Assignment 2 Case Analysis Sean Bassett PDF

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Foundations of law Case analysis: The state of New South Wales v Canellis (1994) 181 CLR 309

New South Wales v Canellis.

Sean Bassett ID: 110291518. Bachelor of Criminal Justice.

Procedural history The procedural history of this case goes back to the Megan Kalajzich murder case where George Canellis who was known as a hitman/gun for hire had accepted a contract to murder Megan Kalajzich. Mr Canellis received a firearm and five thousand dollars cash as a down payment for the murder and was promised an additional twenty thousand upon completion12. After getting cold feet, Mr Canellis reneged on the deal and returned the firearm but kept the cash. Someone else got hired (Bill Vandenberg) and completed the contract, killing Mrs Kalajzich in her home in the early hours of January 27th, 198634. Mr Canellis was afraid that he would go to jail due to originally saying yes to the contract and contacted detective Kevin Woods and agreed to give the detective all the information that he knew in turn for immunity against the murder. This in turn got the ball rolling with Bill Vandenberg confessing to the murder of Mrs Kalajzich. Bill then turned on his best friend and told the detectives that the man responsible for the organisation of the murder was Mr Warren Elkins. Mr Elkins then turned against Bill and told the detectives that he organised the murder but didn’t pull the trigger. Bill Vandenberg was then charged with murder, attempted murder, conspiracy to murder and assault56. Warren Elkins was charged with conspiracy to murder Bill Vandenberg after Mr Andrew Kalajzich asked Elkins to murder Vandenberg as he had information that he could be indicted for. Because of this, Elkins was also charged with conspiracy to pervert the course of justice. Both Elkins and Vandenberg then gave information that gave detectives enough evidence to attain a ex officio indictment and make Mr Kalajzich face justice for establishing the murder contract for Mrs Megan Kalajzich’s murder. Andrew Kalajzich was found guilty and

1 R V Kalajzich (1989) 39 A Crim R 415. 2 "The Mornington Monster - Crime Investigation Australia | Full Documentary | True

Crime", Youtube (Webpage, 2018). https://www.youtube.com/watch? v=g2cBqAIDGeg&t=1599s. 3 R V Kalajzich (1989) 39 A Crim R 415. 4 "The Mornington Monster - Crime Investigation Australia | Full Documentary | True Crime", Youtube (Webpage, 2018). https://www.youtube.com/watch? v=g2cBqAIDGeg&t=1599s. 5 R V Kalajzich (1989) 39 A Crim R 415 . 6 "The Mornington Monster - Crime Investigation Australia | Full Documentary | True Crime", Youtube (Webpage, 2018). https://www.youtube.com/watch? v=g2cBqAIDGeg&t=1599s.

New South Wales v Canellis.

sentenced to life imprisonment. Both Bill Vandenberg and Warren Elkins were sentenced to life imprisonment7.

A description of the dispute On the 3rd of November 1993, the commissioner (J. P. Slattery A.O., Q.C.) gave leave for counsel to appear in the stead of Mr Canellis and Mr Elkins to appear in a court inquiry. The inquiry was formed on the basis that Mr Kalajzich accused Mr Elkins and Mr Canellis of giving false evidence which lead to the decision to sentence Mr Kalajzich to life in prison. If the accusations were found to be truthful, it would terminate the immunity of Mr Canellis. Mr Kalajzich went on to tell the commissioner his side of events which in turn started to point to Mr Canellis being involved in the murder of Mrs Kalajzich and not just a bystander89. Mr Elkins and Mr Canellis then want to present their testimonies and prove that they were in fact telling the truth. But they wouldn’t be as effective without the benefits that legal representation brings. Elkins and Canellis could not afford legal representation out of their own pocket, the legal aid commission did provide the first respondents with a total of twenty-two thousand dollars to help procure legal advice and representation. With the funds being quickly spent, they then proceeded to take the matter to the commissioner. Due to having no funds, Mr Elkins was forced to represent himself in person. Due to changing his name because of the earlier case, this hearing could jeopardise his new identity but his new job3. The counsel for representing Mr Canellis then asked to stay the hearing because he did not have any legal representation and could not be represented fairly. The council assisting in the inquiry were against this application as there would be around two months before Canellis and Elkins were to state their case and should be able to afford legal aid by then. The commissioner stated that he would do what ever was in his power to provide equal representation on both sides of the inquiry, the proceedings then commenced in the supreme court3. Mr Canellis and Mr Elkins application to have the legal representation paid by the state of New South Wales was rejected. Kirby P. of the New South Wales Court of Appeal rejected the argument that the first respondents (Canellis & Elkins) the right to have publicly funded legal representation. He did however, consider exercising the common law principles of procedural fairness. Kirby P.’s reasoning was that the commissioner didn’t think of the first respondents entitlement to a fair trial and that impaired the legal validity of his decision. The two other members of the Court of Appeal Sheller J.A. and Clarke J.A. also agreed with Kirby P3.

