Reid v Director of Public Prosecutions (Queensland) & Anor [2009] HCATrans 187 (11 August 2009)

Last Updated: 13 August 2009

[2009] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B32 of 2008

B e t w e e n -

ALFRED AARON REID

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)

First Respondent

DIRECTOR OF MENTAL HEALTH

Second Respondent

Application for reinstatement

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 11 AUGUST 2009, AT 10.17 AM

Copyright in the High Court of Australia

MS D.L. KELLIE: If it please the Court, I appear for the applicant in this application for reinstatement. (instructed by Callaghan Lawyers)

MR M.J. COPLEY, SC: If the Court pleases, I appear on behalf of the first respondent. (instructed by Director of Public Prosecutions (Qld))

HER HONOUR: Thank you, Ms Kellie. I have read the material.

MS KELLIE: Do you wish me to formally read that into the record, your Honour.

HER HONOUR: Yes, you should do that.

MS KELLIE: The applicant reads the summons filed on 29 June 2009, the affidavit in support of the reinstatement filed by Jonathon Phillip Ide on 29 June 2009 and the submissions made by the applicant drafted in my instructing solicitor’s office on 7 August 2009.

HER HONOUR: Yes, Mr Copley has some material.

MR COPLEY: Your Honour, I read the affidavit of Dominique Helena Orr filed on 10 August 2009 and the respondent’s summary of argument filed yesterday as well.

HER HONOUR: Thank you. I note that there is a submitting appearance for the second respondent. Ms Kellie, I have been advised by the Deputy Registrar that in this case there were a number of reminders given by the Deputy Registrar of the deemed date of abandonment.

MS KELLIE: That is so, your Honour. Those are in fact reproduced and annexed to the affidavit of a Mr John Ide who was the solicitor with carriage of the file. I cannot point you, your Honour, to anything that would meet an exceptional circumstances argument given those reminders that were provided on, at least I think, four occasions by the Registry.

HER HONOUR: The explanation he offers is that he misunderstood what was necessary before the appeal books could be completed.

MS KELLIE: A misapprehension in terms of what needed to go into the application book as requiring the summary of argument from the respondent which, as a draft notice of appeal was not served on the respondent until the deemed date for abandonment, there was of course no reply. Your Honour, I do not think it can be put as high as contumelious disregard for the directions of the Court. It does seem to be a blunder or mistake.

HER HONOUR: No. What he should have done was to contact the Deputy Registrar who had offered him the assistance of the Court in relation to time limits and spoken to her about what was necessary.

MS KELLIE: That is so, and sought an application for a variation. He did on one occasion, I believe, in December make such a request and obviously the Deputy Registrar of the Court did respond to that but remained firm on the notice of deemed abandonment coming into effect on 2 March 2009. There was never a formal application for variation of that final date made which, of course, would have been open to the solicitor with carriage.

HER HONOUR: Now, it is put against you not that there is no question at all raised, as I understand it it is put rather fairly by the Director that in relation to the consideration of the merits it could be taken into account that the dismissal of his appeal by the Court of Appeal does not prevent him from raising the issue of his state of mind at trial.

MS KELLIE: That is so. However, in my submission that perhaps overlooks the founding rationale for the special leave application and, indeed, the application to the Court of Appeal which is the true role of the assisting psychiatrist under the Mental Health Act. While my client is not precluded, obviously, from still running a mental health argument the greater point is perhaps what is the true role of those assisting psychiatrists.

HER HONOUR: You say that is the point of principle which might give him a grant of special leave.

MS KELLIE: That is the basis to that application, your Honour, yes. It is also the case that while he can still run that argument at subsequent trial, if the assisting psychiatrist had exceeded bounds of the statutory obligations under the Mental Health Act then there is an argument that could be made that Mr Reid has been denied an opportunity to be declared of unsound mind at the time of the offending and is therefore having one of his inherent rights to proceed as such dismissed quite lightly by the fact that he could run the same argument again at trial.

So it is that basis of that subsisting important principle that we say founds this Court’s discretion to indeed grant the application for reinstatement, set a new filing date for the application book and if at that point in time the application book is still not filed, then obviously there would be an immediate application for strike out by the Crown in that regard.

