Swift v The Queen B23/1999 [2000] HCATrans 93 (13 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B23 of 1999

B e t w e e n -

JOHN EDWARD SWIFT

Applicant

and

THE QUEEN

Respondent

Application for extension of time

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 13 MARCH 2000, AT 11.09 AM

Copyright in the High Court of Australia

MR S.M. MACGROARTY: I appear on behalf of Mr Swift, the applicant. (instructed by Witheriff Nyst). This is an application brought pursuant to a summons to extend time with which to comply with one of the Rules of the Court.

MR M.J. BYRNE, QC: May your Honour please, I appear for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

MS MACGROARTY: Your Honour, I would seek to read the summons dated 28 January 2000 and filed the same date and other material. I have a list of that material that the applicant seeks to read and rely upon.

HIS HONOUR: Ms Macgroarty, where do I find the explanation for the delay?

MS MACGROARTY: You find the explanation, your Honour, in - it is canvassed in the two affidavits of Mr Jason Murakami. On the one hand, there is delay in the applicant bringing or filing and lodging the outline and the draft notice with the Court because of instructions being withdrawn from one counsel and then fresh counsel being reinstructed lately and those documents being drafted but, more significantly, I suppose, your Honour is concerned about the delay in not filing the application book which is the specifics of the - and how the certificate came to be issued?

HIS HONOUR: Yes.

MS MACGROARTY: That is found in the second affidavit of Mr Murakami which was filed on Friday, 10 March, your Honour. Just before I delve too deeply into my argument, I should - having formally read that material, your Honour, I would seek at the outset to amend the summons by deleting - and I hand up to the Court a copy of the proposed amendments to the summons which I have shown my friend. I wish to delete the words "or abridge" from the summons because that makes a nonsense otherwise of the orders sought and as a matter of caution, your Honour, I have added additional relief that "a declaration be made if the application is successful for the certificate to be vacated".

HIS HONOUR: What do you say about that, Mr Byrne?

MR BYRNE: I have no objections to those changes, your Honour.

HIS HONOUR: All right. Well, you have leave, Ms Macgroarty.

MS MACGROARTY: Thank you, your Honour. And, further, the second affidavit of Mr Murakami contains an error in paragraph 2, your Honour.

HIS HONOUR: I am just trying to find that. That was filed on the 10th, was it?

MS MACGROARTY: On Friday, your Honour.

HIS HONOUR: I do not know whether it has reached me.

MS MACGROARTY: I can furnish another copy to the Court.

HIS HONOUR: I am not sure that it has reached me.

MS MACGROARTY: It was filed by the town agents, Messrs Robertson O'Gorman, your Honour.

HIS HONOUR: Let me just read this very quickly.

MS MACGROARTY: There is also an affidavit of service filed on the same day by a lady Kirsten Collier.

HIS HONOUR: Just let me read this. Yes, all right.

MS MACGROARTY: Your Honour, in paragraph 2 of the further affidavit of Mr Murakami, the very last sentence reads:

I was confused about this proposition because I caused the documents to be filed within time 5 weeks earlier.

In fact, the words "within time" should be deleted, your Honour, because they were not filed within time. They were filed - - -

HIS HONOUR: Well, you do not want to rely upon that. We cannot delete something from somebody else's affidavit. But you are just drawing to my attention a mistake.

MS MACGROARTY: I am. Your Honour, the deponent is instructing me this morning if you wanted to canvass the matter with him. But, yes, I would not rely on that particular paragraph.

HIS HONOUR: That is all right. I think that we need not do anything other than that at this stage, that that is not correct.

MS MACGROARTY: Thank you. Your Honour, the proposition is this, that an application for special leave was filed within time. Unfortunately, the Rules then - Order 69A - are the Rules that deem what obligations the parties must meet in a special leave application. It was a requirement of the Rules that within 28 days of receipt of the index from the Registrar the applicant would file an application book. Now, your Honour, the difficulty in this case is that no index was received from the Registrar. I would seek to tender to the Court my written submissions and explain in summary, your Honour, that the index did not come to be settled because, through inadvertence perhaps on - certainly on the applicant's solicitor's part but it was, if I might use the phrase, a comedy of errors in some respect because Order 69A must be distinguished from Order 70 which is the procedure to be followed in respect of appeals generally. Order 70 gives very clear and concise steps as to how an index comes to be created. There is an obligation on the applicant to file certain material after the outline is filed. Once that material is filed the Registrar then makes an appointment with the parties so they may attend, consult and settle the index together. Order 70 rule 10 and rule 11 then sets out how the index, once it is settled, comes to fruition, is engrossed and then the application book is created.

