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CLARKSON V DIRECTOR of PUBLIC PROSECUTIONS - [1990] VR 745

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CLARKSON V DIRECTOR of PUBLIC PROSECUTIONS - [1990] VR 745 Page 1 CLARKSON v DIRECTOR OF PUBLIC PROSECUTIONS - [1990] VR 745 SUPREME COURT OF VICTORIA CROCKETT, MURPHY and NATHAN JJ 15 December 1989 Criminal law -- Criminal procedure -- Appeals -- Nature of proceedings in Practice Court -- When appeal from decision of Practice Court lies to Full Court -- Certiorari -- Obligation on prosecutor to make available material which would assist defence case -- Discovery in criminal cases -- Crimes Act 1958 (No 6231), Pt VI -- Supreme Court Act 1986 (No 110), s10, s14 -- Rules of Supreme Court, O.29, O.32. The appellant sought leave to appeal from orders made in the Practice Court dismissing an originating motion seeking judicial review in the nature of certiorari and also striking out an ancillary summons for habeas corpus. The appellant claimed that at the time of his trial in the County Court relevant material which might have led to his acquittal was in the possession or power of the Crown prosecutor, and that despite the appellant's request, it was not produced to him by the prosecutor. The appellant also sought order for discovery. Held, allowing the appeal: (1) The appellant's originating motion seeking judicial review in the nature of certiorari for an order directed to the County Court judge to bring up for quashing convictions and the consequent sentences passed upon him following trial on indictment in the County Court, was a criminal matter or proceeding. R v Fletcher (1876) 2 QBD 43; Ex parte Alice Woodhall (1888) 20 QBD 832; Ex parte Schofield [1891] 2 QB 428; R v Watt; Ex parte Slade [1912] VLR 225; R v Garrett; Ex parte Sharp [1917] 2 KB 99; Willamson v Director of Penal Ser- vices[1959] VLR 205; Bonalumi v Secretary of State [1985] QB 675 and R v Clarkson[1987] VR 962, referred to. (2) In the present case an appeal from the determination of the Practice Court judge dismissing the appellant's originat- ing motion does not lie under Pt VI of the Crimes Act 1958. Accordingly, the appellant is given a right to appeal to the Full Court pursuant to s10(2) of the Supreme Court Act 1986. Boehm v Director of Public Prosecutions [1990] VR 494, followed and applied. R v Kean and Mills [1985] VR 255, referred to. (3) It is arguable that an assumed failure of the prosecution to provide relevant material to the appellant at his trial con- stituted a denial of natural justice and so rendered his trial a nullity, as being in excess of jurisdiction. If these conse- quences were established then certiorari would go to an inferior tribunal, if not to the County Court, in which the con- victions were entered after trial on indictment. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and R v Leyland Justices; Ex parte Hawthorn [1979] QB 283, considered. R v Inhabitants of Seton (1797) 7 Term Rep 372; 101 ER 1027; R v Inhabitants of Pennegoes and Town of Mackynlleith (1822) 1 B. and C.142; 107 ER 53; R (Giant's Causeway and Tramways Company) v Justices of Co An- trim [1895] 2 IR (QB and Ex Div) 603; R (Williams Hastings) v Chairman and Justices of Galway[1906] 2 IR (KB) 499; Ex parte Williams (1934) 51 CLR 545; R v Judge McNab; Ex parte the Acting Attorney-General (unreported, 17 August 1977) and R v Wright and Pope [1980] VR 41, referred to. (4) Similar considerations as apply in the case of the wrongful failure of the prosecutor to call a witness to give evidence apply when it is a question of the disclosure to the defence of documentary material in the possession or power of the Crown prosecutor, which material would tend to assist the defence case. The deliberate withholding of such material could well constitute a miscarriage of justice when viewed against the conduct of the whole trial and so lead to the set- ting aside of the conviction. Page 2 R v Lucas [1973] VR 693; R v Eastwood and Boland [1973] VR 709; Richardson v R (1974) 131 CLR 116; 3 ALR 115; R v Hebaiter [1981] VR 367; Whitehorn v R (1983) 152 CLR 657; 49 ALR 448 and R v Apostilides (1984)154 CLR 563; 53 ALR 445, referred to. (5) Were the proceedings civil, discovery of a general nature but directed to the issue in question might be ordered; but, the proceedings being criminal, the application for discovery must be refused. R v Hamiguchi [1908] QSR 224; R v Associated Northern Collieries (1910) 11 CLR. 738; R v Adams [1965] VR 563; Stewart v Miller [1979] 2 NSWLR 128 and G Breschi and Son Pty Ltd v A F T Ltd [1988] VR 109, referred to: Appeal This was an application for leave to appeal from an order made in the Practice Court granting an application to strike