HER HONOUR: Yes. Is there anything further?

MS KELLIE: Nothing further, thank you.

HER HONOUR: Yes, thank you. Mr Copley.

MR COPLEY: Your Honour, in supplementation of my written submissions I simply wish to emphasise the following point that the application for special leave is in the nature really of an interlocutory application in that if this matter was to proceed according to law, it may well be that at any trial the applicant is acquitted for any one of a variety of reasons – identification, intoxication, unsoundness of mind. The only other point that I wish to draw to your Honour’s attention - - -

HER HONOUR: It is probably fair to say, though, as I think Ms Kellie was doing, that on an application for reinstatement the focus is upon the application for special leave itself.

MR COPLEY: Yes, it is, but, your Honour, there is just one other point that I wish to point out and that is that if the application for special leave was granted and there was a full appeal of the matter and the matter was then remitted back to the appropriate court to be dealt with, which would be the Mental Health Court, his Honour Justice Keane held in the judgment that the verdict or the conclusion that the Mental Health Court came to was the only one that it could come to on the available evidence, namely that the matter had to proceed according to law.

There was a specific ground of appeal taken in the Court of Appeal that effectively the Mental Health Court’s verdict or judgment was unreasonable. His Honour found that it was not. It was the only one the court could reach. That is not the subject of any ground of appeal in the draft notice of appeal now.

HER HONOUR: But if the decision of the Court of Appeal was set aside there might be other orders in relation to a rehearing in the Mental Health Tribunal. Would there not be?

MR COPLEY: The only order that it seems possible to make would be that it would go back to the Mental Health Court to be determined further according to law.

HER HONOUR: Which might mean further evidence?

MR COPLEY: There is a possibility, yes, that any party could bring further evidence of course, yes.

HER HONOUR: Yes.

MR COPLEY: Thank you.

HER HONOUR: Thank you, Mr Copley.

The applicant seeks to reinstate his application for special leave. It was deemed abandoned on 2 March 2009 pursuant to rule 41.13.1 by reason of his solicitor’s failure to file and serve application books as required by rule 41.09.8 within six months from the filing of this application for special leave. This default occurred despite a number of reminders given by a Deputy Registrar of that date.

As at 2 March 2009, the applicant’s solicitors had filed a summary of his argument and a draft notice of appeal. The applicant seeks leave to appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. It dismissed his appeal from a decision of the Mental Health Tribunal which found that he was not of unsound mind at the time of the offences in question. The Tribunal relied upon the advices of assisting psychiatrists to that end.

The point the applicant sought to raise in his summary of argument concerned whether those psychiatrists could directly advise upon the question which fell for the Tribunal’s determination. That is said to be a point of general principle founding an application for special leave.

More relevant than any assessment of the appellant’s prospects is the reason for the default. It is not due to any omission on his part. His then solicitor mistakenly believed that it was necessary to have the respondent’s summary of argument before the books could be completed. This is unfortunate and it goes without saying that the solicitor should have spoken to the Registry about the requirements for finalisation of appeal books if he was in any doubt. However, the matter has been explained and there is a point to be raised in the applicant’s application for special leave. In the circumstances I will order that the application for special leave filed on 2 September 2008 be reinstated.

We need to reset some dates, Ms Kellie.

MS KELLIE: Certainly, your Honour.

HER HONOUR: The next step, Mr Copley, is that the first respondent file and serve its summary of argument.

MR COPLEY: Yes, your Honour.

HER HONOUR: By 4.00 pm on 25 August?

MR COPLEY: Yes, your Honour.

HER HONOUR: And then that the applicant file and serve a reply by 4.00 pm on 31 August 2009, Ms Kellie.

MS KELLIE: Thank you.

HER HONOUR: The further orders will be that the applicant file and serve the application books by 4.00 pm on 17 September 2009. The deemed abandonment date for the application will then be 18 September 2009.

MS KELLIE: Thank you, your Honour.

HER HONOUR: Thank you, Mr Copley and Ms Kellie.

AT 10.28 AM THE MATTER WAS ADJOURNED