New South Wales v Canellis

Oct. 26 Mason C.J.,Dawson, Toohey and McHugh JJ.

On 5 May 1994, at the conclusion of the argument, the Court made the following orders in each appeal:

Set aside the orders and declaration made by the Court of Appeal on 25 February 1994 except in so far as that Court granted leave to appeal from the orders made by Chief Judge O'Keefe in the Commercial Division. In lieu thereof order that the appeal to that Court be dismissed with costs.

The appellant to pay the respondents' costs of this appeal.

The Court announced that it would publish its reasons at a later date. What follows is a statement of our reasons for participating in the making of the orders.

The effect of the orders was to allow appeals by the State of New South Wales ("the State") against a unanimous decision of the New South Wales Court of Appeal (Kirby P., Clarke and Sheller JJ.A.). By that decision, the Court of Appeal granted leave to appeal and allowed appeals by each of the first respondents, Mr. Canellis and Mr. A.B. (formerly Mr. Elkins), against decisions of O'Keefe C.J. Comm. D. His Honour had refused an application by each of the respondents for a stay of an inquiry conducted by the Hon. John Patrick Slattery A.O., Q.C. ("the Commissioner"), a retired Judge of the Supreme Court of New South Wales, pursuant to s. 475 of the Crimes Act 1900 NSW ("the Act") into doubts or questions concerning the guilt of Andrew Kalajzich of three offences relating to the death of his wife Megan. The first respondents sought a stay until the State should undertake to pay the necessary and proper costs of their legal representation before the inquiry. The first respondents had given evidence for the prosecution in Mr. Kalajzich's trial on the three offences of which he had been found guilty. It was recognized that they would be important witnesses at the inquiry and there were reasons for thinking that Mr. Kalajzich would seek at the inquiry to attribute responsibility for his wife's death to them, a matter to which we shall refer in more detail.

The Court of Appeal allowed each appeal from the decision of O'Keefe C.J. Comm. D. and in each case made a declaration in the following terms:

1. The continuation of the hearings of the inquiry into the conviction of [Mr. Kalajzich], presently being conducted by [the Commissioner], to the extent that and insofar as the same may affect the interests of the [first respondent], would without proper and reasonable legal representation of the [first respondent], constitute a breach of the legal requirements of procedural fairness. The Court went on to make orders for costs against the State in favour of the first respondents and Mr. Kalajzich both in relation to the proceedings at first instance and in the Court of Appeal. Kirby P. stated that, if necessary, it would order a stay of the inquiry "until it was plain that it would be conducted under conditions that conformed to the necessities of procedural fairness". However, Kirby P. considered that it could safely be assumed that the State would take such steps as might be necessary to ensure that the inquiry would continue with procedural fairness to the first respondents.

In order to explain the basis on which the Court of Appeal made the declarations and the case which the State now makes in support of the appeals which it brought from the decision of the Court of Appeal, it is necessary to repeat as briefly as possible the circumstances which led to the establishment of the inquiry. They were set out by Kirby P. in his judgment. Much of what follows consists of allegations made by the parties concerned. On 27 May 1988, Mr. Kalajzich was convicted of murdering his wife Megan, of conspiring to murder her and of attempting to discharge a loaded gun with intent to murder her. He was sentenced to imprisonment for life. His appeal against conviction was dismissed by the Court of Appeal. An application for special leave to appeal was refused by this Court. Mr. Kalajzich then applied to the Supreme Court under s. 475 of the Act. That application was refused.

Subsequently Mr. Kalajzich applied under s. 475 to His Excellency the Governor. This application resulted in the appointment by the Governor, acting with the advice of the Executive Council, of the Commissioner to inquire into doubts or questions as to the guilt of Mr. Kalajzich in relation to the three offences of which he was convicted and to summon and examine on oath any person likely to give material information in the matter.

At the time of the events which led to the death of his wife, Mr. Kalajzich was a wealthy businessman who controlled the Manly Pacific Hotel and lived with his wife in a home at Fairlight near Manly. The respondent Mr. Elkins was an employee who worked as a security guard and manager of a nightclub at the hotel. Mr. Elkins was the principal witness for the prosecution at the trial of Mr. Kalajzich. He gave evidence that Mr. Kalajzich approached him and said that he wanted someone killed and instructed Mr. Elkins to go to Kings Cross to find someone who would do the job. According to Mr. Elkins, he recruited a man called Stokes who subsequently withdrew, and then he made contact with Franciscus Vandenberg who in turn communicated with Kerry Orrock who approached Mr. Canellis.