Order 69A, I would respectfully submit, is deficient in that it does not set out so clearly how the index comes into being. Now, I am not suggesting that this is all the fault of the Rules or, indeed, the Registrar, but I am making the point, your Honour, because while the solicitor did not take more proactive steps in discovering what needed to be done for an index to be created, there was no specific obligation on his part or required by the Rules, and in his state of - if one calls it confusion - if you read the affidavit of Mr Murakami, the second affidavit, you will see that he did not take the steps but did not believe or did not understand that perhaps he should have been - or, it was more ideal if he had spoken with the Registrar sooner. Once it is brought to his attention, the applicant, through his solicitors, takes every opportunity or makes the most of the opportunity to rectify the matter which brings us here today.

The concern for the applicant, your Honour, is that if the certificate is allowed to stand then he will lose his final avenue of appeal in a very serious and - serious matter for him. It would have dire consequences.

HIS HONOUR: He does not have an avenue of appeal unless he gets leave.

MS MACGROARTY: That is right, your Honour, but if his application for special leave is not allowed to stay alive, then he would need to seek the Court's further indulgence to file a fresh application for special leave which would, in effect, be 12 months out of time and, in my submission, that would be a very difficult hurdle for the applicant to overcome. This is a situation, your Honour, where the applicant has filed his application within time, although he has not complied strictly with the Rules in filing the outline and the draft notice within the time for those particular documents. He did file them within 6 months. The explanation for the delay is that there was a change of counsel. There was a difficulty with the funding of the appeal originally, I believe, your Honour.

The applicant will be, in my submission, prejudiced to a far greater extent than the respondent could be and an injustice would be visited upon him because of an inadvertence or a mistake of his solicitor which, in the circumstances, I would suggest that this Court today would find that that would not be doing justice for the parties.

HIS HONOUR: Ms Macgroarty, Order 69A rule 13(1) speaks in the past tense. It says:

Where an applicant fails to comply with subrules 4(1), 4(2), 6(1) or 10(9) within six months -

and it is 10(9) that your client has not complied with, is that right?

MS MACGROARTY: That is right, your Honour.

HIS HONOUR: It says, where an applicant has failed to comply with that rule:

within six months after filing the application, the application shall be deemed to be abandoned, unless the Court or a Justice or Registrar has otherwise ordered or directed.

So, that suggests that you cannot get in under that rule unless there has been a direction or order before the deemed abandonment. I mean, that is not the end of the matter, I do not think, because there is a general power to enlarge time, is there not, under Order 60 rule 6?

MS MACGROARTY: That is right.

HIS HONOUR: That is the one that you need to rely upon, is that right?

MS MACGROARTY: It is, your Honour, and Order 60 rule 6(2) provides that even if - - -

HIS HONOUR: But that is what you rely upon, Order 60 rule 6, and not Order 69A rule 13?

MS MACGROARTY: Yes, that is right, your Honour. This summons is brought pursuant to Order 60, and subrule (2) provides that:

An enlargement of time may be ordered -

notwithstanding the expiration of a time has already lapsed. So, in my submission, although the six months has elapsed, the Court can make, in effect, a retrospective direction that the applicant will now comply with filing the application book even though it is outside the six month period, notwithstanding the purported deemed abandonment.

Your Honour, the discretion you have is broad and I have set out for the Court some detail about the Court's inherent jurisdiction which your Honour is obviously aware of that but one matter that the Court would consider is the prospects of success of an appeal in the event special leave was granted.

HIS HONOUR: What do you say is the error in the reasons of the Court of Appeal?

MS MACGROARTY: The error, your Honour - well, I suppose, to point to one of the strongest errors in the applicant's submission is that the Court of Appeal, in applying or purporting to apply Ridgeway's Case, failed to properly take into account the difference between Ridgeway's Case and the circumstances of Swift's Case in that the Court of Appeal did not acknowledge that in Swift's Case the authority had gone beyond the actions of the authorities in Ridgeway's Case because they - I am just trying to make this clear, your Honour. I should also formally read the outline and the - - -

HIS HONOUR: That is right. I have looked at your outline.

MS MACGROARTY: The fact is at paragraph - if I take the Court in ground 2(e).

HIS HONOUR: This is the outline on the application for special leave?

