The normal practice is not to make orders for costs when it arises properly out of the criminal jurisdiction.

KIRBY J: Does the respondent seek costs? The Crown normally does not ask for or pay costs.

MR GRAY: No, there would be no costs below on these points.

GLEESON CJ: What is your position, Mr Kourakis.

MR KOURAKIS: The respondent seeks the costs, your Honours. There is not a lot of precedent. On many occasions appeals are taken after an acquittal and on those occasions the legislation provides specifically that the Crown will pay costs.

KIRBY J: But that is the legislation at the State level. I do not think there is any question but that this Court, out of the Constitution, if necessary, and certainly out of the Judiciary Act, can order costs. But the general principle of our criminal law is that the Crown neither seeks nor pays costs. There are now some exceptions by statute but I did not know that we normally would order costs. Is there anything different or special about this case?

MR KOURAKIS: In my submission, yes. Firstly, questions in the nature of questions reserved or cases stated are heard in the civil jurisdiction of the courts. They are heard in the Full Court rather than the Court of Criminal Appeal. But more importantly in this case, the Director of Public Prosecutions offered, as a condition to the grant of leave - the order to have the case stated - to pay the applicant's costs before the Full Court and that has always remained the case. These issues, plainly, could have been raised before the Full Court and can still be raised there. The Director will pay the costs of the applicants to raise them there. This application, though, was unnecessary, caused the expenditure of costs unnecessarily, and we seek to recover them.

GLEESON CJ: We will make no order as to costs.

Call the next matter.

AT 10.52 AM THE MATTER WAS CONCLUDED