Nguyen v Critchlow & Anor S89/2002 [2002] HCATrans 560 (5 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S89 of 2002

B e t w e e n -

THI KIM LOAN NGUYEN

Applicant

and

ROBERT ANTHONY CRITCHLOW

First Respondent

M. RANDELL

Second Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 12.07 PM

Copyright in the High Court of Australia

MR J.F. BLEECHMORE: If the Court pleases, I appear on behalf of the applicant. Mr Game and I seem to have swapped sides on the official notice. I appear on behalf of the applicant. (instructed by Law Offices of Ellinghaus & Lindner)

MR T.A. GAME, SC: If the Court pleases, I appear for the first respondent with MR R.B. WILSON. The second respondent has filed a submitting appearance. (instructed by National Crime Authority)

GAUDRON J: Yes, and the Registrar so certifies. Thank you, Mr Bleechmore.

MR BLEECHMORE: If the Court pleases, may I deal first with the question of the discretion to grant leave and, secondly, with the question of the correctness of the decision below and whether it is attended with sufficient doubt to justify the grant of leave. The judgment appealed from, it was a matter of common ground, was a final decision and, moreover, it is one that dealt finally with the substantive rights of the subject. For that reason, we would in the first place submit that it is a judgment from which, in fact, leave is not required and that the relevant section of the - - -

GAUDRON J: You may be right on that, but that would be really an idle question, would it not, unless you could make good your argument of error in the approach to setting aside the warrant?

MR BLEECHMORE: Yes, that is the second part of my submissions, that it is attended with sufficient doubt. In this kind of case, we would submit no great doubt need be shown and that the proper rule should be that leave should be granted almost as a matter of course unless the court is satisfied - - -

GAUDRON J: Yes, but on what basis do you say this warrant should be set aside ultimately?

MR BLEECHMORE: Because the fact that there are, and still are, multiple proceedings on foot in relation to the self same facts - - -

GAUDRON J: That is not true, is it? There may be multiple warrants around, but is there any proceeding on foot in New South Wales?

MR BLEECHMORE: Yes, there is a proceeding in Victoria which was commenced - - -

GAUDRON J: In New South Wales?

MR BLEECHMORE: Two proceedings. Exactly the same proceedings commenced in New South Wales.

GAUDRON J: There is a warrant been issued. Let us deal with the warrant that was issued that you are challenging.

MR BLEECHMORE: Yes - well, two warrants.

GAUDRON J: You are only challenging the last warrant, are you not?

MR BLEECHMORE: Yes, your Honour.

GAUDRON J: All right. Have any proceedings been commenced in consequence of that warrant?

MR BLEECHMORE: Yes. The proceeding below is, of course, an application to set aside that warrant.

GAUDRON J: Have any criminal proceedings been commenced against your client pursuant to that warrant?

MR BLEECHMORE: Yes.

GAUDRON J: What?

MR BLEECHMORE: I put it the other way, your Honour.

GAUDRON J: Yes, I know you put it the other way and that is where I think you are leading yourself into error.

MR BLEECHMORE: We would say that the proceedings are commenced with the laying of the information.

GAUDRON J: Exactly. Has any information been laid pursuant to that warrant?

MR BLEECHMORE: Yes. Two informations were laid, one in March and one in July, and that is precisely the issue.

GAUDRON J: All right. Then if you complain about the multiplicity of proceedings, surely the remedy is to stay the proceedings, not to set the warrant aside.

MR BLEECHMORE: It may well be, but the immediate issue confronting my client was the issue of the second warrant and the applications under section 83 of the Service and Execution of Process Act, applications that were made in Melbourne. The multiplicity of the proceedings certainly gives rise to the right to apply for a stay and it may well be that that is a course which my client would be well advised to take, but the immediate issue, the one raised by the NCA, is the warrant, which is based on an information which in itself, we say, is an abuse of process because it gives rise to a multiplicity of proceedings, two of which were commenced improperly in the sense that they were not intended to be prosecuted to their culmination and which, as it were, in this particular case, impeached the integrity of the information that underlay the warrant that was sought.

We say that whatever minimal disclosure must be made by an applicant for a warrant, it must include matters of this kind, which are not only an abuse of process, but also impugn the underlying information, which is itself, we say, an abuse of process.

GAUDRON J: We understand that, but, in fact, no steps have been taken in any of the proceedings yet and it is up to you, is it not, to approach each of the courts and seek to have the informations dismissed? I mean, your real complaint is that you cannot escape the extradition.

MR BLEECHMORE: Charges have been laid against us in Victoria and we are content to face trial in Victoria. Those proceedings have, we would say improperly, been adjourned from time to time for three years and nine months in circumstances where indications have been given that there is no intention to prosecute those. The first step has not been taken in providing us with a hand-up brief. We are willing to undergo trial there and, in my submission, in those circumstances, to commence a proceeding in New South Wales on the following day, on 9 February, and then to commence a second proceeding and then to seek to execute a warrant on the basis of a second - - -

GAUDRON J: For extradition.

MR BLEECHMORE: Well, that is what it effectively amounts to, your Honour.