7 R V Kalajzich (1989) 39 A Crim R 415. 8 New South Wales V Canellis (1994) 181 CLR 309. 9 "New South Wales V Canellis", Eresources.Hcourt.Gov.Au

http://eresources.hcourt.gov.au/showbyHandle/1/12433.

New South Wales v Canellis.

Kirby P.’s objective was to re-route the arousal of the decision to allow applications for a stay by the first respondents by stating that an intricate set of circumstances must be met in order to claim for financial relief3.

Due to the first respondents being unable to have access to legal representation is grounds for a breach in the legal requirements of a fair trial and constitute a breach of justice. Kirby P. the stated that the commissioner wouldn’t have any authority to continue the inquiry unless Mr Canellis and Mr Elkins received legal representation. On the 5th of May the court made the order that the inquiry would not proceed until both first respondents were equally represented by legal aid and that legal representation was guaranteed3.

An analysis of the legal reasoning The legal reasoning behind this case revolves around the right to a fair trial. Canellis and Elkins quickly exhausted the small amount of money they were given for legal representation. Due to not being able to afford this anymore it constitutes as a breach of the legal requirements of procedural fairness. This means that the commissioner did not have the power to continue the case unless legal representation was available for the respondents. s. 475 of the Crimes Act 1900 (N. S. W.) is a statute that applies to criminal offences in the state of New South Wales. Section 475A of the act is that offences must be punished similarly. This is relevant in the Canellis because one respondent (Elkins) might have needed to physically represent themselves in the hearing which would have jeopardised his newly acquired identity. If one respondent had to physically represent himself, so did the other (Canellis) which couldn’t happen due to not being able to have the legal representation which was needed for a fair trial which is a common law right10. The right to a fair trial has been described as a central foundation of the criminal justice system in Australia. The right is designed to help the wrongly accused prove their innocence. This right has many attributes that have been set into human rights statutes, international conventions and treaties as well as the bill of rights. Dietrich v. The Queen (1992) HCA 57, 177 CLR 292 established the principle that an individual that has been charged with a serious criminal offence should have their trial stayed until such a time that they can afford legal representation. This principle adds to the right to a fair trial. The Dietrich principle was then assumed to be pertinent to the Canellis case due to the binding precedent of Dietrich but, The Dietrich case is not applicable even though it states about procedural fairness in legal representation at a criminal hearing and not an individual at an inquiry. Due to this the Dietrich case could not be drawn from11.

10 S. 475 of the Crimes Act 1900 (N. S. W). 11 Dietrich v. The Queen (1992) HCA 57, 177 CLR 292.

New South Wales v Canellis.

In essence, this case is based on s. 475 of the Crimes Act 1900 (N. S. W.). When the first respondents burnt through the money given by the Legal Aid Commission, they appealed to have the state of NSW foot the bill which was rejected. It was proved that both first respondents didn’t have the intellectual capacity to represent themselves, so the council for one of the respondents asked for a stay of the hearing as a matter of fairness and equality. The court of appeal rejected that section 474G gave the respondents the right to publicly funded legal representation. The Solicitor-General then backed the court of appeal stating that the common law of Australia doesn’t recognise the entitlement of an individual at trial, let alone a witness (Canellis & Elkins) need to be provided with legal aid and representation at the state of New South Wales’s expense. The Solicitor-General didn’t acknowledge the Dietrich v. The Queen case at all. Due to the first respondents not having legal representation, the hearing was stayed until it would be available, and a fair trail would be able to take place1213.

