Fox v The Queen B25/1998 [2000] HCATrans 75 (10 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B25 of 1998

B e t w e e n -

WILLIAM KELVIN FOX

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2000, AT 1.22 PM

Copyright in the High Court of Australia

MR W.K. FOX appeared in person.

MR D.L. MEREDITH: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIRBY J: Are you William Kelvin Fox?

MR FOX: I am, your Honour.

KIRBY J: You are the applicant in this application?

MR FOX: I am, your Honour.

KIRBY J: Yes. The Court received this morning an affidavit which you have sworn which is dated 9 March in which apparently you are seeking an adjournment of this application in order to press what you claim to be an entitlement to legal representation, is that correct?

MR FOX: I am, your Honour.

KIRBY J: What do you want the Court do, simply adjourn the matter to the next Brisbane hearings? Is that what you want us to do?

MR FOX: Until such time as I can seek further information and then I can notify the Court, your Honour.

KIRBY J: Yes. Perhaps we can ask what the Crown has to say about this application. Have you seen this, Mr Meredith? Have you seen the affidavit?

MR MEREDITH: No, your Honour, I have not.

KIRBY J: You have not seen it.

MR MEREDITH: No, your Honour.

KIRBY J: Mr Fox, do you have a copy of the affidavit that you can show to Mr Meredith?

MR MEREDITH: It has just been handed to me, thank you, your Honour.

KIRBY J: We could deal with the next application, if that would help you, Mr Meredith, and you can just have a look at that application?

MR MEREDITH: Yes, thank you, your Honour.

KIRBY J: Mr Fox could just remain seated at the Bar table because I think the next application is a matter in which there is going to be no oral argument. We will deal that, first. You just stay where you are, for the moment, Mr Fox. Mr Meredith will read the documents and we will come back to you.

AT 1.24 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.27 PM:

KIRBY J: If you need a bit more time, Mr Meredith, we will just wait until you have had a chance to look at all those documents.

MR MEREDITH: Thank you, your Honour.

KIRBY J: Just sit down or a moment, Mr Fox. You should have served the document on the Crown, but we will just let Mr Meredith read the document.

MR MEREDITH: Thank you, your Honour. I have read the affidavit and its attachments.

KIRBY J: Yes. What is your attitude, Mr Meredith, to the application that the application be adjourned to the next Brisbane special leaving hearings?

MR MEREDITH: We would oppose it on the basis that he has applied for legal aid, as I understand it, and had it refused. It is not on the basis that he was denied it by means of his being without funds, it is rather that there was a - - -

KIRBY J: As I understand it, he is raising a point concerning his legal entitlement to have legal representation and that is not a matter which would be surrendered by a court, if there is such a right, to an administrative body like a Legal Aid Authority. That is a matter which is between the applicant and the court.

MR MEREDITH: That is so, your Honour, but Dietrich, as I understand it, was related to trial matters rather than appeal matters.

HAYNE J: But, does that mean that we now argue out the Dietrich point in relation to the special leave application? That seems rather awkward, Mr Meredith.

MR MEREDITH: It does, without notice, yes.

KIRBY J: The applicant is in custody so that any adjournment in the hearing is, in a sense, to his disadvantage, not to the Crown's. He continues to serve his sentence and at least, on the face of the affidavit, which I take it we can regard as having been read in this application, he indicates that he wishes to advance an argument, as I understand it, that the matter be adjourned so that he can get legal counsel.

MR MEREDITH: Yes, your Honour.

KIRBY J: If we are to consider, as it were, the Dietrich point, then, obviously, this Court would not wish to do that without assistance at both ends of the Bar table.

MR MEREDITH: Yes, well, I am not in a position to argue that point myself at this stage.

KIRBY J: May it not be a sensible course, the applicant being in custody and his sentence continuing to run, to simply stand the application over to the next Brisbane special leave hearings, to have this transcript brought to the notice of the Queensland Bar Association or Law Society and then, if the issue which is presented of the so-called Dietrich point is to be argued in this case, at least then the Court would have the assistance of counsel who could present the issue to the Court in a way that would help the Court to come to a proper conclusion.

MR MEREDITH: Yes, your Honour.

HAYNE J: And this Court would be much assisted by counsel to argue that point as well, perhaps, as it would ordinarily be assisted by counsel arguing the merits, but it would be much assisted by counsel arguing the point.

MR MEREDITH: Yes, your Honour. My reluctance was that this matter has been so long coming on and it is rather annoying that it is at the very last minutes that these things are served.

HAYNE J: And, what harm do you suffer, other than a moment's irritation?

MR MEREDITH: None. It is just that it is lack of finality, that is all, your Honour.

KIRBY J: Yes.

MR MEREDITH: I am not opposing it, then, your Honour.

KIRBY J: It is a burden on both sides but the applicant wears his burden in prison and, therefore, it would seem appropriate to allow him the adjournment. Now, Mr Fox, I have a question to ask you.

MR FOX: Yes, your Honour.

KIRBY J: If in fact no legal representation is provided to you in any way, and the Court is not in a position to order legal representation, at least at this stage, then the adjournment runs, in a sense, against your interests because the case is simply not heard and you remain in custody, do you understand that?

MR FOX: I do understand that, your Honour.

KIRBY J: So, you will have to give some thought, if you are not provided with some assistance, to advancing the arguments as best you can, yourself, because otherwise it is not the Crown that suffers by the adjournments, it suffers a degree of irritation or the failure to be able to close its file, but the Court cannot come to your application until either you have a representative here or you advance the case yourself. Do you understand that?

MR FOX: I understand that, your Honour. Yes, I do.

KIRBY J: But, what we will do is to direct that the transcript be drawn to the notice of the Queensland Bar Association, the Queensland Law Society and it may be that somebody will assist you to advance any argument that you may have based on the case that you referred to in the fourth paragraph of your affidavit, Dietrich v The Queen.

MR FOX: Thank you, your Honour.

KIRBY J: But that is all that we can do for you today.

The order will be that the application of William Kelvin Fox is stood over to the next special leave hearings in or from Brisbane. The transcript of the proceedings before the Court today and of the affidavit of William Kelvin Fox will be provided by the Registrar to the Bar Association of Queensland and to the Law Society of Queensland who will be able to read what the Court has said, in particular what Justice Hayne said, with which I would align myself.

You will be taken back into custody, Mr Fox, to continue serving your sentence.

MR MEREDITH: Your Honour, my concern about the adjournment was nothing to do with our files. It was to do with the victims of the offences. I just want to make that clear. It was not our inconvenience that I was concerned about.

KIRBY J: I thought it was just a bureaucratic concern.

MR MEREDITH: No, it was not, it was to deal with the people who were the victims of the attempted murder.

KIRBY J: Yes, I understand. Mr Fox, you have heard what Mr Meredith said and that means that the Court will expect, one way or the other, with a representative if that can be arranged or not, that the application will proceed, at least as far as it can, on the next day that the matter is before the Court. You will be notified of that day by the Registrar.

MR FOX: I understand. Thank you, your Honour.

KIRBY J: The Court will now adjourn until Friday, 17 March 2000, in Sydney.

AT 1.35 PM THE MATTER WAS CONCLUDED