Mr. Canellis admitted that Mr. Orrock asked him to carry out a contract murder which Mr. Canellis agreed to carry out for $5,000 "up front" and $20,000 "on completion". Mr. Elkins reported this to Mr. Kalajzich and provided Mr. Canellis with a gun and $5,000 in cash in a briefcase. The $20,000 was left in a room booked in Mr. Elkins' name in a North Sydney motel. The key to the room was to be left in Mr. Vandenberg's letter-box to be picked up after completion of the contract.

Mr. Canellis said that, although he made observations of the home at Fairlight, he decided that he would withdraw from the undertaking. Apparently he kept the $5,000 but returned the gun to Mr. Orrock who in turn gave it to Mr. Vandenberg. According to Mr. Elkins, Mr. Vandenberg then offered his services as the executioner. After making observations of the Fairlight premises, on 11 January 1986 he attempted to shoot Mrs. Kalajzich as she was leaving the garage. The rifle failed to discharge. He hit her over the head with the rifle, dislodging the silencer which, according to the evidence, was recovered by police from the garden on 17 February 1986.

Mr. Vandenberg then obtained another gun from Mr. Orrock which was provided by Mr. Canellis, who claimed that he believed that it was to be used by Mr. Vandenberg for self-protection only. Mr. Vandenberg then flew to Adelaide for the purpose of buying new silencers. Mr. Elkins provided the ticket for the flight, allegedly with moneys given by Mr. Kalajzich.

The prosecution case was that Mr. Vandenberg, having returned from Adelaide with the silencers, entered the Fairlight premises on 27 January 1986 through a door left open by arrangement with Mr. Kalajzich and fired two shots which killed Mrs. Kalajzich instantly. He also fired two shots into the pillow of Mr. Kalajzich by arrangement with him.

Mr. Canellis, upon hearing the reports in the media of the death of Mrs. Kalajzich, feared that he would be implicated in the crime. He contacted Detective Sergeant Kevin Woods whom he knew. At a meeting with Detective Sergeant Woods and Detective Inspectors Gersbach and Inkster on 29 January 1986, Mr. Canellis informed them of what he claimed to know of the conspiracy to murder Mrs. Kalajzich and of Mr. Kalajzich's role in that conspiracy. On 2 February 1986, under a warrant issued pursuant to the Listening Devices Act 1984 NSW, Mr. Canellis recorded a conversation which he had with Mr. Orrock and Mr. Vandenberg. The conversation confirmed relevant and important details of the alleged conspiracy.

Mr. Canellis was given an immunity from prosecution on the charge of conspiracy to murder Mrs. Kalajzich in consideration of his assistance. Mr. Elkins then offered to co-operate. He gave evidence for the prosecution. His evidence implicated Mr. Kalajzich in the murder of his wife and supplied a motive by giving evidence of a relationship between Mr. Kalajzich and a Ms. M.W. Mr. Elkins stated that they were constantly seen together and had been observed dancing "cheek to cheek".

Mr. Elkins pleaded guilty to the charge of conspiracy. He was sentenced to ten years' penal servitude with a non-parole period of five years. He served three years and was released on 27 October 1989. He then commenced a new life with his family under a new identity. Mr. Vandenberg pleaded guilty and was sentenced to life imprisonment. Mr. Orrock was found guilty and sentenced to life imprisonment. Mr. Vandenberg was later found dead in prison.

Mr. Kalajzich claims that he was the victim of a miscarriage of justice in that he was convicted on the false evidence of self-confessed murderers and "hit men". He suggests that those responsible for the murder of his wife were in conspiracy with senior police officers who participated in a scheme to destroy him.

From the foregoing account, it will be seen that the prosecution depended in a fundamental way on the evidence of the first respondents. On Mr. Kalajzich's case they were guilty of conspiracy to pervert the course of justice and, if that were so, they would be exposed to the loss of their immunities.

The Commissioner is a "prescribed person" within the meaning of s. 475(1) of the Act and, as such, may "summon and examine on oath all persons likely to give material information". Section 475(2) provided:

The attendance of every person so summoned may be enforced, and his examination compelled, and any false statement wilfully made by him shall be punishable, in like manner as if he had been summoned by, or been duly sworn and examined before, the same prescribed person, in a case lawfully pending before him. Section 475(4) required the Commissioner to report to the Governor who was then required to dispose of the matter as appeared just.

As a result of legislative amendments coming into operation after the inquiry was established, s. 475 was replaced by a new Pt 13A "Review of Convictions". However, s. 475 continued to apply to pending matters [1] , subject to a later amendment which conferred upon the Commissioner certain powers and duties contained in s. 474G [2] . By s. 474G(2), the Commissioner acquires the powers, authorities, protections and immunities conferred on a commissioner by the Royal Commissions Act 1923 NSW. Although a witness summoned by a commissioner is subject to the requirements of that Act, the witness is given greater protection than that afforded by s. 475(3) of the Crimes Act. Thus, s. 474G(4) provides:

If it appears that the character of any person (being a person who was a witness at the proceedings from which the conviction arose) may be affected by the inquiry, the prescribed person must permit the person to be present at the inquiry and to examine any witness who attends the inquiry. 1. Crimes Legislation (Review of Convictions) Amendment Act 1993 NSW, Sch. 1, cl. 6. 2. Statute Law (Miscellaneous Provisions) Act (No. 2) 1993 NSW.