MS MACGROARTY: It is, your Honour. In Swift's Case the covert agents went beyond the activities of the authority in Ridgeway's Case and created an offence where one had not existed before. In Ridgeway's Case the appellant there was in the process of criminal activity with drug trafficking and the authorities there set up a sting operation to sell him heroin and to entrap him in a specific trafficking offence when he was, according to their information, already engaged in the same kind of conduct. Whereas, in Swift's Case there was no evidence and no suggestion that Swift was - - -

HIS HONOUR: Already involved in - - -

MS MACGROARTY: Already involved, and that is a very important distinction that needs to be made. The Court of Appeal erred in not recognising that. So, when they applied Ridgeway's Case they did not take into account as a legal point that Swift's Case was more serious and an extension of the enforcement authority's activity.

HIS HONOUR: But did not the Court of Appeal hold in this case that the Commission had a suspicion on reasonable grounds that some member or members of the Gold Coast Police was or were providing protection to a drug dealer? That is at page 9 of the reasons.

MS MACGROARTY: Yes, that is so, your Honour, but that was not in relation to Swift.

HIS HONOUR: How is that indistinguishable from Swift's Case?

MS MACGROARTY: It is distinguishable because in Swift's Case the authorities had no specific suspicion or evidence of this individual's involvement. He was just one of a wide range in a class, whereas in Ridgeway's Case they were targeting the particular individual because the suspicions related to him. Whereas, Swift is caught up in the net because he is in a general class of police officers at Surfers Paradise CIB.

HIS HONOUR: But the jury must have thought that the Commission got it right. With covert activities and where there are a number of possible culprits, how otherwise can the authorities discover who the criminal is? In the nature of things, everything is concealed. They know, perhaps, three or four people are possible culprits but it is extremely difficult to identify who is the culprit.

MS MACGROARTY: That is so, your Honour, but the concern for the Court of Appeal and, indeed, this Court is on the grounds of public policy, making sure that there is a balance between the interests of the public, on the one hand, and the community and the concern for the individual, in line with the case of Bunning v Cross and Reg v Ireland and in this case, because of the nature of the covert agent stepping, in my submission, beyond the realm of Ridgeway's Case and proactively seeking a man who otherwise was not under their umbrella of suspicion, it is something that is an important legal point as to how Ridgeway would then be applied in those circumstances.

HIS HONOUR: What is the reference to Ridgeway's Case?

MS MACGROARTY: Your Honour, Ridgeway is reported in [1995] HCA 66; 184 CLR 19. Ridgeway, your Honour, was a situation where there was infiltration by the authorities of a very real and existing criminal activity, whereas in the case of Swift, whilst there was evidence of the authority having suspicion, there was no ultimate ring of corruption discovered by those authorities and that then involved them needing to participate to create such activity as opposed to infiltrating an existing - what may ultimately have been found to be existing. In Swift's Case that was not the situation.

Your Honour, if I might leave that point just for a moment until your associate returns with the report.

HIS HONOUR: No, no, you go ahead.

MS MACGROARTY: I was going to indicate to the Court that while another consideration is - that the Court would be satisfied that the matter can be alleviated if the application was to succeed today and I am instructed that the solicitors for the applicant are in a position to meet and confer with the Registrar, subject, of course, to the availability of the respondent's legal representatives, within a matter of days of the application - within 7 days. So, the index could be settled expeditiously and then the original time period, 28 days from that date, for the lodgement of the application book could be met.

HIS HONOUR: Anything further then, Ms Macgroarty?

MS MACGROARTY: Just this, your Honour, that where I raised in submission the issue of funds for this appeal, I am instructed that there are sufficient funds in trust with my instructing solicitors for the preparation of the application book in the event this application was allowed, as well as funds for counsel to appear at the special leave hearing. So, where there was a difficulty with the funds, where my client was imprisoned and there was some dispute as to what entitlements he was due, having obviously lost his job with the police service, the issue of funds has been resolved for the purpose of these court proceedings. That was something of significance during the six month period about which we are talking. Thank you, your Honour.

HIS HONOUR: Thank you. Mr Byrne, can you help me a little bit, please.

MR BYRNE: I will try, your Honour.

HIS HONOUR: I have not had occasion to look at these cases in any other context. Bunning v Cross still states the general principle, does it?

MR BYRNE: Yes, it does, as far as illegality or impropriety is concerned.

