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[2004] HCA 21
respondent. Notice of motion dismissed. Application for special leave to appeal refused.
The High Court refused Muir's request to be brought from prison to make oral submissions and decided his special leave application using written submissions. The majority said the legal provisions he relied on did not give the Court power to order his production. It did not decide whether some other source of power could do so. The majority also considered oral argument unnecessary for the particular sentencing issue Muir raised and dismissed the motion as futile. It then refused special leave because it saw no sufficient doubt in the ACT Court of Appeal's decision. Kirby J dissented on the motion, emphasising equality of access to oral argument and proposing that the power question be considered by a Full Court.
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David John Muir was in custody at Goulburn Correctional Centre. He had applied to the High Court for special leave to appeal against orders of the ACT Court of Appeal dismissing his appeal concerning sentences imposed for federal offences. The sentence was described by Kirby J as a total of seven years and six months, commencing on 5 June 2001 ([15]). Muir wanted to make oral submissions in support of his application. He said prison authorities would not bring him to court without an order of the Court ([1]).
McHugh J had directed under O 69A r 15 of the High Court Rules that the special leave application be determined on the papers ([2]). Muir then filed a notice of motion asking the Court to order his production from prison or, alternatively, to adjourn the special leave application. He had also issued notices under s 78B of the Judiciary Act 1903 (Cth), which, as the majority noted, concerned the special leave application rather than the request for production ([4]).
The motion was directed to the Commonwealth Director of Public Prosecutions, rather than to Muir's gaoler, the person most immediately affected by an order for production. The majority said service was late. It considered that an adjournment would be futile and could cause unnecessary expense and displace another hearing ([3]).
McHugh and Hayne JJ dismissed the motion. They then determined the special leave application on the written submissions and refused special leave, stating that the ACT Court of Appeal's decision was “not attended by doubt” ([9]-[11]). Kirby J agreed with the refusal of special leave, but made clear that this concurrence was based on the application having to be decided without oral submissions by or for Muir ([30]). He dissented from the majority's approach to the motion.
The case therefore had two distinct aspects. The first was procedural: whether Muir could be brought from custody to address the Court. The second was the special leave application itself, including a proposed point about s 16G of the Crimes Act 1914 (Cth). The High Court did not decide the substantive sentencing appeal. Special leave was refused, so there was no appeal on the merits before the Court.
The majority first examined the sources of power Muir relied on. Section 78 of the Judiciary Act provides for parties in federal jurisdiction to appear personally or through permitted barristers or solicitors. Relying on Collins v The Queen, the majority said that s 78 did not apply to an application for special leave. Such an application was “no more than an application for leave to commence a proceeding” in the High Court, and an applicant was not a party for the section's purposes ([6]). The majority also referred to Milat v The Queen as not requiring or permitting a different answer ([6]).
The majority next considered O 55 rr 1 and 39 of the High Court Rules. It said those rules related to proceedings for relief under s 75(v) of the Constitution, or like relief. They did not address the different circumstances of an application for leave to commence a proceeding in the Court's appellate jurisdiction ([7]). The majority therefore concluded that neither s 78 nor the specified rules supplied the power Muir claimed.
Importantly, the majority did not decide that the Court could never have power to order a prisoner's production. It said that Muir had identified no other source of power, but added that even if some other source could be identified, there was no occasion to exercise it in this case ([7]). This limits the majority's holding: its conclusion on power was confined to the legal sources advanced and the circumstances before it.
The majority then considered whether oral submissions would assist on the proposed sentencing point. Muir's proposed argument was that the sentencing judge had not taken account of s 16G of the Crimes Act when fixing sentence ([8]). The majority characterised the question as straightforward: either account had been taken or it had not. It considered the point clear and not capable of development through oral submissions. It acknowledged that oral argument can assist in some special leave applications, but said this would very rarely be so where the applicant was unrepresented ([8]).