Refusal of the first respondents' applications for legal aid

On 11 November 1993, at the beginning of the inquiry, the Commissioner gave counsel leave to appear for Mr. Elkins and Mr. Canellis. Senior and junior counsel were granted leave to assist the inquiry. Leave was also granted to a number of other persons to be legally represented at the inquiry. They included Mr. Kalajzich who was represented by two counsel. Two police officers, former Detective Inspectors Gersbach and Inkster, were represented by senior and junior counsel. Former Detective Sergeant Woods was separately represented and the Director of Public Prosecutions was represented by senior prosecuting counsel. With the exception of the first respondents and former Detective Sergeant Woods, the costs of all the persons mentioned were funded directly or indirectly by the State. The State agreed to pay the legal costs of Mr. Kalajzich. According to information given to the Court of Appeal, the total assistance given to him by the State amounts to $546,000. The total cost to the State, directly and indirectly, of assisting the persons mentioned above approximates $2 million.

Each of the first respondents applied to the Legal Aid Commission for legal aid to be provided for the duration of the inquiry. The application was based on various factors, the most important of which was that the applicants had given evidence for the Crown at the trial of Mr. Kalajzich. In addition, there were reasons, already mentioned, for apprehending that he would seek to implicate them in the unlawful killing of his wife. In the circumstances, the first respondents urged that the provision of legal aid was necessary to protect their interests when all other major interests involved in the inquiry were publicly assisted, directly or indirectly. The Commissioner expressed the view that it would be to the advantage of the inquiry if the first respondents were legally represented, such representation being beyond their means.

The Legal Aid Commission refused the applications on the ground that legal representation for the duration of the inquiry was "outside the guidelines for which legal aid is generally available". However, the Legal Aid Commission did offer to each of the first respondents a lump sum of $22,000 "to assist him to gain access to independent legal advice prior to and during the course of him giving evidence to the inquiry". The first respondents appealed from that decision to the Legal Aid Review Committee but the appeal was unsuccessful.

It is convenient to set out certain features of the inquiry which Kirby P. identified in his judgment [3] .

(1) Its estimated duration is uncertain. At one stage it was suggested that it might last three years. The Commissioner appears to contemplate a duration of six to nine months.

(2) The inquiry is being conducted substantially with the aid of computers. The Court of Appeal was informed, without contest, that counsel, the Commissioner and others have computer screens before them. Documents are not shown to witnesses in hard copy, nor are they available in that form in the inquiry room. Instead, they are stored on computer, and flashed on a screen for the witnesses to examine. Similar arrangements have been made in relation to the transcript. Counsel have a terminal or screen providing access to evidence within moments of it being given. Mastery of this equipment requires some training or experience. The way in which the inquiry is being conducted is sophisticated and an advance on the ordinary procedures which have hitherto been followed in courts, tribunals and inquiries.

(3) There is a vast amount of submission material provided for Mr. Kalajzich. It is said that it runs into many volumes.

(4) Some material, the subject of a ruling by the Commissioner, is not available to lay witnesses at all, but is retained in counsel's chambers, to be accessed by counsel in the absence of their clients.

(5) It was proved, and not seriously contested, that neither Mr. Canellis nor Mr. Elkins had the computer skills or the level of education or training necessary to access the relevant material on computer. Similarly, it was proved, and not seriously contested, that they were unable to master the intellectual feat of reading, analyzing and understanding the relevant data (written and electronic) in a way that could be expected of trained counsel assisted by experts. The evidence before the Court of Appeal indicates that senior counsel assisting the inquiry had recommended the provision to the inquiry of "computer equipment and staff experienced in computerized litigation support". That support being beyond the expertise of the Department supporting the inquiry, a private company was engaged to provide technical services and computer equipment.

The budget for what was then an estimated six months' inquiry, covering the Commissioner, two counsel assisting, four personal staff, an assistant solicitor, an executive officer, a judge's associate, a sheriff's officer, the computer services, court reporting and witnesses' expenses, and other costs, came in at $1,358,000. Kirby P. estimated that the minimum public cost of the inquiry is of the order of $3.5 million. The longer the inquiry continues, the greater the cost will be.