GAUDRON J: Yes, seek to proceed on the warrant to obtain extradition to New South Wales.

MR BLEECHMORE: Yes, and I suppose the course could have been taken of opposing the application under section 83 in Melbourne because a ground for resisting the application - in fact, the only ground is that the warrant was invalid, but the view was taken by the Director of Public Prosecutions that no collateral attack could be levelled at the warrant in that jurisdiction because it had been issued in New South Wales and so the view was taken that if we were to impugn that warrant, we had to do so in New South Wales.

We would have an empty question if the proceedings had been withdrawn, if the NCA had withdrawn the first proceeding at the time when it laid the second information in New South Wales or if it had withdrawn the Victorian proceedings, but all three are still there and we are thrice vexed in circumstances - - -

GAUDRON J: Well, you would be if the proceedings went forward.

MR BLEECHMORE: At the moment we are and - - -

GAUDRON J: Well, that is arguable.

MR BLEECHMORE: Well, I am not saying and I cannot say that there is any intention to prosecute these through to finality, the three of them. Clearly not. What we say is - - -

GAUDRON J: That being so, why are the parties not in a position to go and get those that are to be discontinued discontinued instead of coming to this Court on what, whether it is a final or interlocutory question, is really just a preliminary skirmish in this matter?

MR BLEECHMORE: Because that is the way it has happened and we have addressed - - -

GAUDRON J: Well, exactly.

MR BLEECHMORE: - - - each step as it has occurred and - - -

GAUDRON J: No, you have instituted a lot of the steps. You have instituted the steps that have brought you here.

MR BLEECHMORE: But the only step we have instituted - - -

GAUDRON J: Was to set aside the warrant.

MR BLEECHMORE: Yes.

GAUDRON J: On the ground, I take it, that it was obtained in bad faith.

MR BLEECHMORE: Well, yes, that and also on the ground that - - -

GAUDRON J: An abuse of process.

MR BLEECHMORE: - - - as a matter of law, the matters that I have referred to, which bring, we say, the administration of criminal justice into disrepute, should have been disclosed to the issuing justice. What we say brings justice into disrepute is the ability the prosecuting authority then has to move from one proceeding to another at its convenience, to take a step a here, to take a step there, as was done in this case. In the case of the two New South Wales proceedings, the first one foundered because of lack of documentation, so the second proceeding was commenced, but then without any notice to us, in December of that year the NCA, for reasons best known only to itself, decided to revive the first New South Wales proceeding in which our side had consented to the extradition order.

The second proceeding, of course, was in place and the extradition proceedings had been adjourned from time to time and was still pending. In those circumstances, they went back to the first New South Wales proceeding and sought to revive that. The process was not served on us. It was a direct approach to the court, which we found out by accident. When we turned up, they were surprised and the magistrate, having been informed of the second proceeding, then made no orders in relation to that proceeding.

Now, it is simply wrong and brings the system of criminal justice into disrepute to have proceedings sitting there with the prosecuting authority able to take steps at its whim or caprice in order to achieve what may seem is a perfectly worthwhile practical end but, nonetheless, in my submission, the courts of this country must be vigilant to prevent the thin edge of the wedge. As I say, this is not going to be - - -

GAUDRON J: It is never a good argument, the thin edge of the wedge, Mr Bleechmore.

KIRBY J: It is like those floodgates.

GAUDRON J: The point is this: there are known remedies in relation to the proceedings. Now, I think it is very likely the fact, is it not, that you can treat the proceedings first started in New South Wales as terminated, can you not, in practical terms?

MR BLEECHMORE: Well, we thought so in July but then in December they were revived. Until they are withdrawn, which they ought to be, then there is always the possibility that something will be done in it without anyone telling us.

KIRBY J: And if it is, you have an immediate remedy and that seems to be the logical and proper remedy that the law provides against abuse of this process.

MR BLEECHMORE: I am not sure, your Honour, that the NCA would agree that what they have done is an abuse of process.

KIRBY J: Well, they may not, but a judge might.

GAUDRON J: What they have done or what they may do, and there is a difference. The tense is important.

MR BLEECHMORE: As I have indicated, I understand what your Honours say about other proceedings, but this is the proceeding that we were faced with and either in Victoria - - -

GAUDRON J: No, this ultimately is the proceeding you commenced to set aside a warrant for arrest.

MR BLEECHMORE: With the greatest respect to your Honour, it was a defence - it has as its nature a defence to the extradition application. It was a defensive step.

GAUDRON J: Yes, but it was a warrant for arrest issued by a Justice of the Peace upon affidavit evidence as to reasonable grounds for belief that a crime had been committed, is that right?

MR BLEECHMORE: Yes, your Honour.

GAUDRON J: Very well. And you have sought to have the warrant set aside. You have not sought to resist extradition proceedings based on the warrant.

MR BLEECHMORE: With respect, we are doing so. If we had stayed in Melbourne, section 83(10), I think it is, says that we can defend the application under that section by showing that the warrant is invalid. So we are acting defensively as a response to the warrant, as a direct response to the warrant, and for the reasons that I have articulated, because it appeared that it was common ground between the legal advisers of the parties at that time that the extent of the attack on the warrant would be limited, that the better view was that a proceeding in the court from which that warrant had issued should be brought.