The majority also treated the requested adjournment as futile. The point of allowing more time, as it understood Muir's submissions, was to give Attorneys-General time to consider s 78B notices. It noted that those notices related to the special leave application rather than the production motion ([4]). Taking account of the late service and the practical consequences of adjourning, the majority dismissed the motion ([3], [9]).
Kirby J's dissent focused on a different view of the role of oral advocacy and equality in court access. He considered it arguable that the Court had incidental power arising from its constitutional appellate function to order a prisoner's production ([13]). He reasoned that special leave was, in substance, often a prerequisite to invoking that appellate function, and that an applicant needed a genuine opportunity to persuade the Court ([14]).
Kirby J also disputed the majority's assessment that oral submissions could not assist. He referred to his experience of prisoners making submissions and described a prior special leave hearing in which an unrepresented prisoner, Cameron, persuaded the Court to grant special leave ([20]-[21]). He considered the s 16G issue capable of oral elaboration, noting the respondent's arguments that the section had been applied and had since been repealed, and Muir's contest of those points ([22]). These views did not form the Court's holding.
The decision addressed a specific procedural question in the context of a special leave application. The majority applied the existing interpretation of s 78 from Collins: an application for special leave is an application for leave to commence a proceeding, and the applicant is not a party for that provision ([6]). It also confined the relevance of O 55 rr 1 and 39 to the kinds of proceedings those rules addressed ([7]).
The judgment did not establish a general rule that prisoners can never be brought to the High Court to make oral submissions. The majority expressly left open whether another source of power could be identified ([7]). Its decision was that the sources relied on by Muir did not provide that power, and that there was no occasion to order production even on the assumption that another source might exist.
Nor did the Court decide a general rule that special leave applications should always be decided on the papers. The majority said written submissions were the primary vehicle and acknowledged that oral argument may assist in some cases ([8]). Its conclusion was case-specific: it considered the proposed s 16G question sufficiently clear that oral argument would not assist.
Kirby J called for the power question to be resolved, preferably sooner, and proposed that it be referred to a Full Court after an adjournment ([12], [29]). His reasons identify an unresolved question, but his proposed answer was not adopted by the majority. The judgment therefore records disagreement about the constitutional and procedural foundations of a power to secure a prisoner's attendance, without finally determining that question.
The supplied judgment text contains no account of later decisions applying or rejecting the reasoning in Muir. It is therefore not possible, from this source alone, to state how later courts have treated it. The safest description is that the majority's expressed conclusions concerned s 78, the specified High Court Rules, and the utility of oral argument in this particular application. Kirby J's broader equality analysis remains his dissenting view in this judgment.
At [6], the majority said: “An application for special leave is no more than an application for leave to commence a proceeding in the Court.” In plain English, the Court treated the special leave stage as a request for permission to begin an appeal, not as the appeal itself. That distinction mattered because s 78 refers to parties appearing in federal jurisdiction, and the majority held that a special leave applicant was not yet a party for that section.
At [7], the majority said O 55 rr 1 and 39 were “not rules directed to the powers of the Court” in the circumstances of an appellate special leave application. Put simply, the cited rules addressed a different kind of proceeding and could not be used as the legal foundation for the production order Muir sought.
At [8], the majority described written submissions as “the primary vehicle” for persuading the Court to grant special leave. This did not mean oral submissions could never matter. The majority expressly accepted that oral argument may assist in some cases. Its conclusion was that it would not help with the particular question it understood Muir to raise: whether the sentencing judge had taken account of s 16G.
Kirby J's statement at [25] that prisoners “have not lost their human dignity or their right to equality before the law” expresses the central value underpinning his dissent. He viewed the difference between custodial practices in New South Wales and other jurisdictions as producing unequal access to oral argument ([24]-[28]). That was not a conclusion accepted by the majority in its disposition of the motion.