The first respondents' applications to the Commissioner

The first respondents then took the matter up with the Commissioner, pointing out that the sum provided was quickly exhausted. Although Mr. Elkins did not ask for an adjournment or stay, he was affected adversely in a particular respect. Unless represented by counsel, he had no alternative but to attend the hearing in person in order to represent his interests adequately. This course would prejudice not only his changed identity but also his employment. Counsel for Mr. Canellis asked the Commissioner, "as a matter of fairness", to stay the hearing permanently unless he could be represented properly before the inquiry.

Counsel assisting the inquiry opposed this application on the ground that the first respondents would not be called for two months and that an opportunity would be given to their representatives to attend when witnesses were called. The Commissioner refused the application, stating that he would be "very willing" to grant an adjournment or do whatever he could to ensure that the first respondents' interests were protected. He stated that, if counsel did not appear, he would endeavour to see that "justice is equal on both sides". The first respondents then commenced the proceedings in the Supreme Court.

The case for Mr. Kalajzich at the inquiry as it adversely reflects on the first respondents

In the Court of Appeal, Kirby P. set out in some detail the way in which the case for Mr. Kalajzich implicates the first respondents and alleges serious wrongdoing on the part of each of them. Mr. Kalajzich accuses each of them of giving wilfully false evidence and he raises the question whether Mr. Canellis was the murderer of Mrs. Kalajzich. Counsel for Mr. Kalajzich presented a list of topics to the Commissioner at the beginning of the inquiry. Many of these topics appeared to implicate Mr. Canellis in the murder of Mrs. Kalajzich or in a conspiracy with police officers to falsely accuse Mr. Kalajzich of murdering Mrs. Kalajzich. It is central to Mr. Kalajzich's case that Mr. Elkins gave false evidence at the trial.

The police officers, who are represented at the inquiry and will give evidence, have an interest in common with the first respondents in denying Mr. Kalajzich's conspiracy case. To that extent, there will be interests represented at the inquiry which will contradict Mr. Kalajzich. But the contradiction may well be less than completely effective unless the first respondents are able to present their version of events and challenge Mr. Kalajzich's case with the advantage of legal representation.

In the Court of Appeal, Kirby P. rejected the argument that s. 474G(4) alone conferred upon the first respondents a right to publicly funded legal representation. However, his Honour considered that the application of the common law principles of procedural fairness extended, in the circumstances of these appeals, to require the Commissioner to consider whether he should refrain from exercising his powers if he could only do so in such a way that procedural unfairness would result. The effect of his Honour's reasoning is best captured in the following passage [4] :

Although legislation fails to, and the common law does not, provide an entitlement to publicly funded legal representation, this does not mean, where an absence of such representation occasions serious unfairness, that courts are without the facility of redress. It is the duty of courts in proper cases to ensure justice, and to protect against unfairness. Thus, in a criminal trial, courts may afford an adjournment, or a permanent stay, to prevent such an injustice being done. Or they may allow an appeal, and quash a conviction achieved, as a result of such an injustice. See Dietrich [5] . These consequences are achieved, not by creating a new right at common law, but by utilizing the long established powers of supervisory courts, by judicial review, to prevent the processes of the law themselves becoming an instrument of oppression or unfairness. Cf. Dietrich [6] . It is insufficient to say that the donees of power will not be required to conduct proceedings which are unable to be conducted fairly. The law requires that if that is the only way in which the proceedings can be conducted, the repository of the power must seriously consider whether, in the particular circumstances, the power should be used at all. 1. (1994) 33 N.S.W.L.R., at p. 121. 2. Dietrich v The Queen (1992), 177 C.L.R. 292, at p. 311. 3. ibid., at p. 317.

The next step in his Honour's reasoning was to say that the Commissioner exercised his statutory powers without due regard to the first respondents' entitlement to procedural fairness and this omission vitiated his decision. The final step in the reasoning was the conclusion that the statutory entitlement under s. 474G(4) of the first respondents to be present at the inquiry and to examine witnesses would not be satisfied if the first respondents were unrepresented, given the complexity of the subject matter of the inquiry, the wealth of factual detail, the technological facilities used to collect and present it, the absence of access to some of it, except by counsel, and the level of education and experience of the first respondents. Sheller J.A.'s reasoning was much to the same effect and Clarke J.A. expressed his substantial agreement with Kirby P. and Sheller J.A.

Kirby P. sought to deflect the argument that the Court's decision would encourage applications for a stay by all witnesses summoned before inquiries with the statement that the first respondents' "claim for relief rests upon the very special circumstances of their case".

The Solicitor-General for New South Wales submits that s. 474G(4) does not confer a right to publicly funded representation for witnesses and that is common ground. The Solicitor-General further submits that the common law of Australia does not recognize any entitlement of an accused at trial, let alone a witness, to be provided with legal representation at public expense.

