Masoud v The Queen

REASONS FOR JUDGMENT MILES J: 1 In these applications each applicant has filed a notice of motion seeking an order in identical terms, namely: "That the Appellant is to remain at Belconnen Remand Centre and not be moved interstate pending the hearing of his appeal in the Federal Court." 2 The applications were heard separately but it is appropriate to hand down a single judgment in both since they raise the same issues. There is a further notice of motion filed by Danny Masoud which I will refer to later. 3 The power to make the orders sought, so it is submitted, is found in o 52 r 40(1)(b). Rule 40 provides as follows:

"40(1) In the case of an appeal against conviction or sentence where a prisoner is in lawful custody, the Court or a Judge may, at the request of the party or on its, his or her own initiative, make: (a) an order requiring the production of the prisoner; and (b) an order, as the Court or Judge considers appropriate, in relation to the continuing custody of the prisoner." 4 The power under r 40(1)(b) is a power to make an order in relation to the continuing custody. It is to be distinguished from the power to grant bail to an appellant pending appeal under o 52 r 35(3). There does not appear to be any express power in the Federal Court to revoke bail pending an appeal. It is necessary to say something about the backgrounds to the applications. 5 Each applicant was found guilty, respectively, by a jury after trial in the Supreme Court of the Australian Capital Territory and has filed a notice of appeal against "the whole of the judgment" of the trial judge. 6 In the case of Tran, he was found guilty on 1 March 2000 on one count of murder and on one count of intentional wounding. The trial judge, Higgins J, does not appear to have expressly recorded a conviction, but in response to a question from the appellant whether the verdict was "a judgment of the Court", his Honour responded in the affirmative. His Honour also said that he would "direct a pre-sentence report and the sentencing adjourned". 7 The applicant was remanded in custody for sentence. I am told that he has since been further remanded for sentence on 12 May. It appears that the proceedings have progressed to the stage where the applicant is to be regarded as having been convicted: Jovanovic v The Queen (1999) 165 ALR 6; Griffith v The Queen (1977) 137 CLR 293. 8 On 17 February 2000 the applicant Danny Masoud was found guilty on one count of being concerned in the possession of a traffickable quantity of heroin by other persons for the purpose of sale or supply. On 3 March 2000 the trial judge, Crispin J, expressly recorded a conviction and made other orders, including an order that sentencing be adjourned to a date to be fixed. There is no question that in the case of the applicant Danny Masoud, the proceedings in the Supreme Court have proceeded to the stage where the applicant is to be regarded as having been convicted. 9 The notices of appeal are consistent with an intention to appeal against convictions and that is how the hearing before me was conducted. The notice of appeal of Viet Dung Tran is dated 2 March 2000 and the notice of appeal of Danny Masoud is dated 6 March 2000. Tran's notice of appeal appears to be based on the introduction of prejudicial evidence by his own counsel. Masoud's notice of appeal complains of prejudicial television coverage during the trial. 10 There is considerable doubt about the effectiveness of the notices of appeal and about the competency of any appeal which the notices of appeal purport to commence. Section 24(1)(b) of the Federal Court of Australia Act 1976 gives the Federal Court jurisdiction to hear and determine "appeals from judgments of the Supreme Court of a Territory". 11 "Judgment" is defined by s 4 to mean "a judgment, decree or order, whether final or interlocutory, or a sentence". There is strong authority for the proposition that, following a jury verdict of guilty in a criminal trial, the judgment of the court is not completed until sentence has been passed: Cobiac v Liddy (1969) 119 CLR 257 at 270-273 per Windeyer J. There are in addition powerful reasons of policy why, except in most unusual circumstances, an appeal against conviction, even if available, should not proceed without sentence having been passed: see R v de Marchi (1983) 1 VR 619. There are also powerful policy reasons for sentencing to be passed promptly after conviction. 12 I was informed by the Director of Public Prosecutions (ACT) during the course of the hearing of the present applications that consideration has been given to an application to have the notices of appeal struck out on the ground that any appeal consequent upon them would be incompetent. Such an application would have to be in the Full Court as it would be a proceeding in the appellate jurisdiction, but not a proceeding which is authorised by the Federal Court Act or Rules to be determined by "the Court or a Judge". However, the Director has not taken the step of making the application at this stage, since it is likely that sentencing will have taken place in the Supreme Court before any strike out application could be heard by a Full Court. Once sentenced, either applicant would, unarguably, be at liberty to invoke the appellate jurisdiction of the Court pursuant to s 25, and the question of the validity of the present notices of appeal would become, as the Director put it, "moot". I shall return to the competency issue. 13 The hearing before me proceeded on the scope of o 52 r 40 and the merits of the respective applications. Mr Harris, who appeared for Danny Masoud pursuant to a pro bono referral under o 80, and for whose assistance the Court is grateful, submitted that o 52 r 40 is wide enough in its terms to permit an order in the nature of that sought by the applicants. The Director submitted that whilst on a literal construction the rule might have the wide operation contended for, nevertheless the power to interfere in the functioning of the custodial institutions of the Territory should not be exercised lightly, and, indeed, should be restricted to making orders only for the purpose of protecting the processes of the Federal Court. 14 It is to be remembered that both applicants are in custody as a result of the decision of the lawfully constituted tribunal of the Territory. The laws of the Territory as to their continuing custody deserve respect, as does the lawful functioning of the institutions of the Territory that are charged with the responsibility of implementing those laws. In my view, it is not the function of this Court under o 52 r 40 to interfere in the processes of those institutions except so far as may be necessary for the administration of justice in or by this Court. Thus if it were shown that an appeal to this Court from a judgment of a Territory court were to be frustrated or, in a real sense, impeded by the conditions in which a party to the appeal was held in custody, then it may well be that an order as to the custody of that party might be made so that the source of frustration or the impediment might be removed. In other words, o 52 r 40 might be called in aid to ensure that what is sometimes called "due process" is observed. 