At [29], Kirby J proposed an adjournment and a reference to a Full Court to consider whether the Court could order a prisoner to be brought to court or another secure place. This passage makes clear that, in his view, the power issue warranted separate consideration and appropriate participation by those who could assist the Court. The majority did not adopt that proposed procedure.
The decision is most directly relevant where a person in custody applies for special leave to appeal in the High Court, seeks to make oral submissions personally, and relies on s 78 of the Judiciary Act or O 55 rr 1 and 39 as authority for an order requiring production. In that situation, the majority's reasoning is that those particular provisions do not provide the claimed power ([5]-[7]).
The case is also relevant where a proposed special leave ground is presented in written submissions and the question is whether oral argument would assist. Muir shows that the majority may assess the character of the point and conclude that oral argument would not assist if the issue is clear and, in its view, not capable of useful development ([8]). It does not establish that oral argument is unnecessary in every such application.
The decision also matters where an applicant seeks an adjournment to allow a procedural step to occur. The majority considered the purpose of the requested delay, the relationship between the notices and the different parts of the proceeding, service, expense and the effect on another scheduled hearing ([3]-[4]). Its reasoning indicates the relevance of practical consequences, but it does not state a comprehensive test for adjournments.
The judgment may also be relevant to questions about unequal practices affecting prisoners in different jurisdictions. However, that part of the reasoning is Kirby J's dissent. A researcher relying on the decision should distinguish his argument for equality and a Full Court referral from the majority's actual orders and holdings ([24]-[29]).
Finally, the case concerns a special leave application, not an appeal in which leave has already been granted. The majority's account of the procedural status of a special leave applicant was central to its treatment of s 78 ([6]). The judgment should not be read as resolving the rights or procedural position of a party at a later stage of an appeal.
The judgment supplied here does not identify later cases that applied, distinguished, followed or rejected Muir. It records earlier authorities considered in reaching the decision, including Collins v The Queen and Milat v The Queen on s 78, and cases discussed in Kirby J's dissent on constitutional power, oral submissions, equality and human rights ([6]-[7], [13]-[14], [20]-[29]).
Accordingly, no claim about subsequent treatment can be grounded in this judgment alone. A later-treatment analysis would require access to later decisions and would need to distinguish the majority's holdings from Kirby J's dissent. In particular, a later court's treatment of the question whether the High Court has an incidental power to secure a prisoner's attendance would need to be assessed separately: the majority left that broader question open ([7]), while Kirby J considered it arguable and urged its resolution ([13], [29]).
The clearest open question is whether a source of power other than s 78 or O 55 rr 1 and 39 could authorise an order for a prisoner's production in a special leave application. The majority did not answer it, while Kirby J considered an incidental constitutional power arguable ([7], [13]).
A further question is how the Court should decide when oral argument by an unrepresented prisoner might assist. The majority considered oral submissions unnecessary for Muir's proposed s 16G point ([8]). Kirby J argued that usefulness cannot always be assessed in advance and described an occasion when oral submissions changed his view of a special leave application ([20]-[22]). The judgment does not provide a general procedural test reconciling those positions.
The judgment also leaves open how differing arrangements made by custodial authorities should be addressed. Kirby J described different practices among jurisdictions and regarded them as unequal treatment ([24]-[28]). The majority did not decide whether those practices had constitutional or statutory consequences.
A final question concerns the relationship between a special leave process conducted on written materials and equality of participation. Kirby J argued that continuing to hold oral hearings for some applicants while denying access to others required strong justification and a legal basis ([23], [28]). The majority decided the case without resolving that broader issue. The judgment thus provides a concrete majority ruling on the sources Muir invoked, alongside a dissent urging the Court to determine a wider question of power and equality.
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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, KIRBY AND HAYNE JJ
DAVID JOHN MUIR APPLICANT
AND
THE QUEEN RESPONDENT
Muir v The Queen
[2004] HCA 21
2 April 2004
C3/2003
ORDER
Notice of motion dismissed. Application for special leave to appeal from the decision of the Court of Appeal of the Australian Capital Territory refused.
