Cameron v The Queen P87/2000 [2001] HCATrans 555 (25 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P87 of 2000

B e t w e e n -

JOHN LEONARD CAMERON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 25 OCTOBER 2001, AT 9.29 AM

(Continued from 24/10/01)

Copyright in the High Court of Australia

GAUDRON J: Yes. The appearances are as before, I take it. Now, Mr Cock, can you assist the Court in this matter?

MR COCK: Certainly, your Honour. A chronology has been produced by my office which should be now before your Honours.

GAUDRON J: Has this been discussed - Ms Amsden, you are present in Court. You have been able to check some matters for us, have you?

MS AMSDEN: May it please your Honour. There has been filed just immediately an affidavit by myself indicating the examination of the contents of three separate files at Legal Aid held by Mr Cameron. I have annexed thereto a letter that was written to the Director of Public Prosecutions dated 10 November 1999 by the practitioner who was then representing Mr Cameron. I can say from my examination of the files that the contents of my affidavit are true and correct.

GAUDRON J: Yes, thank you. Has that been given to Mr Cameron?

MS AMSDEN: It has been given to Mr Cameron.

GAUDRON J: Do you object to us receiving that?

MR CAMERON: No, your Honour. No, I do not.

GAUDRON J: Mr Cock, do you object?

MR COCK: No, not at all, your Honour.

GAUDRON J: Thank you. Is there any difference between you and what is in the affidavit, Mr Cock?

MR COCK: I have not even read it yet, your Honour, I am sorry.

KIRBY J: Has Mr Cameron seen the chronology that you have prepared, Mr Cock?

MR COCK: I understand he has it, your Honour. I do not know whether he has read it or not.

GAUDRON J: Yes. All right. Did you wish to take a seat, Ms Amsden? We will just have a quick look at this. Mr Cock, that first page, the complaint, shows an amendment but I take it that the amendment was made on 17 November.

MR COCK: That is correct, your Honour. That was an oral motion to amend.

GAUDRON J: The chronology here does not tell me anything about he certificate.

MR COCK: No. That is because the certificate was not provided to Legal Aid by my office. It was provided by the police service of Western Australia, pursuant to the usual arrangements, and my office has not been able to find out from the police service when they provided the certificate. That is because the police service have their file in a file-away section and we were not able to access it last night and, as I say, we were not involved in providing the certificate to Legal Aid.

GAUDRON J: I simply do not - - -

MR COCK: The police have the conduct of the prosecution until the election date, therefore, the provision of materials to an accused person - the file does not even come to my office until well after things like the certificate have been prepared, as I understand it. So my office would not have been involved in the case probably - - -

KIRBY J: Can we work out from this material and can there be agreement as to the date on which, at the latest, the prosecution, whether police or your office, indicated that you had changed the charge and the delay thereafter, between that moment and the indication of the plea of guilty, taking into account the access in that interim of the applicant to legal assistance to communicate that plea?

MR COCK: The answer is no. The chronology I have - you see, my office had no control over the carriage of the matter until on or about the date of the preliminary hearing. Prior to that it was managed by police and I do not know what communication the police had with the Legal Aid Commission because I do not have their file.

GAUDRON J: It seems that he indicated a plea of guilty even before the charge was amended.

MR COCK: The first advice my office received an indication of a plea of guilty was 10 November and your Honours will have that letter, both annexed to the affidavit and also provided in the chronology.

KIRBY J: Yes.

MR COCK: Your Honours will have read that it is expressed that I confirm that he wishes to enter a plea of guilty to the charge.

GAUDRON J: Yes, and if you read the affidavit of Ms Amsden, Legal Aid was only ever there for a plea of guilty. So it has obviously made it clear to someone right at the very beginning, well - - -

MR COCK: But not to my office, that is the crucial difference we say.

GAUDRON J: But your office did not have charge of it.

MR COCK: No.

GAUDRON J: This is a catch-22.

MR COCK: Your Honour, an election to have a preliminary hearing is inconsistent with an intention to plead guilty. That is an election a person must - - -

GAUDRON J: With great respect, have you read the affidavit?

MR COCK: I have just read page 2, your Honour.

GAUDRON J: Yes, legal aid was granted for a plea of guilty.

MR COCK: Yes.

GAUDRON J: Now, at some stage it has become obvious that someone is aware that the charge is wrong.

MR COCK: No, with respect, your Honour, the charge was right in the complaint.

GAUDRON J: The one annexed to your chronology, which is amended, as I take it, on 17 November, which is even after it has been indicated that the plea will be a guilty plea, is initially typed as "ecstasy", is it not?

