Grosser v South Australian Director of Public Prosecutions A33/2001 [2002] HCATrans 398 (15 August 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A33 of 2001

B e t w e e n -

TONY DOUGLAS GROSSER

Applicant

and

SOUTH AUSTRALIAN DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 15 AUGUST 2002, AT 10.26 AM

Copyright in the High Court of Australia

MR T.D. GROSSER appeared in person.

MR P.J.L. ROFE, QC: I appear with my learned friend, MR C.J.B. WEIR for the respondent. (instructed by the Director of Public Prosecutions(South Australia))

KIRBY J: Mr Grosser, you will have to come to the centre because there is a microphone that records everything. So if you come to the centre and speak into the microphone, I would be grateful.

MR GROSSER: Would you like me to do that now, your Honour?

KIRBY J: Yes, come into the centre and move the podium just a little away from Mr Rofe and speak from there. If you need a glass of water, perhaps the officer would pour the water out for you. Yes.

MR GROSSER: Thank you, your Honour.

KIRBY J: You know you have 20 minutes.

MR GROSSER: Thank you, your Honour. Honourable Judges of the High Court of Australia, I, Tony Douglas Grosser, ask for your help. If it pleases you, I ask you regarding this application that you please take time and consider that I am not a lawyer and have little funds so cannot pay a lawyer to act for me, plus I did not pass Year 9 at school, that being second year high school and I left school at the age of 14.

KIRBY J: I am not hearing you clearly, Mr Grosser. You will have to speak up.

MR GROSSER: Thank you, your Honour. I ask your honourable Judges of the High Court to consider that I say I not only needed a lawyer to obtain a fair and proper trial, hopefully, regarding my trial and retrial No 392 of 1994 in the South Australian Supreme Court, but I needed a lawyer that would try for me and follow my reasonable instructions and my lawyer to not cover up for other people, so denying me a fair and proper trial.

KIRBY J: Yes, but can I explain to you the problem you have. You have an application to us concerned with an objection you have to an interlocutory ruling, a ruling made in the course of the proceedings by Justice Duggan. His Honour refused the relief that you sought and then the trial proceeded. You were convicted, as we are informed, and you have now made an application to the Court of Criminal Appeal against that conviction.

So that is the place where this objection to what Justice Duggan did will arise, and if you are dissatisfied with the disposal of the matter in the Court of Criminal Appeal, you can then seek leave to appeal to us, but we would not, at least normally, perhaps ever, get involved in a matter which is a challenge to an interlocutory order. We deal with the final orders of the case. Do you understand that?

MR GROSSER: Not really, your Honour.

KIRBY J: Can I explain the reason for it? The reason is we are a very busy national Court and, therefore, we do not deal with the orders that are made on the way. We deal with the final orders because all of the complaints about the orders made on the way can be raised in objection to the final orders and you would have a right to, if you were still dissatisfied after the decision of the Court of Criminal Appeal, come to us and raise your objection that you are now seeking to raise separately. That way we gather all the problems together and deal with them in the one hit.

MR GROSSER: If it please the Court, your Honour, his Honour Justice Duggan refused me leave to appeal against his decision for me to have a lawyer - - -

KIRBY J: We realise that and the trial went on and it went on for a very long time and then you were convicted and you, I believe - we have been informed by the Director - have applied to the Court of Criminal Appeal. Is that correct, to appeal against your conviction?

MR GROSSER: Yes, your Honour, and I would ask the Court to find that Justice Duggan erred in not allowing me to have a lawyer.

KIRBY J: You may or may not have a good point there. You may or may not have a good point, but the time to raise that point, in this Court, is if the Court of Criminal Appeal does not give you satisfaction. It is a practical problem, you see. A lot of cases go away in the Court of Appeal, or Court of Criminal Appeal and we are not troubled with them and that way we save ourselves so that we can work on the cases which we have to deal with. That is the reason for it. It is a sensible distribution of our time.

MR GROSSER: Yes, your Honour. If it pleases the Court, I was under the impression that because Justice Duggan in the Supreme Court would not give me leave for me to have a lawyer before the trial started and/or during the trial, that I could not do anything about it except come to the High Court because he would not give me leave because I asked him.

KIRBY J: That might or might not have been correct at that time, but your trial went on. The trial went on and you were convicted and you have now sought to appeal against a conviction and there is a principle that you can raise in objection to the conviction the interlocutory orders that are made on the way to that. I do not know, have you raised in your appeal or application to the Court of Criminal Appeal objection to what Justice Duggan did in refusing the stay that you sought? Have you raised that question in your application to the Court of Criminal Appeal?

MR GROSSER: I believe, your Honour, I have.

KIRBY J: Yes. Well that was a sensible and correct decision, and that is where your application will be heard and that is where you might succeed. I do not know. If you succeed we are not troubled. Do you understand? It is a matter of our sparing ourselves as many burdens as we can because we have enough.

MR GROSSER: If it pleases the Court, your Honour, are you saying that it should be referred back to the Full Court of the South Australian Supreme Court in the Court of Appeal?

KIRBY J: We do not have to do that because you have already raised it in your application to the Court of Criminal Appeal of South Australia and that is where you should be mounting the argument that you had ready to present to us today, and if you succeed there, that is the end of the matter. It will have to go back to a new trial and that will be for the Court of Criminal Appeal. If you do not succeed, well you are not in a worse position. You can come back to this Court after the decision of the Court of Criminal Appeal and seek special leave at that stage. They might clear away some of the issues that you would want to agitate before us. Do you understand what I have explained to you?

MR GROSSER: Yes, your Honour, and I leave it at that because you are the Judge.

KIRBY J: Yes. I think this application is premature but it is not to say that it will go away forever. It may come back here one day but that will depend on what happens in the Court of Criminal Appeal.

MR GROSSER: Thank you, your Honour.

KIRBY J: Thanks, Mr Grosser.

MR GROSSER: Could I have a copy of today's transcript, please.

KIRBY J: Yes, I will direct that that be made available to you. Do you have anything to add to what I have said, Mr Rofe?

MR ROFE: No, your Honour, that reflects the respondent's position.

KIRBY J: Yes, very well. You may sit down now.

MR GROSSER: Thank you, your Honour.

KIRBY J: The applicant complains that his trial judge, Justice Duggan, erred in refusing him leave to appeal to the Full Court of the Supreme Court of South Australia before his trial commenced, in relation to that judge's refusal to stay his trial. The applicant's trial proceeded and on 3 June 2002 he was convicted by a jury of attempted murder and five counts of endangering life. The applicant was unrepresented throughout the trial, which lasted 101/2 months.

The Court understands that the applicant has sought leave to appeal to the Supreme Court of South Australia against his conviction. The applicant has confirmed this before us today. That application was adjourned on 5 August 2002 to be relisted before that court on 23 August 2002.

The application in this Court to challenge an interlocutory order is premature. The proper time to raise any objection to the interlocutory proceedings before Justice Duggan will be on the return of the proceedings before the Court of Criminal Appeal, if leave is granted by that Court. Depending on the outcome of those proceedings, the rights of the applicant to apply to this Court will be preserved. Special leave to appeal is refused.

The Court will now adjourn until 2.00 pm on Tuesday, 20 August 2002 in Sydney.

AT 10.35 AM THE MATTER WAS CONCLUDED