Representation:
No appearance for the applicant
I D Temby QC with J R White for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Muir v The Queen
Practice and procedure – High Court – Application for special leave to appeal from orders of Supreme Court of Australian Capital Territory – Application on motion by an indigent prisoner in custody for an order requiring his production to High Court to enable him to make oral submissions in support of application for special leave – Whether the High Court has power to make such an order – Whether it would do so in the case – Whether application to be decided on the papers.
Constitutional law (Cth) – High Court – Appellate jurisdiction – Whether implied powers under the Constitution to uphold the authority of the High Court – Whether question of power of High Court to order production of an unrepresented prisoner applicant for special leave should be referred to a Full Court – Whether appellate jurisdiction of the High Court engaged at stage of special leave application – Whether differing practices of custodial authorities in different Australian jurisdictions relevant to disposition of motion – Whether motion and application could and should be decided on the papers.
Criminal law and procedure – Sentencing – Convicted federal offender – Statutory provisions governing sentencing of prisoner convicted of offences against Crimes Act 1914 (Cth) – Whether sentencing judge correctly applied federal sentencing law – Whether decision of Court of Appeal attended by sufficient doubt to warrant grant of special leave.
Constitution, ss 73, 75.
Crimes Act 1914 (Cth), s 16G.
Judiciary Act 1903 (Cth), ss 35(2), 35AA(2), 78.
High Court Rules, O 55 r 1, O 55 r 39, O 69A r 15.
McHUGH AND HAYNE JJ. David John Muir has filed an application for special leave to appeal against orders dismissing his appeal to the Court of Appeal of the Australian Capital Territory against sentences imposed on him for certain federal offences. Mr Muir is in prison. He is now being held at Goulburn Correctional Centre. He has been told by a manager at that facility that, without an order of the Court, the prison authorities will not deliver him to the Court for him to make oral submissions in support of his application for special leave.
Acting under O 69A r 15 of the High Court Rules, McHugh J directed that the application for special leave be determined on the papers. After the direction under O 69A r 15 had been given, Mr Muir filed a notice of motion seeking an order that he be produced from prison and further, or alternatively, that the application for special leave be adjourned. The tension between this application and the earlier direction may be noted, but need not be resolved.
The notice of motion was directed only to the Commonwealth Director of Public Prosecutions. It was not directed to the person most immediately affected by the first form of relief sought, namely, the applicant's gaoler. If the notice of motion and supporting material had been served on the Director of Public Prosecutions, it must necessarily have been served late. We have been informed that that is the case. Ordinarily, this would lead to an order adjourning consideration of the motion. In the particular circumstances of this case, however, so to order would be futile. It would impose unnecessary expense on the party to whom the notice of motion is now directed and on any others upon whom it would have to be served. No less importantly, to adjourn the application would displace the hearing of another application which, but for the adjournment of this application, would be fixed on that future date.
It is necessary to explain why adjourning the applications made by the notice of motion would be futile. Mr Muir has filed extensive written submissions in support of the applications. Those submissions reveal that the purpose of seeking an order adjourning the application for special leave is to allow further time to elapse for Attorneys-General to consider notices under s 78B of the Judiciary Act 1903 (Cth) which Mr Muir issued on 31 March 2004. These notices relate to the application for special leave, not the application for an order that he be produced from confinement. This aspect of the applications may be put to one side.
Insofar as he seeks an order for his production from prison, Mr Muir points to what he says are two sources of power to make such an order: s 78 of the Judiciary Act and some particular provisions of the Rules of Court. Neither provides the power to make an order of the kind sought by Mr Muir. Section 78 of the Judiciary Act provides:
"In every Court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors as by this Act or the laws and rules regulating the practice of those Courts respectively are permitted to appear therein."
