Beljajev v Director of Public Prosecutions

High Court of Australia|1990-07-13|Before: Brennan J, Marks J, Dawson J

The applicant filed an application for special leave to appeal to this Court on 2 May 1991 and the present application seeks an order that the order of Marks J. be stayed pending the hearing by this Court of the application for special leave to appeal. Alternatively, bail is sought pending a hearing of the application for special leave.

The jurisdiction of this Court to make an order either preserving the status quo pending the hearing of an application for special leave to appeal or to grant bail pending the hearing of such an application has been considered in several cases. In Chamberlain v The Queen [No. 1] [1] , I expressed the opinion that:

the power of this Court to grant bail rests upon the inherent power to preserve from futility the exercise of the Court's jurisdiction to grant special leave to appeal and to allow an appeal thereafter. 1. (1983) 153 C.L.R. 514, at p. 518.

In Federal Commissioner of Taxation v Myer Emporium Ltd. [No. 1] [2] , Dawson J. said, in reference to an application for stay pending the hearing of an appeal:

Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory [3] . Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed [4] . The test which his Honour there expressed is not, I think, significantly different from the test of futility which I had expressed in Chamberlain . 1. (1986) 160 C.L.R. 220, at pp. 222-223. 2. See Wilson v Church [No. 2] (1879), 12 Ch. D. 454, at p. 458; Klinker Knitting Mills Pty. Ltd. v L'Union Fire Accident and General Insurance Co. Ltd. , [1937] V.L.R. 142. 3. See McBride v Sandland [No. 2] (1918), 25 C.L.R. 369.

Chamberlain 's case was a case of an application for bail after conviction and sentence. This case is thus distinguishable. However, in Narain v Director of Public Prosecutions [5] , I refused bail in a case in which the applicant sought a stay of an extradition order, saying that:

If the order of surrender is executed by conveying the applicant to New Zealand, it would be futile to prosecute the application for special leave to appeal. The subject matter of the litigation is the liability of the applicant to be conveyed compulsorily to New Zealand pursuant to the Act, and to preserve that subject matter this court may exercise its inherent jurisdiction to stay the execution of this surrender order and any warrants issued pursuant thereto [6] . And the question there, of course, was whether or not the jurisdiction should be exercised. That case illustrates the necessity to identify the subject matter of the litigation in order to determine whether a refusal of a stay order will render futile the proceedings in this Court and will prevent a successful appellant from being restored substantially to his former position. 1. (1987) 61 A.L.J.R. 317; 71 A.L.R. 248. 2. See Jennings Construction Ltd. v Burgundy Royale Investments Pty. Ltd. [No. 1] (1986), 161 C.L.R. 681, at pp. 682-683.

In the present case, if no order is made, will the applicant's right to seek special leave to appeal and, if granted, to appeal, be rendered futile if the appellant remains in custody in consequence of the order made by Marks J.? I cannot think that it will. It is imperative that the jurisdiction to grant a stay be recognized as extraordinary and that applications seeking to invoke that jurisdiction are not made simply in order to secure the intervention of this Court in the preservation of a status quo.

In Edelsten v Ward [No. 2] [7] , I said that the jurisdiction can be exercised only in extraordinary circumstances and added:

It is as well to emphasize that observation again lest the impression be created that, in the conduct of litigation, the orders of this Court are available to keep matters in statu quo until the litigation is finally resolved. That is not the purpose of the inherent jurisdiction. Something quite exceptional must be shown before that jurisdiction is exercised. This must be so, particularly in the case of interlocutory applications in a criminal jurisdiction. That is a matter to which I referred in Clarkson v Director of Public Prosecutions [8] , where I said: It would be extraordinary for this Court to grant bail to a prisoner awaiting trial in the Supreme Court of Victoria, even if an appeal on an interlocutory matter were pending here. 1. (1988) 63 A.L.J.R. 346. 2. (1985) 60 A.L.J.R. 677 at p. 678; 69 A.L.R. 286, at p. 288; 18 A. Crim. R. 231, at pp. 231-233.

The jurisdiction of this Court is not fitted to the supervision of interlocutory processes of a criminal trial. It is not therefore necessary for me to consider the strength of the application for special leave which is now pending in this Court. All that is necessary for me to determine is whether the applicant's right to seek special leave to appeal and, if granted, to appeal, would be rendered futile if the appellant remains in custody in consequence of the order made by Marks J.

It seems to me that there is one consideration to which I should especially refer and that is the prospect of the applicant preparing for his trial. I am conscious of the importance of the applicant being free to prepare adequately for a trial, lest the trial in the result be unfair. But I cannot think that in the interim between now and the time when the application for special leave will be heard there is likely to be such prejudice to the preparation of the trial that it could not be satisfactorily provided for by some order that might be made by the trial judge.

In those circumstances I think that the appropriate order for me to make at this stage is simply to refuse the application.

As this application is incidental to the application for special leave to appeal, I think the appropriate order to make is that the costs of today's proceedings be reserved to the Court which is considering the application for special leave to appeal and if it be necessary, that Court can then remit to me further consideration of today's costs. Otherwise that Court may, if it sees fit, deal with the costs of today's application as it may be advised.

High Court of Australia Brennan J. Beljajev v Director of Public Prosecutions [1991] HCA 16

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