Coulter v The Queen

Coulter v The Queen - [1988] HCA 3 - HCA 1987 case summary — Zoe

[16]

First, it was said that the procedure whereby the Full Court determines the matter in private without oral argument denies natural justice to an applicant. But the procedure adopted by the Full Court is that required by sub-r. (5) and authorized by sub-r. (6) of r. 25 and, if those provisions be valid, it is impossible to argue that some other procedure ought to have been followed. It is of the essence of rules relating to natural justice that the whole of the circumstances in the field of inquiry are of importance in determining fairness of procedure and "[t]he nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [2] . The jurisdiction which the Court exercises in determining an application for leave is not a proceeding in the ordinary course of litigation: Collins v. The Queen [3] . It is a preliminary procedure recognized by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention. Oral argument is a valuable aid to adjudication in some cases but an application may be so patently meritorious or unmeritorious that oral argument would be an unnecessary occupation of the court's time. The rule makes provision for an application to be listed for oral argument either ex parte or on notice wherever that course is thought to be desirable or proper. In any event, an applicant is afforded an opportunity of full oral argument before a single judge. A transcript of that argument is placed on the file and is available to the members of the Full Court who, in response to the wish of an applicant, determine the application. In addition, an applicant is given the opportunity to place any further material in writing, including a summary of argument, before the court for its consideration. Sub-rules (5) and (6) do not require or authorize the court to adopt a procedure which is unfair in particular cases. Whether or not one considers the procedures for which the sub-rules provide to be desirable, the sub-rules cannot be held invalid on the ground that they ought to have provided for a fairer procedure. The relevant criterion of validity is not the fairness of the rules but whether they are a reasonable means of attaining the ends of the rule-making power: Williams v. Melbourne Corporation [4] .

[24]

Where a convicted person desires to appeal under this Act to the Full Court or to obtain the leave of that Court to appeal, he shall give notice of appeal, or notice of his application for leave to appeal, in such manner as may be directed by rules of court, within ten days of the date of conviction. Such rules shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires. Any case or argument so presented shall be considered by the Full Court. It is submitted that this section confers on a convicted person not only a right to present his argument in writing if he so desires but equally a right to present oral argument. So construed, s. 357 would deny to the judges power to make a rule which denies the latter right to an applicant. In our opinion, on its proper construction, the section does not confer a right to present oral argument. The purpose of s. 357 is facultative. If the second sentence is read without the phrase "instead of by oral argument", it is clear that Parliament intends that provision be made for a convicted person, if he so desires, to present his case and his argument in writing. Such a provision marks a departure from the normal practice which requires that proceedings take place in open court with the opportunity for parties to be present and to be heard orally, and the phrase "instead of by oral argument" is a mere acknowledgment of normal practice. The phrase is not expressed to be a guarantee of a right to present an oral argument and there is nothing in its text which warrants an implication of such a right. This construction is wholly consistent with later sections in the Act. Section 361 draws a distinction between the hearing of an appeal other than an appeal on a ground involving only a question of law and an application for leave to appeal. In the former, an appellant is entitled to be present on the hearing of his appeal notwithstanding that he is in custody. In the other cases, he is not entitled to be present except where the rules of court so provide or where the Full Court gives him leave to be present. The effect of this provision is that, there being no rule to the contrary, an unrepresented applicant has no right to be present on the hearing of his application for leave. The section does not preclude representation by counsel. Again, there is provision for the Full Court summarily to dismiss an appeal without a full hearing and without calling on any persons to attend the hearing or to appear for the Crown if it considers that the appeal is frivolous or vexatious: s. 365(2).

[33]

The relevant rule-making power is to be found in s. 368 of the Act which, like all other provisions of the Act mentioned in this judgment other than s. 40, is in Pt XI which is headed "Cases Stated and Appeals". That power is, in terms, conferred upon the judges of the Supreme Court to make rules of court "for the purposes of this Part" which rules "may make provision with respect to any matter for which provision is to be made under this Act by rules of court and may regulate generally the practice and procedure under this Part": s. 368(1) and (2). As a matter of ordinary construction, a general rule-making power conferred upon the judges of a court does not authorize the making of a rule which would transform the court's ordinary incidents as a court of justice or subvert its primary function. As Stephen J. pointed out in Russell v. Russell [17] , it is an ordinary incident "of English courts of justice" that curial proceedings should be conducted in public and, quoting Farwell L.J. in Scott v. Scott [18] , "the primary function of [a court] is to administer equal justice to all suitors in open Court". That being so, a general rule-making power such as that conferred upon the judges of the Supreme Court by s. 368 of the Act does not, at least prima facie, authorize the making of a rule having the effect that judicial proceedings are to be heard and determined in private. We have already expressed the view that, for the reasons given above, an application for leave or special leave to appeal should, in this country, be seen as a generally accepted and standard part of ordinary curial procedures to which the ordinary safeguards of the administration of justice are applicable. It follows that, in our view, the general rule-making power conferred by s. 368 of the Act did not, of itself, extend to authorize the making of those provisions of the Criminal Appeal Rules having the effect that an application by a convicted person for leave to appeal in a case such as the present should, regardless of the desires of the applicant, "be considered by the Full Court privately" on the basis of a written summary argument without the applicant or any person other than the judges being entitled to be present. The question arises whether there is any other provision of the Act which expressly or impliedly empowers the making by the judges of rules having such an effect.

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Judgment (37 paragraphs)

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Cases Cited (1)