In Collins v The Queen1, five members of the Court held that s 78 is not engaged by an application for special leave to appeal. An application for special leave is no more than an application for leave to commence a proceeding in the Court2. An applicant for special leave is not a party within the meaning of s 783. As McHugh J pointed out in Milat v The Queen4, other decisions of the Court since Collins neither require nor permit a different answer.
Insofar as Mr Muir prays in aid the High Court Rules, in particular O 55 r 1 and O 55 r 39, none of those rules supplies the power to make an order of the kind now sought. Order 55 rr 1 and 39 are concerned only with proceedings for relief under s 75(v) of the Constitution or like relief. They are not rules directed to the powers of the Court in the wholly different and distinctive circumstances of an application for leave to commence a proceeding in the Court's appellate jurisdiction. Mr Muir points to no other source of power. But even if, contrary to the views expressed by McHugh J in Milat, some other source of power to make an order of the kind sought could be identified, there would be no occasion in this case to exercise it in favour of Mr Muir.
In this, as in all other applications for special leave, the written submissions are the primary vehicle for persuading the Court that there is a point appropriate for the grant of special leave. There are undoubtedly cases in which oral argument may assist the Court, but very rarely will that be so where the applicant is not represented. In the present case, the point which Mr Muir seeks to argue in an appeal to this Court, that the primary judge did not take account of s 16G of the Crimes Act 1914 (Cth)5 when fixing the sentence on him, is clear. It is not a point which admits of development. Either account of s 16G was taken or it was not. Oral argument of the application for special leave would not assist.
In these circumstances, in our view, to adjourn the application for special leave is futile. Accordingly, we would dismiss the notice of motion.
In accordance with the direction that McHugh J gave under O 69A r 15, the application for special leave to appeal will be determined on the written submissions of both parties: the applicant and the Commonwealth Director of Public Prosecutions.
Features of the proceedings
The applicant has sought an order that he be produced from confinement in the Goulburn Correctional Centre in New South Wales, where he is serving the sentence imposed on him in the Supreme Court. It is that sentence which the applicant wishes to challenge in this Court. The sentence is for a total of seven years and six months imprisonment, commencing from 5 June 2001. For the purpose of disposing of the challenge, this Court has before it the applicant's application for special leave. The applicant has filed written submissions in support of that application. So has the respondent. The written submissions for the applicant, and, of course, for the respondent, are detailed, intelligent and well presented. However, the written submissions for the applicant do not today have the support of oral submissions, either by the applicant personally or by a legal practitioner on his behalf.
The respondent is represented before the Court by the Director of Public Prosecutions of the Commonwealth. Mr Ian Temby QC, a most experienced barrister, has appeared together with junior counsel in the Director's interest. So this is the position: experienced barristers are present in Court to support the respondent in the motion and application that are before us. The applicant is not present. The seat at the Bar table for the applicant is empty. On the face of things, this is a somewhat unequal contest of arms.
Counsel for the respondent conceded, properly, that the issue raised by the applicant's motion is not unimportant for the administration of justice. He recognised that, upon it, differing views have been expressed in this Court. He indicated the preparedness of the Director, if so required, to offer written and oral submissions on the point raised in the applicant's motion. I would give him that facility.
In an administrative order made earlier9, McHugh J directed that the application should be heard by the Court today on the papers. This direction followed the indication that the applicant was in prison in New South Wales and would not be legally represented. However, his Honour's order was made before the Court had the applicant's motion. That motion, filed on 31 March 2004, overtakes the administrative order. Self-evidently, this Court is obliged to dispose of the applicant's motion in a judicial manner.