The Solicitor-General's submission that the common law does not recognize an entitlement of an accused at trial to publicly funded legal representation is supported by all the judgments in Dietrich [7] . At the same time, the principle established by the decision in that case is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation [8] . As the majority judgments made clear, that principle is based on, and derives from, the accused's right to a fair trial [9] .

1. (1992) 177 C.L.R., at pp. 297-298, per Mason C.J. and McHugh J.; p. 317, per Brennan J.; p. 330, per Deane J.; p. 343, per Dawson J.; p. 356, per Toohey J.; pp. 364-365, per Gaudron J. 2. ibid., at p. 315, per Mason C.J. and McHugh J.; p. 357, per Toohey J.; pp. 374-375, per Gaudron J. 3. ibid., p. 299, per Mason C.J. and McHugh J.; p. 326, per Deane J.; p. 353, per Toohey J.; p. 362, per Gaudron J.

There is no suggestion in the majority judgments that a court could exercise a similar jurisdiction in civil proceedings or in committal proceedings; nor do they suggest that such a jurisdiction could be exercised in favour of an indigent person charged with a criminal offence which is other than serious. Furthermore, and this is of decisive importance in the present case, the principle in Dietrich is concerned with the right to a fair trial of a party to criminal proceedings; the principle has nothing at all to say about the protection of the interests of a witness, let alone the protection of the interests of a witness at an inquiry. Finally, Dietrich enunciated a principle governing the exercise of inherent jurisdiction by a court with respect to proceedings in that court; Dietrich did not consider the power of a tribunal with respect to the adjournment or stay of proceedings for the purpose of securing legal representation for a witness. In that respect, a Commissioner acting under s. 475 does not possess express or inherent power to grant a stay. Certainly there is no express power in the section. And the whole tenor of the section is against the existence of any implied or inherent power. The Commissioner is directed by s. 475(4) to transmit to the Governor, "as soon as shall be practicable" every deposition taken under the section "together with his report as to the conclusions to be drawn therefrom". No other option is available to the Commissioner [10] .

1. See Grassby v The Queen (1989), 168 C.L.R. 1, at pp. 14-15.

To the extent that the decision was derived from the concept of the accused's right to a fair trial, Dietrich may possibly be regarded as a manifestation of the rules of procedural fairness. But, for reasons already stated, neither the decision nor the reasoning in Dietrich supports the view that the grant of a stay so as to ensure the securing of legal representation for a witness at an inquiry forms part of the requirements of procedural fairness applicable to an inquiry.

However, their Honours in the Court of Appeal considered that their power to grant declaratory relief of the kind declared stemmed from the principles governing procedural fairness. That these principles had some application to the inquiry was conceded, and rightly so, by the Solicitor-General. Section 474G(4) expressly recognizes the right of a person, being a witness whose character might be affected by the inquiry, to be present and to examine any witness who attends the inquiry. In addition, as the Solicitor-General acknowledged, it would be incumbent on the Commissioner to accord procedural fairness to witnesses on whom, at the conclusion of the evidence, he might make adverse or unfavourable comments in his report [11] .

1. National Companies and Securities Commission v News Corporation Ltd. (1984), 156 C.L.R. 296; Annetts v McCann (1990), 170 C.L.R. 596.

The principles of procedural fairness apply to administrative tribunals as well as to the exercise of judicial power [12] . But it is well accepted that the content of the requirements of procedural fairness and natural justice depend upon the circumstances of the particular case or proceeding [13] . and that what is required in an administrative inquiry is not to be equated to the requirements as they apply to the exercise of judicial power. And, so far, the Dietrich principle excepted, there is no authority for the proposition that the rules of procedural fairness extend to a requirement that legal representation be provided to a party at a trial, let alone a witness at an inquiry. The absence of authority is significant in that it is explicable by reference to the fact that the interests of a witness at an inquiry under s. 475 are fundamentally different from those of an accused at trial. A witness does not run the risk of conviction or that an adverse order will be made in respect of the transactions which will be investigated at the inquiry. As the Commissioner's authority under s. 475 is confined to inquiring into doubts or questions concerning the convicted person's guilt, it is not the Commissioner's function to make findings against a witness or even to make recommendations that a witness be charged with an offence arising out of the transactions to be examined. Section 475(4) requires that the Commissioner's report be forwarded to the Governor or to the Supreme Court, depending on the source of the direction to inquire. The Governor is enjoined, himself or on the report of the Supreme Court, to dispose of the matter "as shall appear to be just". It is apparent that, once the depositions and report have been forwarded to the Governor, the Commissioner has no further function to perform.

