New South Wales v Canellis [1994] HCA 51

High Court of Australia Mason C.J. Brennan, Dawson, Toohey and McHugh JJ. New South Wales v Canellis [1994] HCA 51

ORDER In each case:

(1) Appeal allowed.

(2) 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 O'Keefe C.J. Comm. D.

(3) In lieu thereof, order that the appeal to that Court be dismissed with costs.

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

The following written reasons were published:—

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:

Appeal allowed.

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.