MR COCK: Yes, it is, your Honour, but it is not pleaded. That is a particular, your Honour, as is acknowledged by the Legal Aid Commission.

GAUDRON J: Yes. They have told you what they will plead to but it is not typed as a particular. Now, I do not know what your practice is over here.

MR COCK: It is pleaded as "had in his possession a" prohibited drug.

GAUDRON J: Namely.

MR COCK: Then it is namely, then there is a drug description "with intent to sell or supply".

GAUDRON J: This is hairsplitting and stupid, is it not? There is a complaint which has the wrong substance. That much is agreed. You cannot tell me, notwithstanding that the matter was adjourned yesterday for you to find out, what happened with the analyst's certificate. Legal Aid cannot tell me, which given that they are not even involved in the matter, one can only express gratitude for what they have done.

MR COCK: But they were acting, your Honour. With respect, your Honour, they were acting throughout for this man. If anyone is in a position to say when the police provided to them the certificate is them, not my office.

GAUDRON J: I daresay that may be but they are not acting now.

MR COCK: I accept that, your Honour.

GAUDRON J: Mr Cock, we have had occasion to express shock at some of the things that have been disclosed in the matters in which you have appeared in this sitting.

MR COCK: With respect, your Honour, that is unfair.

GAUDRON J: This is - - -

MR COCK: With respect, your Honour, the remark that the Court has expressed shock at some of the matters in which my office has been involved is an unfair remark.

KIRBY J: I said yesterday that I thought the written submissions which we get from your office - and I prefaced it by saying it is no doubt because of pressure of work - but they are not as detailed. You see, if you are sitting here and you have people who are appearing in person, you really do need the Crown to lay out more detail. Now, it may just be a misunderstanding or lack of technique, but every other Director of Prosecutions in the Commonwealth analyses the case realising that applicants who are appearing in person often cannot do that in a systematic way and they recognise that fact and they set out the nature of the issues and their contentions in it. But if I can say so, with respect - and I agree with Justice Gaudron - the submissions we have had in Western Australia have been very abbreviated and it imposes extra burdens on us. We have conveyed that to you and no doubt you will take that into account.

MR COCK: I accepted that, your Honour, yesterday, but her Honour remarked that she has expressed shock at the practices, and, with respect, that is unfair.

GAUDRON J: We had very great difficulty with the matter, you will recollect, yesterday, where co-accused entered pleas or were sentenced on different occasions.

MR COCK: But I advised your Honour that that was through the Supreme Court listing process that split an arrangement and my office, in fact, brought it to the attention of the Court.

GAUDRON J: Well, I do not think you can - very well, your office accepts no responsibility but it must deal with the consequences.

MR COCK: I accept that, your Honour.

GAUDRON J: And you accept no responsibility for this?

MR COCK: No, I do not.

GAUDRON J: Very well. Do you wish to say anything else?

MR COCK: There is one more matter I should draw to your Honour's attention and it is with regret. Your Honour asked me yesterday whether this was a Commonwealth matter. I have looked at it very carefully overnight. The offence occurred in fact on a Commonwealth place, at Perth Airport, and pursuant to the Commonwealth Places (Application of Laws) Act 1903 State law applies to the place but it is technically a Commonwealth offence, although it may be pleaded under the Commonwealth Places (Application of Laws) Act as a State offence and that is why the indictment is framed correctly, in my submission, as it is, but I did not want to mislead your Honour. In fact, technically, it is a Commonwealth offence. If it had gone to trial, for example, it would be determined according to the law that would be applicable to the determination of Commonwealth matters.

KIRBY J: And the court would be exercising federal jurisdiction.

MR COCK: Absolutely correct, yes. That is the only other observation I have to make.

GAUDRON J: Mr Cameron, do you wish to say anything further?

MR CAMERON: Yes, I do, thank you, your Honours. Your Honours, considering that this has now gone on for two and a half years and the learned counsel for the Crown would like it remitted back to the Court of Criminal Appeal where - - -

GAUDRON J: I do not think that is right.

MR CAMERON: I think he said yesterday - - -

GAUDRON J: He is opposed to special leave.

MR COCK: Your Honour is correct. The applicant is wrong.

GAUDRON J: Yes.

MR CAMERON: My mistake. I thought yesterday that your Honour had said that the special leave was granted.

GAUDRON J: No, I asked him if he would consent to that course, but he does not.

KIRBY J: What is the position of your sentence? How far are you into your sentence now, Mr Cameron?

MR CAMERON: I have done two and a half years now.

KIRBY J: How long?