1. Kioa v West (1985), 159 C.L.R. 550, at p. 584, per Mason J.; Annetts (1990), 170 C.L.R., at p. 598, per Mason C.J., Deane and McHugh JJ.; Grassby v The Queen. 2. Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969), 122 C.L.R. 546, at pp. 552-553, per curiam; National Companies and Securities Commission v News Corporation Ltd. (1984), 156 C.L.R., at pp. 311-312, per Gibbs C.J.

The question is not whether it is unfair, in some colloquial sense, for the inquiry to proceed with the respondents unrepresented. The question is whether procedural fairness dictates that the inquiry may not proceed unless the respondents are represented by counsel. For the reasons already given, procedural fairness does not dictate such a course in the case of witnesses at an inquiry under s. 475.

It is, of course, possible that the Commissioner may ultimately proceed to form conclusions or make comments which are adverse or unfavourable to one or both of the first respondents and that such conclusions or comments may adversely affect reputation. As we have mentioned, the Solicitor-General has acknowledged that it would then be incumbent on the Commissioner to accord natural justice. Reputation is an interest which attracts the protection of the rules of natural justice [14] , though an interest in reputation is not to be compared with an accused's interest in contesting a conviction for an offence. Whether the present inquiry might result in adverse or unfavourable conclusions or comments, whether they might be of such a kind as to attract the rules of natural justice and what the content of those requirements would be cannot be answered at this stage of the inquiry. Much would depend upon the nature of the conclusions or comments and the foundation offered for such conclusions or comments. However, in the light of what we have already said in rejecting the suggested extension of the Dietrich principle, we do not consider that the content of the rules of procedural fairness would extend to the provision of legal representation or the grant of a stay to ensure the provision of such representation.

1. Ainsworth v Criminal Justice Commission (1992), 175 C.L.R. 564, at p. 578, per Mason C.J., Dawson, Toohey and Gaudron JJ.

In addition to the considerations mentioned earlier, the absence of power in the Commissioner to make an order for funding of legal representation for a witness or to grant a stay for the purpose of ensuring that representation is a telling argument. The rules of procedural fairness cannot compel a decision-maker to do what he or she lacks power to do. Moreover, the potential application of the Dietrich principle in a subsequent trial of the respondents or either of them, in the event that such a trial should eventuate, weakens the case for suggesting that publicly funded representation at the inquiry is part of the content of the rules of procedural fairness.

Indeed, despite the Court of Appeal's attempt to place this case in an exceptional category, it is difficult to see how the grant of a stay in the present case could be distinguished in a principled way from other cases in which indigent witnesses at an inquiry are exposed to adverse findings, recommendations, conclusions or comments, whether leading to the institution of criminal proceedings or not. The Court of Appeal's reliance on s. 474G(4) provides an apparent point of distinction. But that sub-section does not import the Dietrich principle into the inquiry under s. 475 or import publicly funded legal representation as an incident of procedural fairness. The absence of any principled distinction leads to the comment that the cost to public funds of the provision of legal representation of witnesses exposed to adverse findings, recommendations, conclusions or comments could be very considerable.

In the present case, it may well be that the Commissioner could devise an appropriate procedure which would give the first respondents an adequate opportunity to challenge or test the foundation for any adverse conclusions or unfavourable comments and to controvert them, should it eventuate that such conclusions or comments may be formed or made.

It was for the foregoing reasons that we allowed the appeal and participated in the making of the orders made on 5 May 1994.

The Hon. J. P. Slattery, A.O., Q.C., a retired Judge of the Supreme Court of New South Wales was appointed pursuant to s. 475(1) of the Crimes Act 1900 NSW ("the Act") as a "prescribed person" to conduct an Inquiry into doubts or questions as to the guilt of Andrew Kalajzich of offences relating to the murder of Mrs. Kalajzich. (I shall refer to Mr. Slattery as "the Commissioner", the term used in the judgments below.) The judgment of the majority states the circumstances which led to that appointment. The respondents, Messrs Canellis and Elkins (the name of Mr. A.B. before his identity was changed), were witnesses at the trial of Mr. Kalajzich and the Commissioner, in accordance with s. 474G(4) of the Act, has permitted them "to be present at the inquiry and to examine any witness who attends the inquiry". Messrs Canellis and Elkins exhausted the limited funds provided to them by the Legal Aid Commission of New South Wales and they applied to the Supreme Court for an order staying the Inquiry until such time as the State of New South Wales or the Legal Aid Commission should undertake to pay the necessary and proper costs for their legal representation before the Inquiry. They joined the Commissioner, the State and the Legal Aid Commission as respondents to their applications.