15 However, the evidence presented on behalf of both applicants falls well short of showing any real risk of the denial of due process to either applicants or any threat to the administration of justice. It may well be within the judicial knowledge of this Court that conditions at the Belconnen Remand Centre are crowded and that from time to time persons in custody there may be removed in order to be held in less crowded conditions elsewhere, either in another remand centre in the Territory, or in a prison in New South Wales such as Goulburn Gaol. How likely that might be in the case of either of the two applicants is unknown. Furthermore, there is nothing to show that conditions in places of custody other than the Belconnen Remand Centre are such that the applicants, if held in such another place, would be prejudiced in preparing for the hearing of their appeals. At this stage neither applicant is legally represented for the purposes of the appeal, except to the extent that in the case of Danny Masoud a referral under o 80 has been made. It appears that Viet Dung Tran still has prospects of assistance from the Legal Aid Office of the Territory but there is a dispute about whether the terms of legal assistance are acceptable to him. There will of course be difficulties if the lawyers and the clients are separated by substantial distances, but again the risk of that happening has not been demonstrated. In any event the geographical imperatives of living in Australia are sometimes unavoidable. Should either applicant be removed from the Belconnen Remand Centre pending appeal, an order for return to the Belconnen Remand Centre during a period immediately before the hearing of the appeal may be justified, for instance, in the sort of circumstances contemplated in Eastman v The Queen (1997) 72 FCR 190 (where the order was nevertheless refused, but on grounds which are no longer applicable). 16 In the application of Danny Masoud there is another factor. The applicant gave evidence, uncontradicted, that he is facing further charges in New South Wales which are before the District Court at Campbelltown. He fears that, if he is removed to New South Wales pending his appeal, the authorities in that State will keep him there to be dealt with on those outstanding charges and will not return him to the Territory for the purposes of his appeal. The Director was unable to confirm or deny any ground for such fears. However, having regard to the constitutional duties of courts and authorities throughout Australia to give full faith and credit to the laws of other States and Territories and to give effect therefore to the processes of the courts in other States and Territories, and having regard also to the facilitating provisions of the Service and Execution of Process Act 1992 (Cth), I am unconvinced that such fears are well grounded. 17 I return to the matter of competency. The Director drew attention to but did not wish to argue the possibility that, the competency of the appeal being in question, there is no jurisdiction in a single Judge to entertain the present applications and the only course is for them to be referred to a Full Court, whether under o 52 r 41 or otherwise. It is to be observed that although o 52 r 40 is couched in terms of "an appeal against conviction or sentence", it cannot extend the operation of s 24(1)(b) which confines the jurisdiction to "appeals from judgments of the Supreme Court of a Territory". If it is true that there is yet no judgment in respect of either applicant from which an appeal may be brought, then the proper way of dealing with the notices of motion would be not to decide the issues raised, as I have done, but to dismiss them or to strike them out for want of competency. Further, only the Full Court is empowered to decide the issue of competency of an appeal, and there is ground for considering that the question having been acknowledged (if not having been raised as an issue) a single judge has no power to proceed either to determine the issue of competency or to determine the notices of motion on their merits: see Tydeman v Deputy Registrar, Child Support Agency [1999] FCA 936, Re Gillies Contracting Pty Ltd [1999] FCA 1289. 18 In some respects it would be convenient for a Judge placed in this position, as I am, to refer all questions to a Full Court under o 52 r 41. However, it seems to me that viewing o 52 as a whole, where several powers are conferred on "the Court or a Judge" in the appellate jurisdiction pending the hearing of an appeal, it is not intended that a Judge called upon to exercise one or more of those powers is obliged to refrain from doing so merely because a question of the competency of the appeal can be seen. Of course no court is authorised to exercise a jurisdiction which it lacks, simply because the parties take no objection to that exercise, or even when the parties positively desire it: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 43. 19 However, where possible lack of competency is no more than part of the background to a proceeding pending an appeal, there is no rule, as I understand it, that the question of competency must be determined conclusively before the proceeding may be determined. Furthermore, it is not quite clear to me that questions of competency of an appeal and questions of jurisdiction are necessarily co-extensive. 20 There is a further application by way of notice of motion filed by Danny Masoud on 30 March 2000 in which an order is sought that the applicant "be allowed to have Internet Access, Law Books and Faxing facilities in the Belconnen Remand Centre". It is obvious that the reasons already given for refusing the application to be kept at the Belconnen Remand Centre apply all the more strongly to the later application. In any event, as already indicated, a referral under o 80 for legal representation on the appeal has been made. 21 In the circumstances the only orders that I make are that the notices of motion dated 6 March and 30 March 2000 and filed in the appeal of Danny Masoud be dismissed and that the notice of motion dated 6 March 2000 and filed in the appeal of Viet Dung Tran be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles