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[2004] HCA 17
respondent. Summons and application for special leave to appeal dismissed.
Milat wanted to make oral submissions in person or by video link when the High Court considered his special leave application. McHugh J held that the rule allowing applications to be decided on written submissions did not deny fairness. Any separate power to bring a serving prisoner to court would have to be necessary, and the written material in this case was adequate to present the issues. The judgment dismissed the requests for physical attendance and video-link participation; it did not decide whether the proposed appeal should receive special leave.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,110 words · generated 04/10/2026
In Milat v The Queen [2004] HCA 17, McHugh J considered an application by Ivan Milat, an indigent prisoner serving a life sentence, for permission to participate orally in support of a special leave application. He asked first to be brought physically from Goulburn Correctional Centre to the High Court and, alternatively, to appear by video link (paragraph 1).
1 cited instrument linked from this judgment.
The special leave application arose from a decision of the New South Wales Court of Criminal Appeal dismissing Milat’s appeal against convictions for seven murders and one count of detaining for advantage. That decision was delivered on 26 February 1998. Milat filed his special leave application on 24 June 2002, approximately four and a quarter years after the time required by Order 69A r 3 of the High Court Rules (paragraphs 2–3). McHugh J observed that the delay presented a “formidable hurdle” to obtaining special leave, but expressly said it was unnecessary to comment on the proposed application’s merits (paragraph 6).
The proposed appeal concerned trial evidence and directions. Milat alleged errors relating to identification evidence, the Crown’s treatment of its witnesses, alternative cases put to the jury, and the possible relationship between the detaining-for-advantage count and the murder convictions. The Crown disputed those allegations and argued that the impugned evidence was not crucial (paragraphs 4–5). Those competing accounts supplied context for the attendance request; McHugh J did not decide the underlying trial-error questions.
Milat argued that oral argument was important because he had no legal training, assistance or representation and needed to make sure the Court understood his case (paragraph 8). The Court dismissed the summons and application seeking physical attendance or video-link participation (paragraph 37). The reasons address those procedural requests, not the merits or outcome of the pending special leave application.
The judgment separates two questions that Milat’s argument connected: whether the Court could decide a special leave application on written material, and whether it had power to arrange for a serving prisoner to appear orally.
Order 69A r 15(2) was relevant to the first question. It permits the Court to direct that a party’s case be considered on the party’s summary of argument and any reply without oral argument where the party is likely to be unable, or it is likely to be impracticable, for that party to appear personally or through a legal representative (paragraph 7). McHugh J rejected the claim that using this rule would deny procedural fairness. The rule, he said, “facilitates” procedural fairness because it allows a person unable to appear to put their case to the Court in writing (paragraph 9).
That rule did not resolve whether the Court could compel or arrange a prisoner’s attendance. McHugh J distinguished the rule from the practical obstacle identified in the reasons: Milat was imprisoned, and prison authorities apparently would not bring him to court to make oral submissions (paragraph 10). The applicant therefore needed to establish a separate source of power for physical attendance or a video hearing.
McHugh J’s view was cautiously expressed. He said that, “as at present advised”, he did not think the Court had power to order prison authorities to produce a serving prisoner merely because the prisoner wanted to make oral submissions (paragraph 11). He allowed that a power might arise by necessary implication where denying it would thwart the Court’s jurisdiction. If so, it would be confined by the extent of the need, applying the formulation in Board of Fire Commissioners (NSW) v Ardouin (paragraph 12). He rejected the proposition that oral participation must always be available to unrepresented prisoners: written submissions can ordinarily present a special leave case.
For the application before him, McHugh J adopted a threshold stated by Gaudron J in an earlier Eastman application. Leaving aside whether the Court had power, an attendance order should be made only where the applicant cannot be legally represented and “it is clear that the issues raised cannot be adequately dealt with by written submissions” (paragraph 28). Milat’s submissions did not satisfy that standard. They contained detailed legal references and arguments, and he had had opportunities to develop them and respond to the Crown’s summary (paragraphs 31–32). The Court of Criminal Appeal’s reasons were also available as a source for understanding the complaints (paragraph 30).
The video-link request failed for related but distinct reasons. McHugh J noted that video-link hearings were not the Court’s general practice for prisoners in custody. He saw no feature making Milat’s application unique or especially deserving of a privilege unavailable to other prisoners, and no reason to think video-link hearings would improve the administration of the special leave list (paragraph 34). He also discussed the Court’s workload and the limited utility of oral submissions that simply repeat written material (paragraph 35). These administrative observations supported his refusal on the facts; the reasons do not state an absolute rule that video-link participation could never be ordered.
Before this decision, Order 69A r 15(2) already provided a mechanism for considering a special leave application without oral argument in specified circumstances. The applicant’s contention was that using this process in his situation would deny procedural fairness. McHugh J rejected that interpretation: the rule is directed to enabling a written presentation when oral appearance is unavailable or impracticable (paragraphs 7–9).
The reasons also describe earlier practice in the High Court. Until the early 1990s, unrepresented applicants were required to present special leave applications in writing and were not heard orally (paragraph 14). McHugh J contrasted that practice with the Court’s then-current practice of allowing oral argument as of right, and with practices of several overseas appellate courts, which did not grant an automatic right to oral submissions on leave applications (paragraphs 14–18). These comparisons are part of the judgment’s explanation for why oral argument was not necessarily indispensable. They do not establish that the foreign procedures governed the Australian question.
The judgment’s central legal position is deliberately qualified. It does not definitively rule out an implied power to order a prisoner’s attendance. Rather, it says such a power could arise only by necessary implication and only to the extent needed to avoid thwarting the Court’s jurisdiction (paragraphs 11–12). It then applies the stricter practical criterion from Gaudron J’s earlier Eastman statement and finds that the written submissions were sufficient in this case (paragraphs 28–33).
Accordingly, the decision’s immediate effect was to refuse the requested attendance arrangements. The judgment did not amend Order 69A, decide the merits of Milat’s proposed appeal, or declare that all prisoners must be confined to written submissions. Nor does the text establish a broad constitutional right to legal representation or oral argument. McHugh J considered arguments based on Cameron v The Queen, Leeth v The Commonwealth, Dietrich v The Queen and Castlemaine Tooheys, but explained why he did not accept those authorities as establishing the claimed entitlement (paragraphs 19–25).
At paragraph 9, McHugh J states that Order 69A r 15(2) “does not cut down the rules of procedural fairness” and instead “facilitates those rules.” In plain English, a written process can be fair where it gives the applicant a means of presenting their case, even though they cannot address the Court orally.
At paragraph 12, he says an implied power “must be limited by the extent of the need.” This means that even if the Court can make arrangements not expressly provided for in legislation or rules, that authority would extend only as far as necessary to protect the Court’s ability to exercise its jurisdiction.
At paragraph 28, the judgment adopts the criterion that an attendance order should only be made if the applicant cannot be represented and it is clear the issues cannot adequately be dealt with in writing. This is the operational threshold McHugh J used in deciding the application, while leaving the existence and scope of the underlying power qualified.
At paragraph 29, McHugh J describes written submissions as “the primary vehicle” for persuading the Court that a case merits special leave. Oral discussion, on this account, allows the Court to test arguments, clarify points and address gaps in the written exchange; it is not a substitute for the written case or an opportunity to introduce new arguments.
At paragraph 33, he concludes there was “no ground” to order Milat’s physical attendance. At paragraph 36, he reaches the same practical conclusion about a video link. These are conclusions about the material before him, not statements that every future application for oral participation must fail.
The judgment is most directly relevant where a serving prisoner seeks to attend a High Court special leave hearing, or participate by video link, to make oral submissions. Its reasoning focuses on a request made by an unrepresented prisoner whose proposed appellate case had been set out in detailed written material.
The decision indicates that the relevant questions include whether the applicant can be legally represented, whether the issues can adequately be dealt with through written submissions, and whether there is a particular necessity for physical or video-link participation (paragraphs 11–12 and 28–29). The completeness of the written case, the applicant’s opportunity to reply, and the availability of the lower court’s reasons were relevant in Milat’s case (paragraphs 30–32).
The video-link analysis also considered whether the applicant’s circumstances were distinctive and whether providing the facility would serve a practical purpose in administering the Court’s list (paragraph 34). The judgment does not set out a comprehensive list of circumstances that would justify an order. Nor does it decide a case in which written submissions were demonstrably inadequate, an applicant lacked a meaningful opportunity to file them, or oral participation was necessary for some other reason. Those situations therefore cannot be resolved from this judgment alone.
The supplied judgment contains no decisions from courts after 24 February 2004 and gives no account of how later courts treated Milat. It would therefore be unsupported to state that later courts followed, applied, distinguished or confined its reasoning.
The judgment itself refers to earlier authorities. It discusses Cameron v The Queen and does not accept Kirby J’s tentative comments as correctly stating the law (paragraphs 19–27). It explains Dietrich v The Queen by reference to the unanimous decision in New South Wales v Canellis, describing Dietrich as resting on common law powers concerning unfair trials, not a right to public funding of legal representation (paragraph 24). It also cites Collins v The Queen for the proposition that, before leave is granted, the applicant is seeking permission to commence proceedings and has no right to leave (paragraph 26).
For the attendance criterion, McHugh J treated Gaudron J’s statement in an earlier Eastman application as governing for the purposes of this application (paragraph 28). That is part of the reasoning in Milat itself, not evidence of later judicial treatment of Milat. Assessment of subsequent precedential history would require sources beyond the judgment provided here.
The reasons leave the existence and outer limits of an implied power to order the attendance of a serving prisoner unresolved. McHugh J said he did not think such a power existed merely because a prisoner wanted to make oral submissions, but accepted that a power might arise by necessity if denying it would thwart the Court’s jurisdiction (paragraphs 11–12). The judgment does not define every circumstance in which that necessity could be established.
The decision also does not decide what would amount to written submissions being inadequate in a particular case. It finds that Milat’s detailed submissions, opportunities to reply and access to the Court of Criminal Appeal’s reasons made it impossible to say that the issues could not adequately be dealt with in writing (paragraphs 29–32). A case involving materially different written material or procedural circumstances is not answered by that factual assessment.
Nor does the judgment determine whether some other legal or practical circumstance could justify video-link participation. It rejects the request before it because the Court did not generally hear such applications from prisoners, Milat’s case was not shown to be unique, and the arrangement was not shown to improve administration (paragraphs 34–36). It does not formulate a universal rule excluding video links.
Finally, the judgment says nothing about whether Milat’s proposed grounds of appeal had merit. It records the parties’ positions and notes the delay, but expressly avoids deciding the substantive complaints (paragraphs 3–6 and 30–32). This analysis is general legal information, not legal advice. Zoe can make mistakes; before acting on or relying on it, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
McHUGH J
IVAN ROBERT MARKO MILAT APPLICANT
AND
THE QUEEN RESPONDENT
Milat v The Queen
[2004] HCA 17
24 February 2004
S230/2002
ORDER
Summons and application dismissed.
Representation:
No appearance by the applicant
G E Smith for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Milat v The Queen
Practice and procedure – Application for special leave to appeal – Oral submissions – Right to make oral submissions – International practice – Power of Court to order production of prisoner for purpose of making oral submissions in person or by video link – Status of applicant for special leave – Discretionary factors.
Words and phrases – "application for special leave to appeal".
High Court Rules, O 69A rr 3, 15.
McHUGH J. The applicant, an indigent prisoner, filed a summons on 17 December 2003 seeking alternative orders. The first order is that he be physically brought before the Court to conduct his special leave application that has been filed in the Court. The alternative order is that he be permitted to appear via video link using the facilities that are available at Goulburn Correctional Centre, where the applicant is presently in custody serving a life sentence.
The application for special leave is brought in respect of a decision of the Court of Criminal Appeal of New South Wales. That Court dismissed an appeal against convictions in July 1996 on seven counts of murder and one count of detaining for advantage. Hunt CJ at CL had sentenced the applicant to life imprisonment.
The applicant's application for special leave necessarily requires an extension of time within which to file that application. The order of the Court of Criminal Appeal dismissing his appeal was delivered on 26 February 1998. The application for special leave was not filed until 24 June 2002. That was about four and a quarter years later than the time required by O 69A r 3 of the High Court Rules.
The applicant claims that the conduct of his trial miscarried in relation to evidence of identification. He claims that the trial judge permitted the Crown to put a case to the jury that was inconsistent with the testimony of its own witnesses without either cross‑examining those witnesses as hostile or putting to them that their evidence was mistaken. The applicant also claims that the trial judge erred by putting alternative cases to the jury, one of which had not been relied on by the Crown. He argues that these errors affected the evidence on the detaining for advantage count and that the jury may have used the conviction on that count to convict him on the murder counts. Accordingly, he claims there has been a miscarriage of justice and that all of his convictions are bad and should be set aside.
The Crown responds that the particular evidentiary issue about which the applicant complains was not essential to the conviction of the applicant and there was no legal error on the part of the trial judge. The Crown contends that the evidence against the applicant was so strong that counsel for the applicant conceded that a member of the Milat family, or someone closely associated with it, must have committed the murders. The Crown claims that the evidence about which the applicant complains – which related to the presence of a vertically mounted spare wheel on the rear of the applicant's four‑wheel drive – was neither crucial to the Crown case nor the subject of extensive questioning by the Crown. The Crown says that the convictions for murder did not depend on the conviction for detaining for advantage.
It is unnecessary to make any comments about the merits of the application except to say that an application, brought so long out of time, faces a formidable hurdle in obtaining the grant of special leave to appeal.
Order 69A r 15(2) of the High Court Rules provides for the determination of applications for special leave to appeal without oral argument from one or both parties. It provides:
"Where an application is listed for hearing and it appears to the Court or a Justice that a party is likely to be unable, or that it is likely to be impracticable for a party, to appear personally or by a legal representative to present oral argument, the Court may direct that the party's case be considered on the basis of his or her summary of argument and any reply without oral argument from that party."
The applicant claims that, if this Court exercised this power in respect of his application for special leave to appeal, it would deny him procedural fairness. He claims that it is necessary for him to present oral argument in support of the application because he has no legal training, assistance or representation and must personally ensure that the Court has grasped the substance of his application. How he would achieve this is not explained.
The argument of the applicant concerning O 69A r 15(2) and procedural fairness is misconceived. Order 69A r 15(2) of the High Court Rules does not cut down the rules of procedural fairness. On the contrary, it facilitates those rules. It ensures that an applicant who is unable to appear personally or by a legal representative or who will find it impracticable to do so, will be able to have his or her case considered on the papers. An order under that Rule facilitates the rules of procedural fairness by allowing an applicant to put his or her case to the Court even though the applicant is unable to discuss his or her case orally with the Court. It was directed to persons in the position of the applicant and was designed to assist, not hinder, their special leave applications.
It is not an order under O 69A r 15(2) of the High Court Rules that would prevent the applicant from putting oral argument to the Court. It is the fact that he is imprisoned and that apparently the prison authorities will not bring him to the Court to present an oral argument that prevents him discussing his case orally with the Court. To obtain the orders that the applicant seeks in his summons, he must point to a right, absolute or discretionary, that would authorise an order to bring him before the Court or an order that his application be heard by video link. Such a right, if it exists, has nothing to do with O 69A r 15(2).
As at present advised, I do not think this Court has any power to order the Governor or Comptroller or any officer of a prison to bring a prisoner, serving a sentence, before the Court merely because the prisoner wishes to present oral argument to the Court in a special leave application. If the Court has power to make an order bringing a serving prisoner to the Court to present oral argument, it can only arise by necessity when the circumstances are such that to deny the power to do so would thwart the exercise of the jurisdiction of this Court.
The right to bring, and for this Court to hear, a special leave application is given and governed by the Judiciary Act 1903 (Cth). There is nothing in that Act or in the Rules of this Court dealing with special leave applications that expressly authorises an order such as the applicant seeks. Hence, a power to make an order of the kind sought by the applicant can only arise by necessary implication, and because it arises by necessity it "must be limited by the extent of the need": see Board of Fire Commissioners (NSW) v Ardouin. As long as prisoners without legal representation can put their argument by written submissions, it seems impossible to suggest that it is necessary that they should always be entitled to support their application by participating in an oral hearing.
"it would be open to the courts, by their orders, to ensure such arrangements in defence of the utility of their exercise of the judicial power in a just way to all persons invoking that power."
His Honour went on to say:
"Ultimately, in proper cases, such orders might be enforced by requiring the release of a prisoner on bail pending the provision of proper representation before the appellate court."
His Honour appears to have thought that the power to make these orders might have a constitutional foundation such as "the implied constitutional right to due process of law"4.
Kirby J cited passages in the judgments of Deane and Toohey JJ and Gaudron J in this Court in Leeth v The Commonwealth5 in support of this proposition. His Honour also thought that Dietrich v The Queen6 was based on this wide foundation. However, Kirby J was one only of five Justices who decided Cameron.
His Honour also referred to Castlemaine Tooheys Limited v South Australia7 to support a proposition that prisoners on appeal are entitled to equal justice before the law and that they should not be confined to written submissions on appeal. None of the other Justices in Cameron expressed any concern in respect of the position of indigent prisoners on special leave applications. Nor did any of the other four Justices suggest that there was any constitutional right to be legally represented.
If I understand the remarks of Kirby J in Cameron correctly, they are based on this proposition: Courts exercising judicial power have power to stay an indigent prisoner's application on the ground that it would be unfair to require him or her to put a case on paper when other applicants can present their cases through legal representatives. Until legal aid is forthcoming, the Court could order the release of the prisoner on bail. It is not clear from his Honour's remarks what would happen if the Crown refused to provide legal aid. Presumably, the prisoner would remain on bail indefinitely.
It is apparent from what I have said that I find it difficult to accept his Honour's remarks in Cameron as correctly stating the law. Insofar as his Honour refers to passages in the judgments of Deane and Toohey JJ and Gaudron J in Leeth, they were dissenting judgments. Insofar as his Honour refers, by way of comparison, to passages in the judgments of the majority Justices in that case, they deny rather than accept the proposition for which Kirby J contends in Cameron.
Nor do I find it easy to reconcile his Honour's remarks concerning an "implied constitutional right to due process of law" with the unanimous decision of this Court in New South Wales v Canellis8. That decision made it plain that the decision of this Court in Dietrich, to which Kirby J referred, was not based on any right to public funding of legal representation. It was based on the common law power of a court to set aside a conviction that was unfairly obtained by reason of lack of legal representation or to stay a trial that might result in an unfair conviction because of lack of legal representation. To stay an application for leave to appeal or an appeal – which are statutory rights – after a conviction is to enter a different area of legal discourse. As at present advised, I can see nothing in the Constitution or the common law that would sanction it.
"until the grant of leave or special leave, there are no proceedings inter partes before the Court. This is so even in a case in which the application for leave or special leave is opposed. ... When the motion is moved, the applicant for such leave or special leave is no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court. ... There is no right to leave or special leave."
In Eastman v Director of Public Prosecutions (ACT)12, I pointed out, consistently with this passage in Collins, that before the grant of leave there is no matter engaging the Court's jurisdiction.
Accordingly, with great respect, I find it difficult to accept the views of Kirby J in Cameron. Given his Honour's views, for a time I considered whether I should adjourn this application to a Full Court to be heard by all Justices of the Court, but a close reading of his Honour's remarks suggests that they were tentative. This is clear from his Honour's statement that13 "if Dietrich rests ... on a broader, and possibly a constitutional foundation ... improved arrangement for the presentation of applications by indigent prisoners in custody may be required". Moreover, his Honour's judgment is principally directed to the provision of legal representation for indigent prisoners, not bringing them before the Court to participate in oral discussion of their cases. The whole discussion of his Honour in Cameron is under the heading "Legal representation of prisoners".
I know of no other remarks by a Justice of this Court that might support the existence of the power that the applicant asks the Court to exercise. In another application by Mr Eastman14, Gaudron J expressed views about the Court's power in a case like the present that might go beyond my present view of the power, although I doubt that her Honour intended to do so. For the purpose of this application, however, I will treat her Honour's statement as the governing law and apply what her Honour said:
"Leaving aside the question whether the Court has power to order that Mr Eastman be brought to Canberra for the hearing of his special leave application, such an order, in my view, should only be made if an applicant cannot be legally represented and it is clear that the issues raised cannot be adequately dealt with by written submissions."
Given the experience of ultimate appellate courts throughout the world, it seems virtually impossible to conclude that the issues in a special leave application cannot adequately be dealt with by written submissions. After all, the United States Supreme Court never hears oral argument in support of their equivalent leave jurisdiction, and, as a matter of general practice, neither does the Supreme Court of Canada. Until the early 1990s, this Court also dealt with applications for special leave by unrepresented persons on the papers.
In any event, on the material before me, it is impossible to say that the issues in this special leave application cannot be adequately dealt with by written submissions. It needs to be emphasised that, in all special leave applications, the written submissions are the primary vehicle for persuading the Court that there is a point worthy of a special leave grant. The 20 minutes allotted for oral discussion are not a substitute or supplement for the written argument. The principal function of the oral hearing is to enable the Justices to test the arguments of the parties by a Socratic dialogue, to ensure the parties deal with the key points of each other's case where their written submissions do not do so and to enable the parties to emphasise particular points in the written submissions if they wish. Oral argument is not granted to enable a party to introduce new arguments.
After reading the judgment of the Court of Criminal Appeal, it is clear enough that the applicant seeks to agitate matters previously determined against him in that appeal. While this is the usual course, it emphasises that this Court has at its disposal resources in addition to the written submissions of an applicant for understanding the nature of an applicant's complaint including this particular applicant's complaints about the conduct of the trial.
When those complaints were made as part of the appeal to the Court of Criminal Appeal, the applicant apparently had the benefit of legal assistance in producing the written submissions. He has had more than one and a half years in which to develop the grounds for special leave that were filed as long ago as June 2002. He has had since 5 September 2002 to reply to the respondent's summary of argument. That summary essentially relies on the judgment of the Court of Criminal Appeal delivered in 1998. The applicant availed himself of the opportunity to answer the respondent's submissions by filing a supplementary summary of argument in January 2003.
The applicant's written submissions in this Court contain copious references to legal cases and passages in the judgments in those cases as well as detailed arguments in support of his application. If his written submissions were written for or copied by him, it is unlikely that orally he could improve on them. If he wrote them without substantial assistance, it is not easy to accept that he has left out matters that he would put before the Court orally. Certainly, it is impossible to say in the words of Justice Gaudron that "the issues raised cannot be adequately dealt with by written submissions". Whether or not his written submissions have any merit is for the Full Court hearing the application to decide, but I have no trouble, and I cannot see how the Justices hearing the application will have any trouble, understanding the claims of the applicant.
Accordingly, there is no ground for making an order that the applicant be brought to this Court to make oral submissions in support of his appeal.
(1961) 109 CLR 105 at 118. ↩
(2002) 209 CLR 339 at 369-370 [96]-[98]. ↩
(2002) 209 CLR 339 at 370 [97]. ↩
(2002) 209 CLR 339 at 370 [103]. ↩
(1992) 174 CLR 455. ↩
(1992) 177 CLR 292. ↩
(1990) 169 CLR 436. ↩
(1994) 181 CLR 309. ↩
(1990) 169 CLR 436 at 480. ↩
(1991) 173 CLR 194. ↩
(1975) 133 CLR 120 at 122-123. ↩
Unreported, High Court of Australia, 4 September 2002. ↩
(2002) 209 CLR 339 at 370 [97]. ↩
Eastman v Director of Public Prosecutions of the Australian Capital Territory, unreported, High Court of Australia, 28 October 2002. ↩
Milat
The Queen
(1961) 109 CLR 105
(2002) 209 CLR 339
(1992) 174 CLR 455
(1992) 177 CLR 292
(1990) 169 CLR 436
(1994) 181 CLR 309
(1991) 173 CLR 194
(1975) 133 CLR 120
(2004) 205 ALR 338
(2004) 78 ALJR 672
Summons and application for special leave to appeal dismissed.
The power that the applicant seeks to invoke is not comparable to the Court's power to stay a sentence pending the hearing of a special leave application. That power is exercised, and in my view can only be exercised, when it is necessary to prevent the Court's appellate jurisdiction being rendered futile or impracticable. It is a power whose occasional exercise is necessary to preserve the effectiveness of the Court's authority to grant special leave and determine appeals. It is far from obvious – indeed, it is absurd to suggest – that the Court's special leave jurisdiction would be rendered futile or impracticable unless a serving prisoner who is an applicant for special leave to appeal is always able to participate in an oral discussion of his or her case for the 20‑minute period given in respect of that application.
In that respect, it can be noted that until the early 1990s the Rules of this Court required all persons who were without legal representation to present their applications for special leave in writing. They were not heard orally. Moreover, this Court is one of the few ultimate appellate courts in the world that permit oral argument, as of right, in support of an application for leave to appeal.
The House of Lords, the Scottish High Court of Justiciary, the Supreme Court of Ireland, the Supreme Court of the United States, the Supreme Court of Japan, the Federal Constitutional Court of Germany and the Court of Appeal of New Zealand do not give any right, as of course, to present oral argument to support a leave application. In those Courts, it is either the usual or only course to deal with applications for leave to appeal without oral submissions from any party. Where oral argument or discussion is permitted, it is usually of the Court's own motion on its assessment of the need for oral argument.
The rules of the Supreme Court of Canada also restrict oral argument. They give a right to request an oral hearing in a criminal case only where the court below has set aside an acquittal and ordered a new trial of the charge.
The Supreme Court of India goes further than other courts. In India, the whole of the appellate jurisdiction excludes litigants who are without legal representation, although the Rules of Court contain extensive provisions for the appointment of advocates‑on‑record for those unrepresented, particularly for applicants in custody where appointment of representation is compulsory.
The European Court of Justice – a court dealing extensively with human rights issues – requires a litigant to be represented to initiate and conduct any kind of proceeding in that Court.
Nor is there any express power in the Constitution, in my opinion, to order the prison authorities to bring the applicant before the Court to present oral argument in support of his application. The applicant relies on the comments of Kirby J in Cameron v The Queen2 to support his claim that the Court should order that he be brought to the Court. In that case, Kirby J expressed the view that, in the case of indigent prisoners denied legal aid3:
Nor does the joint judgment of Gaudron J and myself in Castlemaine Tooheys9 give any support for the proposition for which his Honour cites it. That passage was concerned with discrimination in a protectionist sense for the purpose of s 92 of the Constitution. It had nothing to do with equality of representation in appeals.
In Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth10, this Court unanimously upheld the legality of the special leave process, inherent in which is the absence of a right of appeal to the High Court. The contingent nature of an application for special leave to appeal had previously been discussed by Barwick CJ, Stephen, Mason and Jacobs JJ in Collins v The Queen11 where their Honours said:
Nor is there a case for ordering a presentation by video link of the applicant's special leave application. It is not the general practice of this Court to hear applications by video link from prisoners in custody. If the Court heard the applicant's special leave application by video link, it would be difficult to refuse any prisoner the same privilege. There is nothing that indicates that the present applicant's application is unique or so special that he should be given a privilege denied to other prisoners. Nor is there any reason to believe that the administration of this Court's ever‑lengthening special leave list would be improved by hearing applications by video link from prison by applicants who are without legal representation. In my experience, applications by such applicants are usually best presented by their written submissions rather than oral submissions.
Many unrepresented applicants inferentially acknowledge this point by seeking to read aloud to the Court written material that merely repeats the substance of the written submissions that they have already filed. Given the ever‑increasing workload of the Court, the efficient administration of the Court's business requires that its time not be wasted by oral submissions that do no more than repeat what has already been written. Experience also teaches that the most important part of the oral discussion – the testing of the arguments by a Socratic dialogue – is rarely effective in the case of applicants who are without legal representation. That is because they generally lack the experience and legal knowledge to respond effectively to the Justices' questions. Moreover, given the practices of other ultimate appellate courts throughout the world, the efficiency of this Court's business would appear to be better served by cutting down rather than extending the opportunities for oral discussion.
Accordingly, there is no ground for ordering a video link to be set up to hear the applicant's special leave application.
The order of the Court is that the summons and application be dismissed.