out an originating motion issued by the appellant seeking judicial review in the nature of certiorari and also striking out an ancillary summons for habeas corpus. The facts are stated in the judgment of Murphy J. The applicant in person. J D McArdle for the respondent. Crockett J: Murphy J will deliver the first judgment. Murphy J.: This was an application for leave to appeal from an order made in the Practice Court granting an application to strike out an originating motion issued by the appellant seeking judicial review in the nature of certiorari and also striking out an ancillary summons for habeas corpus, with costs. At the same time before us an application was made under r209 of the Criminal Appeals and Procedures Rules 1988, Ch VI following the refusal by the registrar to grant the appellant's application for leave to appeal out of time from his con- victions before the County Court, recorded following his trial there on indictment in February 1987. This latter matter was really advanced as an alternative to the relief sought by way of appeal from the orders made by the learned judge in the Practice Court dismissing the said motion and summons. A preliminary issue for determination of importance in different ways was raised. Were the proceedings in the Practice Court criminal proceedings? If so: (a) did the appellant have a right to appeal from the order to the Full Court; and (b) did the Practice Court judge have the power to award costs against the appellant; and (c) does the appellant have a right to discovery as sought in the originating motion? It might also be asked whether the order was interlocutory so as to require the leave of the court to appeal, and finally, in any event was there merit in the appeal? The background in which these matters arise is set out in some detail in R v Clarkson [1987] VR 962, at pp 964-7, and I do not intend to repeat them. In the Practice Court, the learned judge took the view that the proceedings were "heard in the civil jurisdiction" but the appellant before us submitted that his Honour was, he thought, "taken on the hop", and in fact it does not appear that a great deal of debate on this issue occurred. His Honour on dismissing the motion awarded costs against the appellant. I deal first with the issue whether the originating motion and the summons for habeas corpus were criminal proceedings. I am satisfied, having considered the authorities, that the appellant's originating motion seeking judicial review in the nature of certiorari (O.56) for an order directed to the County Court judge to bring up for quashing convictions and the consequent sentences passed upon him following trial on indictment in the County Court, was a criminal matter or pro- ceeding. Page 3 The importance of such a conclusion when s42 of the Supreme Court Act 1958 was in force was that no appeal lay to this Full Court from the determination of"Any single Judge sitting in Court" in a criminal matter: see Williamson v Di- rector of Penal Services [1959] VLR 205, at p207. In that case the Full Court, comprising Herring CJ, Gavan Duffy and Adam JJ, held that no appeal lay to the Full Court from a refusal by a judge in chambers of an application for a writ of habeas corpus in a criminal matter. A good deal of attention in the reasons for judgment delivered by Adam J, in which the other members of the court concurred, is directed to the issue whether a decision in chambers differed from a deci- sion in court, but any possible distinction between the two has now been abolished by s4(1) of the Supreme Court Act 1986. Williamson's Case also decides that the determination of the issue whether or not an application for habeas corpus is a criminal matter depends upon "the nature and character of the proceeding in which habeas corpus is sought": see Vis- count Simon LC, Amand v Home Secretary [1943] AC 147, at p156. These answer"the test whether it is or is not a criminal matter": see Williamson's Case, at p206. Adam J continued: " It is difficult to imagine a clearer case of a criminal matter than an application for a writ of habeas corpus to secure the release of a prisoner under sentence." It had already been held in England in earlier cases that s47 of the Judicature Act, referring as it did to "a criminal cause or matter" should be given "the widest possible interpretation": see Lord Esher MR in Ex parte Alice Woodhall (1888) 20 QBD 832, at p835. In that case the Master of the Rolls relied in particular upon R v Fletcher (1876) 2 QBD 43 in which an appeal was made from a decision of the Queen's Bench Division discharging a rule for a certiorari to bring up for the purpose of quashing a summary conviction by justices.
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