As there were grounds for believing that Mr. Kalajzich would assert before the Inquiry that Messrs Canellis and Elkins were involved in the murder of Mrs. Kalajzich and that he, Mr. Kalajzich, was not so involved, it was clear that the conduct of the Inquiry and the Commissioner's Report thereon were apt to affect the interests of Messrs Canellis and Elkins. An adverse report might expose them to the risk of prosecution for the murder of Mrs. Kalajzich. At least an adverse report would be damaging to their reputations and that is enough to entitle them to procedural fairness in the conduct of the Inquiry [15] . Where procedural fairness in a particular respect is not accorded in the exercise of a power, the power is exceeded [16] unless the statute conferring the power or under which the power is conferred exempts the repository of the power from the duty to accord procedural fairness in that respect [17] . The exemption may be express or it may be implied - either from the statutory context or from the nature of the power itself [18] .

1. National Companies and Securities Commission v News Corporation Ltd. (1984), 156 C.L.R. 296; Annetts v McCann (1990), 170 C.L.R. 596, at pp. 599, 608-609, 621; Ainsworth v Criminal Justice Commission (1992), 175 C.L.R. 564, at pp. 576, 578, 592; Johns v Australian Securities Commission (1993), 178 C.L.R. 408, at p. 471. 2. Anisminic Ltd. v Foreign Compensation Commission , [1969] 2 A.C. 147, at pp. 171, 195; Ainsworth v Criminal Justice Commission (1992), 175 C.L.R., at pp. 584-585; see also F.A.I. Insurances Ltd. v Winneke (1982), 151 C.L.R. 342, at pp. 372, 376, 408-409; Kioa v West (1985), 159 C.L.R. 550. 3. F.A.I. Insurances Ltd. v Winneke (1982), 151 C.L.R. 342, at pp. 362, 377; Builders' Registration Board of Queensland v Rauber (1983), 57 A.L.J.R. 376, at p. 385; 47 A.L.R. 55, at p. 71. 4. Twist v Randwick Municipal Council (1976), 136 C.L.R. 106, at pp. 109-110; J. v Lieschke (1987), 162 C.L.R. 447, at pp. 456-457.

Where the repository of a power is bound to accord procedural fairness in a particular respect but fails to do so, the remedies of judicial review are available to a person whose interests are affected by the failure. If none of the prerogative writs or remedies analogous thereto is available or is likely to be effective, the court may not be able to do more than give declaratory relief. That was the relief given in Ainsworth v Criminal Justice Commission [19] and in Johns v Australian Securities Commission [20] .

1. (1992) 175 C.L.R., at pp. 581-582, 595-597. 2. (1993) 178 C.L.R., at pp. 431, 437, 463.

If the Commissioner, being bound to accord procedural fairness to Messrs Canellis and Elkins, had failed to do so or had been proposing not to do so in the conduct of the Inquiry, the Supreme Court of New South Wales had jurisdiction to make a declaration accordingly and to make any further order appropriate to ensure that the Commissioner acted within the powers conferred on him. O'Keefe C.J. Comm. D. dismissed the applications by Messrs Canellis and Elkins for a stay but on appeal the Court of Appeal set aside his Honour's order and made a declaration that:

The continuation of the hearings of the inquiry into the conviction of Mr. Andrew Peter Kalajzich, presently being conducted by the first respondent, to the extent that and insofar as the same may affect the interests of the appellant, would without proper and reasonable legal representation of the appellant, constitute a breach of the legal requirements of procedural fairness. The Court further ordered: Liberty be reserved to any party, upon one day's notice to the others, other than the Legal Aid Commission (third respondent), to restore the proceedings to the list before the Court of Appeal for any further order, including any order providing for a stay of the further hearing of the inquiry by the Hon. J. P. Slattery (first respondent). Kirby P. made the declaration on the footing that the Commissioner would have no power to continue the Inquiry unless legal representation were provided for the respondents. His Honour said [21] : once the appellants establish that they are suffering a relevant derogation from their legal right to have the Commissioner exercise his statutory powers, with due regard to their entitlement to procedural fairness, the impugned conduct of the Commissioner is invalid. It is outside his grant of power. The only debate, therefore, can be about the form of the relief, if any, to which the established default entitles the appellants. Sheller J.A., holding that the Court was "exercising its supervisory jurisdiction to ensure that the requirements of procedural fairness are adhered to in the conduct of inquisitorial proceedings" considered "that procedural fairness requires that the Inquiry in so far as it may affect the interests of the appellants should not proceed unless and until the appellants are provided at the public expense with the necessary and proper costs for their legal representation". Clarke J.A. agreed with both Kirby P. and Sheller J.A. in respect of the propositions cited. On the approach taken by the Court of Appeal, the question is whether the Commissioner failed to accord procedural fairness to Messrs Canellis and Elkins in proceeding to conduct the Inquiry when they had not been given "proper and reasonable legal representation". 1. (1994) 33 N.S.W.L.R., at p. 123.