HIS HONOUR: There is a discretion and that that discretion can be exercised even in the case of illegal obtaining of evidence?

MR BYRNE: Quite so.

HIS HONOUR: Do the cases make any distinction between the illegal obtaining of evidence and the actual commission of a substantive offence in order to obtain evidence? Do I make myself clear?

MR BYRNE: Yes, your Honour.

HIS HONOUR: Is there any distinction drawn in the cases of that kind? I suppose Ridgeway, in a sense, is that sort of case, is it not?

MR BYRNE: Ridgeway, the facts as I recall them was that the Federal Police in fact committed an element of the offence.

HIS HONOUR: They imported the heroin, I think, did they not?

MR BYRNE: Yes.

HIS HONOUR: Is that right?

MR BYRNE: That is so. So, that is really a high watermark in the sense that an element of the offence with which the applicant in that case was charged was committed by the investigating authorities.

HIS HONOUR: And the High Court, in a sense, exercised the discretion. The High Court does not seem to have said that the discretion must always be exercised against the reception of the evidence. In Ridgeway neither the trial judge nor the intermediate Court of Appeal was prepared to exercise the discretion to exclude the evidence. The High Court did.

MR BYRNE: The High Court, with respect, seems to have established a new principle which it is entitled to do, of course. Having done so, that has been the test which has been applied subsequently. But in Ridgeway there is a passage - and I do not have the actual reference to it with me, but the Court analysed different situations and said that even where there was inducement by the investigating authorities and a commission of an offence is proved, then the public interest will almost inevitably weigh towards the admission of that evidence.

In the present circumstances, to attempt to answer your Honour's question earlier, the factual scenario was basically this: it was not disputed at trial or in the Court of Appeal that the Criminal Justice Commission had reasons to suspect that there was corrupt activity being carried out by police officers on the Gold Coast. Accordingly, a covert operative was brought in from New South Wales and that covert operative then followed the corruption trail by first contacting a drug dealer who said that they were receiving police protection. That drug dealer led to another. That drug dealer led to a police officer by the name of Spidalieri. There were conversation - and this is all uncontroversial, as I understand it - between the operative and Spidalieri in which Spidalieri spoke of having a contact in the Casino Squad on the Gold Coast who had access to a large data bank which would enable proper protection to be given.

There were then discussions between the operative and Spidalieri for an introduction to that person and, as it turns out, the person introduced, directly as a result of that, was the present applicant, Mr Swift, who was in charge of the Casino Squad, did have access to a data base and in fact, the conversation which is recorded in the judgment at the meeting between Swift and the operative, Swift is recorded as saying, inter alia, he has a "big fucking data base". He said, "If I check every couple of days it's going to - it's got to go on, you see." He was told by the operative, "All I need to know is it's either fine or sunny or cloudy." Swift replied, "All right", and Swift then acknowledged that he understands that "up front there is a three-way split of 5 grand between the applicant and his two mates." There was evidence of a further conversation after the meeting at which the money was paid over to Spidalieri. When Evans phoned the applicant - - -

HIS HONOUR: Said, "It's good weather" or something.

MR BYRNE: Quite so. So, what has occurred is, against that factual background, the Court of Appeal has applied or purported to apply the principles in Ridgeway.

HIS HONOUR: It does not sound much like the factual situation in Ridgeway's Case either, does it?

MR BYRNE: No, it does not. It seems, with respect, to being quite a legitimate and one could question how else the police could track a suspected corruption other than in the methods used here.

HIS HONOUR: Mr Byrne, what about the explanation for the delay? Do you say anything about that? I suppose the Crown's attitude is fairly neutral on something like that?

MR BYRNE: Yes. We have no submissions in respect of that matter except, as we point out in our written outline - I take it your Honour has received that written outline - that this being a special leave application or an application for special leave, then there is no appeal currently on foot between any parties and, to that extent, it is different to where there is a right of appeal.

HIS HONOUR: Mr Byrne, I have to tell you that I think there is a great deal of substance in everything you have said. Frankly, I am a little concerned that one Judge, sitting alone, having the power - and I know the application is deemed to be abandoned, but having the power, in effect, to put the applicant entirely out of court, whether I should do that and whether I should not allow him his day or his 20 minutes.

MR BYRNE: His 20 minutes plus 5 minutes in reply, yes.

HIS HONOUR: Exactly, on his special leave application which would be to two or three members of this Court. I mean, I am not doubting your proposition, indeed, it is acknowledged on the other side, that the prospects of success, which do not look very promising to me, I might say, are relevant matters.