The applicant's motion is relevant to the mode of disposal of that process itself. He asks to be given the opportunity to be heard orally in support of the motion as well as of the substantive special leave application. He therefore asks that both proceedings be adjourned. In my opinion, this Court, after first giving an opportunity to be heard, should order the gaoler who is detaining the applicant to bring the applicant to a place in order to allow him to be heard as he requests. Alternatively, if the Court has sufficient doubts as to its power to make such an order, it should adjourn the hearing of the motion and the application for special leave. It should request the Attorney-General of the Commonwealth, the Human Rights and Equal Opportunity Commission, the relevant Bar Association or some other appropriate person or body to appear by counsel before the Court, as well as the respondent, to assist the Court to resolve the issue of power and to advance, as best we may, the interests of the applicant (and others in a like position) to be heard by the Court in support of the motion and the application for special leave.
The utility of oral submissions from prisoners
For more than a decade before my appointment to this Court, I regularly participated in the Court of Criminal Appeal of New South Wales. There, where prisoners were not granted legal aid by the public legal aid body and were not able to afford counsel or did not wish to be so represented, they were invariably brought to court to be heard. More recently, in bail applications in some State Supreme Courts, video links have been established to permit prisoners in that position to be heard by the judges, the prisoners remaining in a custodial institution to which the video link to the court is established. I would reject any suggestion that this form of hearing is invariably a fruitless exercise. Quite apart from the legal and symbolic importance of equality before the courts, the oral submissions of prisoners have, from time to time, assisted me (and doubtless many other judges) in the disposition of their applications for leave or in the hearing of appeals. In this Court, where prisoners have appeared to advance oral arguments, they have assisted me in applications for special leave.
When Cameron v The Queen10 first came before this Court, I was sitting in special leave applications in Perth with Gaudron J. In accordance with the practice of custodial authorities in that State, Mr Cameron (who was not legally represented) was brought to the hearing of the application. Like the present applicant, Mr Cameron had filed intelligent and well-expressed submissions. However, on the written submissions, I was not inclined to favour the grant of special leave in his case. When, however, Mr Cameron appeared before Gaudron J and me, he persuaded us both to grant him special leave. He was then granted legal aid or pro bono assistance which he had not earlier received. He won his appeal.
The essential point raised in the present application for special leave is not futile or insusceptible to oral elaboration as the majority suggest. The respondent resists the point raised by the applicant under s 16G of the Crimes Act 1914 (Cth) by saying that the judge did sufficiently address and apply the section and, in any case, that it has now been repealed. The applicant contests these arguments. In the past, the section has been the subject of substantial oral argument before the courts11. We cannot know whether oral argument would again be useful until we have heard it.
The unequal treatment of some prisoners
To deny the occasional utility of oral submissions in this Court, including on behalf of prisoners, is to deny the experience of the common law system of advocacy before judges sitting in public. In the press of judicial business, it is arguable that, at the level of a final court, all applicants for special leave should have their applications decided on the papers or should all go through a filter for the purpose of winnowing out cases where there is no basis upon which an oral submission could persuade the Court to grant special leave. However, this is not this Court's present system for special leave hearings. Whilst this Court persists with oral hearings, we should do so, unless there is some strong justification and legal basis for the contrary approach, on a footing of complete equality between all persons appearing before the Court.
In Queensland, Western Australia and, where an informal request is made, in South Australia, prisoners are regularly brought to a place of hearing or to the place where the hearing is established by video link to Canberra to permit them to enjoy the right of any other party in a special leave application, namely 20 minutes of oral submissions before the Court. However, in New South Wales and in respect of Australian Capital Territory prisoners committed to New South Wales prisons, the custodial authorities do not co‑operate in this way. This is an inequality in the treatment of prisoners and in the exercise of their rights within the Commonwealth in which I do not acquiesce. Whether there is power to correct it should be addressed by this Court without delay. It is unarguably an important issue for the Court. It is also important for the Crown representing the Commonwealth in federal criminal cases, and for prisoners and their families.
Prisoners are human beings. In most cases, they are also citizens of this country, "subjects of the Queen" and "electors" under the Constitution. They should, so far as the law can allow, ordinarily have the same rights as all other persons before this Court. They have lost their liberty whilst they are in prison. However, so far as I am concerned, they have not lost their human dignity or their right to equality before the law12.