The jurisdiction of judicial review exists to supervise the exercise of a statutory power by the repository of a power and the court has no jurisdiction in judicial review to direct an authority other than the repository of the relevant power to act in a particular way. There was no application for judicial review of any decision made by the respondents other than the Commissioner. Therefore, on the applications made to the Court, no order of the Court of Appeal could properly have been directed to the State or to the Legal Aid Commission. The jurisdiction invoked could lead to no order other than an order which either compelled the Commissioner to exercise his powers in a lawful manner or for a purpose for which those powers were conferred or restrained the Commissioner from acting unlawfully or for an improper purpose. Yet the Commissioner had no authority to secure legal representation for witnesses nor any jurisdiction to order the State or the Legal Aid Commission to provide Messrs Canellis and Elkins with legal representation.

In substance, however, the declaration was made by the Court of Appeal in order to direct the State or the Legal Aid Commission that one or other of them should provide legal representation for Messrs Canellis and Elkins and liberty to restore the matter to the list was given in order to assert the Court's supposed jurisdiction to stay the Inquiry if legal representation were not provided. Kirby P. said that, if necessary the Court would order a stay of the Inquiry "until it was plain that it would be conducted under conditions that conformed to the necessities of procedural fairness". The Court of Appeal had in truth no jurisdiction to give the direction inherent in the declaration to the State or the Legal Aid Commission nor, in my opinion, did the circumstances authorize an order, or threatened order, to stay the Inquiry if legal representation were not provided.

The Commissioner was under a statutory duty to conduct the Inquiry and that duty was not conditioned on the provision by the State or by the Legal Aid Commission of legal representation for Messrs Canellis and Elkins. The Inquiry was ordered to inquire into matters relating to Mr. Kalajzich's conviction. The Commissioner's duty to conduct the Inquiry was not to be abrogated by a failure by the State or by the Legal Aid Commission to provide legal representation for Messrs Canellis and Elkins.

Counsel for Messrs Canellis and Elkins sought a supporting analogy for the present case in Dietrich v The Queen [22] . In that case, a majority of the Court held that a person charged with a criminal offence has a right to a "fair trial" and that the trial of an unrepresented and indigent person charged with a serious criminal offence would generally be "unfair" [23] and should not proceed except in exceptional cases or compelling circumstances [24] . It was contended that, as legal representation was essential to procedural fairness in the circumstances of the present case, the inquiry should not proceed until legal representation for Messrs Canellis and Elkins was assured. For my part, I would not extend Dietrich beyond its necessary field of application. For reasons which I advanced in that case, [25] I would deny the court any jurisdiction to control the decisions of the executive government in providing legal aid except where the decision to refuse legal aid is judicially reviewed as being beyond or in abuse of power. In Dietrich, I expressed the view that a court may not lawfully refuse to exercise its criminal jurisdiction merely because the executive government has failed to provide an accused person with legal representation [26] . Although that was a minority view, the reasons which I there advanced for denying the correctness of an order staying a criminal trial until legal representation is provided to an accused apply with even greater force to a Commissioner appointed under s. 475 to conduct an Inquiry.

1. (1992) 177 C.L.R. 292. 2. ibid., at pp. 311, 357, 374-375; and see p. 331. 3. ibid., at pp. 311, 357. 4. ibid., at pp. 323-325. 5. ibid., at p. 324.

The manifest purpose of s. 475 is to provide the means by which the Governor or the Supreme Court, as the case may be, is to be informed about any doubt or question that has arisen as to the guilt of a convicted person or any mitigating circumstance in the case. The person appointed to conduct the Inquiry is directed to summon and examine on oath all material witnesses and to transmit the depositions "as soon as shall be practicable" together with a report of the conclusions to be drawn therefrom to the Governor or to the Supreme Court, as the case may be. The duty to comply with the statute is not expressly or impliedly qualified by or conditioned upon the legal representation of any witness who is summoned to give evidence. The interests of a witness in the conduct of an Inquiry may be substantial but they are different in kind from the interests of an accused person in a criminal trial.

If any analogy were to be drawn between Dietrich and an Inquiry under s. 475 of the Crimes Act, the analogy would be between the interests of the accused person in a criminal trial and the interests of the convicted person whose guilt of the offence for which he has been convicted is the subject of the s. 475 Inquiry. In this case, Mr. Kalajzich's interest in having the Inquiry conducted into his guilt would be prejudiced by an order staying the Inquiry. Clearly his interests in having the Inquiry conducted should prevail over the interests of witnesses at the Inquiry. It is satisfactory to note that, although that consideration is not the reason why the appeal should be allowed, it is the result of allowing the appeal.

There was no failure on the part of the Commissioner to accord procedural fairness to Messrs Canellis and Elkins and for that reason I concurred in the making of an order allowing the appeal.