MR BYRNE: Yes.

HIS HONOUR: So, I tell you that I am disinclined to accede to your arguments although, as I say, I think there really is a great deal of substance in them.

MR BYRNE: I understand, if I may say so, with respect, your Honour's concerns in that regard.

HIS HONOUR: Are there any conditions I should impose if I were to enlarge the time?

MR BYRNE: The respondent will, of course, use its best endeavours to comply with the time limits. I can inform the Court that in fact our written outline in response to that filed 6 months after the application has been prepared and can be filed.

HIS HONOUR: I would not impose any conditions on you. I am really asking whether I should impose any conditions on the applicant, in your submission?

MR BYRNE: I can think of none except that they proceed either simply

expeditiously or within times prescribed by your Honour.

HIS HONOUR: So, what has to be done? Is the index available or what has happened in - - -

MR BYRNE: There has been, as I understand it, no discussion between the applicant and the Registrar or the Deputy Registrar and/or the respondent in respect to that.

HIS HONOUR: He is in prison, I suppose, the applicant, is he?

MR BYRNE: Yes, but normally his solicitors would have instructions to settle the index.

HIS HONOUR: Is there anything further you wish to say on the question?

MR BYRNE: No. Thank you, your Honour.

HIS HONOUR: Thank you, Mr Byrne. Ms Macgroarty, you heard that. I am inclined to extend the time. Just tell me, when can the index be settled?

MS MACGROARTY: Your Honour, the applicant is in custody but that does not stop the instructing solicitor from taking instructions.

HIS HONOUR: No. Well, he will not be involved in that.

MS MACGROARTY: It is a legal matter, really, as to what is in the index.

HIS HONOUR: Yes.

MS MACGROARTY: Your Honour, Mr Cuthbert of Counsel, you may have noted from the correspondence attached to the second affidavit, has been caught up in a long, protracted trial, but perhaps could I suggest that the instructing solicitors and the Registrar meet to settle the index and then within 2 days from today that an appointment be held with the Registrar for that purpose, and then there be some opportunity for Mr Cuthbert to look over the settled index before it is engrossed. So, perhaps if the index could be settled and engrossed - - -

HIS HONOUR: Well, I do not see that Mr Cuthbert has to look over it. It is a criminal case. You do not have any pleadings. It should not be difficult to settle an index in a case of this kind.

MS MACGROARTY: Well, perhaps then, your Honour, a direction that the index be settled and engrossed within 7 days from today and that the applicant then prepare and lodge the requisite number of application books with the Registrar, in accordance with Order 69A, within 28 days from the applicant's receipt of the Registrar's index.

HIS HONOUR: All right. Thank you, Ms Macgroarty.

MS MACGROARTY: Thank you, your Honour.

HIS HONOUR: In this matter, the applicant has filed an application for special leave to appeal to this Court from a judgment of the Court of Appeal in Queensland affirming his convictions for serious criminal offences.

The applicant failed to comply with Order 69A rule 10 of the Rules with respect to the preparation and filing of the application book. That failure continued for 6 months. In consequence, the application is deemed to be abandoned pursuant to Order 69A rule 13. However, a Justice of the Court does have power to enlarge time pursuant to Order 60 rule 6 of the Rules of the Court. The discretion to enlarge time is obviously a wide one but should be exercised having regard to any explanation proffered with respect to the delay and the possible prospects of success of the application.

The applicant is in prison and it does seem that the Rules were not complied with owing to a number of misunderstandings on the part of those who represented him. Having regard to that matter and to the fact that any application for special leave will fall to be determined not by one Justice of this Court but by two or three Justices of this Court, sitting on a special leave application, I am prepared to make an order extending the time. In doing so, I make no comment on the other matter which is, in some circumstances, highly relevant, that is, the prospects, if any, of success of the application for special leave.

I will, accordingly, make an order extending the time and I direct that, subject to the convenience of the Registrar, an index be settled within 7 days from today and that the application book be prepared and finalised, filed and served, within 14 days following the expiration of the 7 days to which I have referred.

Is there anything else?

MR BYRNE: Not from my point of view, your Honour.

HIS HONOUR: Thank you. Thank you for your assistance, Mr Byrne.

MS MACGROARTY: Thank you, your Honour.

HIS HONOUR: Thank you, Ms Macgroarty.

AT 11.48 AM THE MATTER WAS CONCLUDED