As mine is a minority view, it follows that this Court will proceed in the absence of Mr Muir to dispose of his motion and application for special leave, on the papers without oral argument. I regard that as unjust. This very day, this Court has heard and disposed of seven applications by video link, one from Brisbane and six from Perth. There is no apparent technical difficulty, if the physical presence of the applicant creates insuperable problems, why a video link could not just as readily be established to Goulburn Correctional Centre. What is missing is the will and the perception of the necessity and power to so require.
Orders
For these reasons, I would propose that the Court accede to the applicant's motion for adjournment of the hearing of the application for special leave. I would favour referring to a Full Court of this Court the question of whether this Court has the power to accede to the applicant's request that he be brought to the Court or to some other secure place to argue the motion and the application for special leave. That reference would permit necessary notices to be given, including under s 78B of the Judiciary Act, and ensure the attendance before the Court of those affected and those who could assist the Court in resolving this question. I dissent from the view taken in the motion by my colleagues.
Necessarily, my concurrence in the order proposed by McHugh and Hayne JJ disposing of the application for special leave, and specifically in the conclusion of a lack of sufficient doubt to warrant the grant of special leave, is based on the fact that the application has had to be dealt with on the papers without the benefit of oral submissions by or for the applicant.
(1975) 133 CLR 120. ↩
(1975) 133 CLR 120 at 122. ↩
(1975) 133 CLR 120 at 123. ↩
[2004] HCA 17 at [26]. ↩
The provision has now been repealed by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth). ↩
Constitution, s 73. See Tait v The Queen (1962) 108 CLR 620 at 624-625 per Dixon CJ ("... so that the authority of this Court may be maintained"). In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 557, the Court said that a power conferred by the Constitution, "embraces all that is necessary to effectuate" it, referring to Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77. ↩
Judiciary Act 1903 (Cth), ss 35(2) and 35AA(2). There are exceptions such as the power given to the Family Court of Australia to grant a certificate permitting appeals under the Family Law Act 1975 (Cth), s 95(b): DJL v Central Authority (2000) 201 CLR 226 at 259 [80]. ↩
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27; Ha v New South Wales (1997) 189 CLR 465 at 498; Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 572 [103]. ↩
Under High Court Rules, O 69A r 15: see reasons of McHugh and Hayne JJ at [2], [10]. ↩
Muir
The Queen
(1975) 133 CLR 120
(1962) 108 CLR 620
(1997) 189 CLR 520
(1955) 93 CLR 55
(2000) 201 CLR 226
(1992) 176 CLR 1
(1997) 189 CLR 465
(1999) 198 CLR 511
(2002) 209 CLR 339
(1990) 21 NSWLR 370
(1932) 47 CLR 520
(1991) 173 CLR 194
(1992) 174 CLR 455
(1992) 175 CLR 1
(2004) 78 ALJR 780
(2004) 206 ALR 189
Notice of motion dismissed. Application for special leave to appeal refused.
Having considered the written submissions of the parties, the Court is of the opinion that the decision of the Court of Appeal is not attended by doubt. Accordingly, special leave is refused.
KIRBY J. Sooner or later – preferably sooner – this Court will have to decide whether it has the power to order that a person, having the custody of a prisoner, bring that prisoner to court, or to some other secure place, where the prisoner can be heard in support of an application for special leave or in an appeal, if leave is granted, when the prisoner is not represented by a lawyer.
In my view, it is arguable that this Court has the relevant power, as incidental to its constitutional function to hear and determine appeals from all judgments of Supreme Courts6. That power appears to be even more clear where, as here, the court of trial and appeal was a Territory court, namely the Supreme Court of the Australian Capital Territory. And it is still more clear because that Court was exercising federal jurisdiction in the trial and sentencing of the applicant, Mr David Muir. He was tried and sentenced for an offence of fraud, contrary to the Crimes Act 1914 (Cth).