Critical analysis of the case I believe this case was decided in an appropriate manner. The first respondents needed legal aid to be able to get the correct point of view across of their innocence. Mr Kalajzich had quite a lot of money behind him and would be able to afford the best lawyers money could buy at the time. Going up against him would be hebetudinous as they wouldn’t be able to go toe to toe with a lawyer fresh out of law school let alone one of the best in the country. I do agree that there was a breach of justice in that the respondents were not able to procure funds even though the hearing was to resume in two months. Staying the inquiry was the best course of action. I think that Dietrich v. The Queen should have been used as a binding precedent even though that case did not state anything about a witness to an inquiry and only to an individual at a hearing that was charged with a serious criminal offence. There should have been more leniency there. It is evident that the judges did their due diligence when it came to the right of a fair trial. The order given was just and would allow both parties to have legal representation and equal footing when the inquiry would resume. The New South Wales v. Canellis case cited around 50 cases, some stemming back to Twist v. Randwick Municipal Council which was back in 1976. There was also over 30 cases citing NSW v. Canellis That date to the ADF15 v. the minister for immigration and border protection in 2018, the Canellis case has proven to be one that is still cited today.

12 S. 475 of the Crimes Act 1900 (N. S. W.). 13 Dietrich v. The Queen (1992) HCA 57, 177 CLR 292.

New South Wales v Canellis.

1.Does this case still represent good law, or put another way, how has this case been treated by subsequent decisions? Please locate 2 decisions that have discussed NSW v Canellis and explain how it was treated and why? The first case I came across was the Attorney-General for the state of South Australia v. Kowalski. The Canellis and Dietrich cases were discussed because Kowalski had similar issues with legal representation. He had no valuable assets and could not receive a fair trail without the aid of legal representation. Then being bound by the decision of the High Court in the Canellis case, a stay was not available in civil proceedings due to the individual lacking funds to acquire the legal representation required. The application was dismissed14. The second case I have chosen is The Commonwealth of Australia v. Davis Samuel Pty Ltd (No 3). This case also refers to both Canellis and Dietrich under matters of the right to a fair trial. Both cases were discussed due to an individual being tried for a serious criminal offence in the case of Dietrich v. The Queen and the other case, where a witness is at an inquiry. All of the cases have the absence of legal representation in common. The two distinguishing factors between Dietrich & Canellis is that one represents criminal proceedings and the other civil. Both cases still represent good law and has helped Judges in viewing both precedent cases and attaining the right course of action moving forward15. Both cases Are different but similar in their own ways. Dietrich has set the precedent for future cases that have individuals that can not procure their own legal representation in a serious criminal trial. Canellis has set a precedent that witness’s at an inquiry that have no legal representation should stay until they have acquired legal aid. 2. Is the Judicial Inquiry, established under s 475 of the Crimes Act 1900 (NSW), an exercise of administrative/executive or judicial powers by the judge? Give reasons and authority in support of your answer. The judiciary interprets the laws, an inquiry where judge is appointed by the government to establish an investigation into matters. Judicial powers can be used in a multitude of different ways. In this case the judicial powers are executive due to the action taken by the Supreme court judge. The judicial officers job on the other hand is to report on the orders so that the executive, which is the Governor can take appropriate action. In conducting a section 475 executive action should be taken when the report of the judicial officer and/or judge’s reports have been concluded. The Governor is the only person that can deliver an executive order and dispose of the matter. If need be this Governor will liaise with the Solicitor-General to make sure the action is just. 14 Attorney-General for the state of South Australia v. Kowalski (2011) SASC 231. 15 The Commonwealth of Australia v. Davis Samuel Pty Ltd (No 3) (2008) ACTSC 76.

New South Wales v Canellis.

3. Is there an equivalent provision to the Crimes (Appeal and Review) Act 2001 (NSW) pt. 7 ‘Review of convictions and sentences’ in South Australia? Section 42 of the Magistrates Court Act 1991 (SA), and the Supreme court Civil Rules 2006 set the framework for the rights of appeal for South Australia. The full court deals with the appeals from magistrate courts and tribunals16. This is South Australia’s version of the Appeal and Review Act 2001 (NSW).17 It deals with the appeals against sentencing, conviction and on any ground deemed acceptable by the South Australian court. The details on how the appeal is considered are rigorous. The court must be satisfied that the decision that has been appealed has made a breach of justice or that there is a mistake in the law. The differences in the acts is very minimal as far as I can tell. South Australia are stringent when I comes to appeals and the application process is stricter with the deadlines.

16 S. 42 Magistrates Court Act 1991 (SA). 17 Appeal and Review Act 2001 (NSW)....