I have indicated that, in our submission, to commence the fresh proceeding in New South Wales when the first proceeding commenced was for an improper purpose in the sense that any purpose other than to pursue to finality the prosecution is improper. We would say the same thing in relation to the Victorian proceeding, which serves no purpose other than to hold my client within the reach of the terms of the bail which presently governs her liberty. That proceeding in Victoria was commenced on 8 February and the first New South Wales proceeding was commenced on 9 February and, in fact, my instructing solicitor, on the affidavits, was informed even before bail had been granted that the Victorian proceeding would not be followed through but that a proceeding would be commenced in New South Wales.

Now, we do not know why that was done. All we know is it is still there. We surmise that because the NCA wanted to concert its arresting operations and execute search warrants in the presence of all of the accused that this enabled that to happen. Whereas, if a New South Wales warrant had been issued and then taken down to Melbourne, that the arresting officer, a Victorian police officer, would then have to take my client straight to a magistrate, which would have prevented a search of the premises.

Now, we do not know whether that is so or not, but we infer that there is some collateral purpose for the issue of that proceeding which has never been continued and we do not believe that there was a legal analysis made which indicated that the jurisdiction in which the conspiracy was formed was, in fact, New South Wales, not Victoria.

Your Honour, I had meant to say something more about the leave question but your Honour indicated to me that I might be right about that, but what did it matter if the other - all I wanted to say about the leave question was that in this kind of case which does involve the liberty of the subject and which is a final hearing in its nature, Parliament could not have intended that there be a legal requirement and that section 101 of the Act ought to be interpreted in the context of subsection (2)(r). This is the second item in the material provided to the Court.

GAUDRON J: This was a separate proceeding, was it not, this application?

MR BLEECHMORE: Yes, it was. It was certainly a final hearing, a final judgment.

KIRBY J: Not an interlocutory proceeding.

MR BLEECHMORE: Not an interlocutory proceeding. It was common ground that it was a final hearing, but the argument that is put against is that - - -

GAUDRON J: This was in the nature of an administrative proceeding, was it not?

MR BLEECHMORE: Yes, it was a supervisory jurisdiction of the courts. But what we say is that the importance of this case cannot be assessed in monetary terms and, therefore, that a provision as it exists in section 101(2)(r) cannot be interpreted to include all final judgments. The words used are:

a final judgment or order in proceedings . . .

(i) that involves a matter at issue amounting to or of the value of $100,000 or more -

and we submit that, therefore, a final judgment - the words in subparagraph (r) - should be interpreted to mean a judgment in which the magnitude or importance of the case is able to be estimated in monetary terms.

KIRBY J: The criminal proceedings are in the District Court - would be heard in the District Court, not in the Supreme Court, if they were heard in New South Wales.

MR BLEECHMORE: In New South Wales, yes, your Honour.

KIRBY J: And no other subparagraph of section 101(2) is engaged, except (r), is that correct?

MR BLEECHMORE: That is so, your Honour, yes.

KIRBY J: So that you say that paragraph is not engaged because it does not refer to an amount in issue of money sums and it does not refer to a civil right?

MR BLEECHMORE: That is so, your Honour.

KIRBY J: You might be right, but it leads nowhere if you lose on the substance.

MR BLEECHMORE: Yes, I understand that, your Honour. Those are my submissions

GAUDRON J: Yes, thank you, Mr Bleechmore. We need not trouble you, Mr Game.

In this matter the applicant seeks special leave to appeal with a view to having a first instance warrant set aside on the basis that it was obtained in bad faith and that its issue amounts to an abuse of process. The question whether the warrant was obtained in bad faith is essentially a factual issue which was decided against the applicant at first instance. It is thus not an appropriate issue to attract the grant of special leave. The question whether the warrant constitutes an abuse of process is misconceived. The question is whether proceedings pursuant to that warrant be an abuse of process. That question has not yet arisen.

We would indicate that we have doubts as to the holding of the Court of Appeal that leave was required for the appeal to that court. However, having regard to the matters earlier referred to, that question is academic. Accordingly, special leave should be refused.

Mr Game, it is a criminal matter. We would not ordinarily order costs. More particularly in the circumstances when you seem to have brought a lot of this on your head by losing papers and the like.

MR GAME: There were two reasons why the proceedings foundered. One is the papers got lost and the second is that the applicant in this Court was bailed so that she did not have to attend in New South Wales, which meant they did not have a body which meant that the jurisdiction of the court under section 32 of the Justices Act was enlivened. Those were the two reasons why the New South Wales proceedings foundered.

GAUDRON J: Well, whatever the reasons, they do not reflect well on the prosecution service.

MR GAME: Well, I do not know what we could have done about losing the papers or the bail, which were really the two reasons. I do apply for costs, your Honour.

GAUDRON J: As the matter is one that arises out of the administration of the criminal law, there will be no order as to costs.

AT 12.31 PM THE MATTER WAS CONCLUDED