MR CAMERON: Two and a half years - - -

KIRBY J: But even if you received - assume that you were to receive on resentencing by the Court of Criminal Appeal a 25 per cent discount, that would still leave quite a lot of your sentence still to serve, would it not?

MR CAMERON: I was hoping, because this matter is - for the last 12 months I have been continually, nonstop, having to go through the legal process and trying to find - I have not at the moment - - -

KIRBY J: I understand that, but even if you - will you attend to my question?

MR CAMERON: Yes.

KIRBY J: If you got a 25 per cent discount, you would still have quite a long - - -

MR CAMERON: Well, a 25 per cent with work release and other things I would be eligible to be released in four months time. On a 30 per cent discount, I would be eligible for parole in two months time and work release - I am already four months into when I could have been released from work release on a 30 per cent discount. A 25 per cent discount, I have four months to go where I would be eligible for work release.

KIRBY J: These are mysteries of sentencing practice in Western Australia that I do not understand, but the point you are making is that to be useful to you you would need to have the appeal heard promptly.

MR CAMERON: Yes, your Honour.

KIRBY J: Because even if the appeal were heard, we could not resentence you. We would have to send it back to the Court of Criminal Appeal even if you succeeded on the appeal.

MR CAMERON: With respect, your Honour, in my limited research I found that under section 37 of the Judiciary Act, Commonwealth, that - - -

GAUDRON J: Yes, but this is not a sentencing court. The last court in the land experienced - the least experienced court in the land with respect to sentencing is this Court. It deals with legal questions and the legal question in this case is whether the Court of Criminal Appeal should have disposed of the matter on the basis that you could have pleaded guilty earlier and that is, in essence, what they did.

MR CAMERON: I contend, your Honour, that this could have been resolved a year ago in the Court of Criminal Appeal and it is still, a year later - - -

GAUDRON J: We understand that.

KIRBY J: We know that that is your submission - - -

MR CAMERON: And it would be another six months - - -

KIRBY J: - - - but all we are doing at the moment - you stand at the gateway, you see, as to whether you get special leave and I think Justice Gaudron and I are inclined to give you special leave, but then we have to hear the appeal. But you make the point that to be useful to you the appeal would have to come on pretty soon.

MR CAMERON: Very soon, yes, your Honour.

KIRBY J: I think that has been noted and we will convey that to the appropriate administrators of the Court.

MR CAMERON: That is all I have to say, I think, your Honours.

KIRBY J: Yes. One would hope that on the return of the matter the Court would have the assistance of both ends of the Bar table.

MR CAMERON: I do have an outline of submissions, if I could - - -

KIRBY J: What, this is in the whole appeal, is it, your outline of submissions?

MR CAMERON: This is in relation to this matter that hopefully I would - - -

KIRBY J: But do we not have a copy of your submissions? They were in the application book.

MR CAMERON: Yes, but this is what I drew up last night about this particular matter having been dragged on for so long and - - -

GAUDRON J: Yes, but there is nothing we can do about that. Mr Cock, you still oppose the grant of special leave?

MR COCK: I do, your Honour.

GAUDRON J: And you do not oppose - - -

MR COCK: Expedition is not opposed, your Honour.

GAUDRON J: Expedition is not opposed.

MR COCK: No.

GAUDRON J: In practical terms, if Mr Cameron is not granted legal aid, there will be no means of it being expedited until - being heard until next year.

MR COCK: I fully accept that, your Honour.

GAUDRON J: But you oppose everything?

MR COCK: I do, your Honour.

GAUDRON J: Yes. That being the case, all we can do is grant special leave, which we are minded to do, but we would indicate that really there is just one issue in this and that is whether, in the circumstances, the Court of Criminal Appeal should have disposed of your application for leave to appeal on the grounds that you should have pleaded guilty earlier and that is the only issue in the matter. It may be necessary - do the papers disclose - - -

KIRBY J: Perhaps this is directed to you, Mr Cock.

MR COCK: Yes, your Honour.

KIRBY J: You would know the authority of the Court in Mickelburg and Eastman. We cannot receive evidence.

MR COCK: Yes.

KIRBY J: How are we going to establish facts in the matter?

GAUDRON J: I take it that you would accept responsibility for the appeal book, Mr Cock?

MR COCK: Certainly, your Honour, there is no difficulty in my office assuming the responsibility of the preparation of the material.

GAUDRON J: The appeal book should show that the transcript - - -

KIRBY J: And all other matters that are relevant to the record.

GAUDRON J: - - - at least in the Magistrates Court, to indicate when that charge was amended because the document you have given me does not indicate that.

MR COCK: Your Honour, our chronology would concede it was on 17 November, which was the date of the plea. We do not contend that it was amended any earlier than that.