A grant of special leave is virtually always now a prerequisite to the invocation of this Court's constitutional function in appeals7. In deciding contested matters of constitutional power, this Court considers the substance, and not the form, of the matter in contention8. In substance, unless a person such as the applicant secures a grant of special leave to appeal, he or she cannot appeal. Securing such a grant depends upon communication and persuasion by the applicant, addressed to the Justices deciding the question. No matter of form can eliminate that constitutional reality.
Until the inequality before this Court is corrected, prisoners in New South Wales custodial institutions will continue to suffer a threefold inequality and discrimination as compared to (1) parties who are at liberty and who can come in person to the Court to address it; (2) prisoners who can afford to pay for legal representation or who are granted public or pro bono legal aid; and (3) prisoners in other Australian jurisdictions who, at their request, are assisted by the custodial authorities to enjoy the same rights of oral argument as all other parties enjoy in this nation in a special leave hearing before this Court.
It is one thing for the Parliament, by legislation enacted under s 73 of the Constitution, to "prescribe" exceptions or regulations limiting a right of parties to be heard in the appellate jurisdiction of the Court13. It is quite another thing for the Justices of this Court, acting judicially and exercising the judicial power of the Commonwealth, to adopt, or acquiesce in, a practice that treats some parties in an unequal and even discriminatory way14. There is no law that expressly purports to require such unequal and discriminatory treatment by the Court15. I regard such treatment as contrary to Ch III of the Constitution16 and also to the statutory implication of equal treatment of parties before this Court contained in the Judiciary Act 1903 (Cth), ss 35(2) and 35AA(2). In addition, it is arguably contrary to Australia's obligations under universal principles of human rights17 recognised in international law binding on this country18, a consideration that may inform our understanding of applicable Australian law19.
(2002) 209 CLR 339. ↩
See Director of Public Prosecutions (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370 at 383-384. ↩
cf Gibbons v Duffell (1932) 47 CLR 520 at 535 per Evatt J; Raymond v Honey [1983] 1 AC 1 at 14 per Lord Bridge of Harwich and see Finnane and Woodyatt, "'Not the King's enemies': Prisoners and their Rights in Australian History", in Brown and Wilkie (ed), Prisoners as Citizens: Human Rights in Australian Prisons, (2002) 81 at 100. ↩
See Carson v John Fairfax & Sons Ltd (1991) 173 CLR 194, upholding the Judiciary Act 1903 (Cth), s 35(2) as providing the virtually universal requirement of special leave to appeal. ↩
By the unequal and differential treatment of persons otherwise equal: Cameron v The Queen (2002) 209 CLR 339 at 343-344 [15] per Gaudron, Gummow and Callinan JJ. ↩
cf Leeth v The Commonwealth (1992) 174 CLR 455 at 467 per Mason CJ, Dawson and McHugh JJ; cf at 486-487 per Deane and Toohey JJ (diss), 502 per Gaudron J (diss). ↩
McHugh, "Does Chapter III of the Constitution protect substantive as well as procedural rights?" (2001) 21 Australian Bar Review 235 at 238 ("Gradual acceptance that Ch III protects due process rights"). ↩
International Covenant on Civil and Political Rights (ICCPR), art 14.1. The ICCPR was adopted at New York on 16 December 1966 and entered into force on 23 March 1976 in accordance with art 49. ICCPR entered into force for Australia on 13 November 1980: [1980] Australian Treaty Series No 23. Art 14.1 of the ICCPR provides that "All persons shall be equal before the courts". ↩
See Weiss v Austria, Views of the Human Rights Committee, No 1086/02 noted in Joseph, Shultz and Castan, The International Covenant on Civil and Political Rights - Cases, Materials and Commentary, 2nd ed (2004) at 395 [14.12]. ↩
Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42. ↩