KIRBY J: So immediately you amended he pleaded?

MR COCK: Yes, your Honour.

KIRBY J: Well, how can there be delay between the articulation of the offence to which he ultimately was obliged to plead and did plead?

MR COCK: I can only perhaps somewhat repetitively say the argument which was accepted below was that the charge of possession of a prohibited drug with intent to sell or supply was a matter that he could have accepted earlier if he wanted the full benefit of demonstrating remorse and - - -

KIRBY J: He was not remorseful for ecstasy.

GAUDRON J: On the other hand, he can only - well, we have heard - - -

MR COCK: That is the argument and therefore that is the only point that we will be seeking to articulate on the appeal. We will concede now, and it is no issue, that the charge was amended on 17 November 1999 and he pleaded on that day and his advice as to a plea was provided by a letter from the Legal Aid Commission on 10 November 1999. There is no issue about any of those facts. There may be difficulty, in any event, getting the transcript of the Magistrates Court proceedings almost two years ago now. There is no copy on my files, I can indicate, and it may be it has not been transcribed. But I should say that that may not be necessary, having regard to our concession on the facts.

GAUDRON J: Are you able to indicate whether you can make further inquiries and make a concession about the analyst's certificate?

MR COCK: I intend to, your Honour. I have explained how I have sought from the police their file. They will obtain it for me but have not been able to do so overnight. Obviously if that demonstrates when the certificate was provided to the then representatives of the applicant, I am sure that no issue will arise.

GAUDRON J: It may be you can provide some explanation as to why the same matters were not made known to the Court of Criminal Appeal.

MR COCK: Your Honour, all information that the Court wishes would be available. We would not be imposing any procedural restriction on the Court having access to that sort of information. I do not, frankly, think that my office is culpable in relation to the issues to which your Honour refers. I am happy to provide all information.

GAUDRON J: Did you tell the Court of Criminal Appeal that he pleaded guilty immediately the charge was amended?

MR COCK: Yes.

GAUDRON J: Did you tell it when the information about the drug was made available to them?

MR COCK: Yes, that was before the court, that information, yes.

GAUDRON J: Does it appear in - - -

MR COCK: It was said some time after 28 June and prior to 10 November. That was the level of the information.

GAUDRON J: Well, that is hardly information.

MR COCK: He was represented, your Honour, at the time of the hearing before the Court of Criminal Appeal.

KIRBY J: How does this Court take cognisance of the fact that we were told yesterday that it would not otherwise be before the Full Court, except perhaps on the record of the special leave application, that the applicant had difficulty, which other prisoners have, of contacting Legal Aid, anyway, in the interim?

MR COCK: My respectful submission is that there is no evidence to sustain that and that is not the evidence that has been produced by the officer from Legal Aid who has provided an affidavit today. It demonstrates a consistent course of conduct and communication with the applicant.

KIRBY J: It will just have to be a matter of argument when the matter is returned.

MR COCK: But that will not be a matter of concession by us under any circumstance.

KIRBY J: It may be that when the matter comes on for hearing you can indicate by concession and by reference to transcript the dates, so it is not a big factual issue.

MR COCK: No.

KIRBY J: Then it is just a question of principle as to whether the delay was such, given the state of the record and the charge against him that the Court of Criminal Appeal ought to have found, as it did, that he tarried on his way to his plea and therefore did not show remorse.

MR COCK: Yes.

KIRBY J: Or, as soon as you amended the plea and got the plea right, he pleaded straightaway and should have had the benefit of the discount for that.

MR COCK: Certainly. That was the issue that was articulated before the Court of Criminal Appeal. They found against the applicant. We obviously accept that that is the argument the Court wishes to hear.

KIRBY J: It just does seem unreasonable to expect a person to plead when the charge has not been correctly formulated, but I might be dissuaded from that view when the matter is heard.

MR COCK: Thank you, your Honour.

KIRBY J: On the other hand, you might be persuaded in the light of the exchanges of Justice Gaudron and myself on the special leave hearing to come to a different view before the return of the matter and I remember very well, Mr Cock, to your great credit in Melbourne you once indicated to the Court on the return of the matter that you could not properly argue it and thereby displayed the very best traditions of the Crown. It may be you come to that view. If you do, no doubt things could be done by consent or some other order could be made.

MR COCK: Indeed, your Honour. Your Honour appreciates I do not have a full command of the factual background yet.

KIRBY J: Yes.

GAUDRON J: Very well. Special leave is granted. The Court will adjourn to reconstitute.

AT 9.54 AM THE MATTER WAS CONCLUDED