Adler v The Queen

[2003] HCATrans 689

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S259 of 2002

B e t w e e n -

GEORGE ADLER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MAY 2003, AT 2.20 PM

Copyright in the High Court of Australia

MR C.V. JEFFREYS:   If your Honours please, I appear for the applicant.  (instructed by Jeffreys & Associates)

MR R.D. ELLIS:   I appear for the respondent Crown, your Honours.  (instructed by the Solicitor for Public Prosecutions (New South Wales))

HAYNE J:   Yes, Mr Jeffreys.

MR JEFFREYS:   The first matter that needs to be dealt with, your Honours, is the application for an extension of time.

HAYNE J:   What is the attitude of the respondent to that, Mr Ellis?

MR ELLIS:   I do not oppose that, your Honour, may it please.

HAYNE J:   Then time is extended, Mr Jeffreys.

MR JEFFREYS:   Thank you, your Honour.  Your Honours, this is an application for special leave in relation to part of the judgment of the Court of Criminal Appeal on 20 May.  On 20 May the Court of Criminal Appeal ordered a retrial on a ground of law and in the judgment, which is at page 121 particularly of the application book, their Honours said this at paragraph 137:

In these circumstances it is unnecessary to consider Ground 8.

HAYNE J:   Ground 8 was an unsafe, unsatisfactory ground?

MR JEFFREYS:   That is so.

HAYNE J:   And the question is, did the Court in considering the proviso when considering the consequence of the misdirection, engage in a review of the facts sufficient or appropriate to lead to the determination that it reached, that the proper order was retrial rather than acquittal?

MR JEFFREYS:   Yes, your Honour.

HAYNE J:   That is the nub of it?

MR JEFFREYS:   That is the nub of it.

HAYNE J:   What do we do with that nub once we have identified it, Mr Jeffreys?

MR JEFFREYS:   First of all, the Court of Criminal Appeal did not articulate that they in fact considered ground 8.  In fact, they said they did not deal with ground 8.  Now, this Court in Jones – and that is with the bundle of papers that your Honours have and it is behind tab 3 of that bundle – at page 411 said this:

A court of criminal appeal has jurisdiction to hear and determine all grounds of appeal which are raised and argued in support of an appeal by a convicted person who seeks an order quashing his conviction and entering a verdict of acquittal.  As it is the duty of a court of criminal appeal to exercise its jurisdiction when that jurisdiction is invoked, the court must hear and determine each ground of appeal which is raised and argued unless the ground is plainly untenable or the party raising it succeeds on another ground.

Further down at about point 8:

But the court cannot fail to hear and determine tenable grounds raised and argued in support of a verdict of acquittal merely because the court accepts other grounds of appeal which result in quashing the conviction and an order for retrial.  A court of criminal appeal which confines it judgment in that way fails to exercise fully its jurisdiction and the appeal remains partially undetermined.  The order for retrial cannot be supported, for that order is not appropriate if the appellant is entitled to a verdict of acquittal.

Most importantly, in my respectful submission, the Court said this at page 414 – the Crown had argued in Jones that reading the judgment of the Court of Criminal Appeal they had determined that the ground was in fact untenable.  The Court said this at page 414:

First, it is submitted that the Court must have considered and rejected the applicant’s arguments for acquittal in reaching the conclusion which it did.  But the reasons for judgment of the Court of Criminal Appeal clearly state that two grounds only were determined and those two grounds were identified precisely.  The grounds which, if accepted, would have led to a verdict of acquittal were not determined.  Next –

and this is important, in my respectful submission –

the Crown submits that the grounds which the applicant raised in support of a verdict of acquittal were plainly untenable.  If this were the conclusion at which the Court of Criminal Appeal had arrived, no doubt the Court would have said so.  The Court did not say so.

And that is the very point, in my respectful submission, in this case.  If your Honours go to what the Court of Criminal Appeal said in the judgment qua the proviso, there were effectively before the jury two contentions mounted on the part of the applicant, the first being that he had made the telephone calls from the gaol.  The second, and it is not corollary to it or secondary to it as my friend says in his submission, but another matter which the jury needed to consider, was whether or not whatever took place between the complainant and the accused, that the moneys were paid consequent upon some sort of agreement or position which was otherwise than the way that the Crown had charged its case.

The Court of Criminal Appeal when dealing with the proviso first of all speak about the proviso at paragraph 130, which is at page 119 of the application book, “The test for application of the proviso”, and they continue down that page.  Then more importantly, your Honours, at page 120, paragraph 132:

The major part of the Crown case depended upon the jury accepting Ms Konsuo’s evidence (a) that the person who made the calls was the appellant –

Now, that was a matter which clearly the jury had found –

(b) that the alleged representations in relation to the investment were made by the appellant and (c) that the moneys were paid by Ms Konsuo as a result of the representations. 

At 133, when their Honours are considering the proviso:

The Crown case that it was the appellant who made the calls was very strong.

So they differentiate between the strength of the prosecution case qua the actual phone call, as opposed to what the transaction or what was the agreement between the parties as ‑ ‑ ‑

HAYNE J:   The Court of Appeal conclude that the finding that the appellant made the calls was inevitable.  They may be right or wrong, but that is step one.  Yes.

MR JEFFREYS:   Yes.  So I cannot take that any further.

HAYNE J:   But then they go on, do they not ‑ ‑ ‑

MR JEFFREYS:   Then they go on, your Honour, in my respectful submission, and they say this:

Ms Konsuo’s evidence that the appellant had represented that the money was for an investment was supported to some degree by Ms Clay’s evidence that Ms Konsuo had referred to an investment “through” the appellant in the telephone conversation –

and then, more importantly:

Otherwise it was the evidence of Ms Konsuo as to what was said in the telephone conversations between herself and the appellant and the documentary evidence such as the cheque butts and the diaries.

Now, it is important, if one goes back to ‑ ‑ ‑

HAYNE J:   But pausing there, do I understand the Court of Appeal there to be saying that the proviso cannot be applied because it depended on what the jury made of Ms Konsuo’s evidence?  Is that the burden of what they are saying?

MR JEFFREYS:   Yes.

HAYNE J:   If that is so, why does it not follow inevitably that they could not have said unsafe, unsatisfactory?  If it is a question for jury assessment what they make of a principal witness, perhaps the principal witness’ evidence, not only is it apparent that the Court of Appeal may be right in saying the proviso is excluded, why does that not necessarily exclude unsafe, unsatisfactory?

MR JEFFREYS:   Because this Court has mandated in M that where one has such a ground, it is for the Court to make its own independent assessment of the evidence.

HAYNE J:   But in the context of a leave application, what is it that requires a grant of leave?  Is it the interests of justice generally, the interests of justice in the particular case?  Why should we get leave, in effect, to say to the Court of Appeal the reasons should have articulated what is apparent from them anyway?

MR JEFFREYS:   In my respectful submission, clearly if the Court of Criminal Appeal had said that there was a very strong case so far as the lack of loan was concerned, that might be one thing, but that is not what they said, your Honour, in my respectful submission.  If I can take your Honours to, first of all – what has to be taken into account – and it is clear from the evidence in the summing up and also in the judgment – is that, on the one hand, there was the evidence of Ms Konsuo and, on the other hand, the documentary material that was generated at some stage before the accused was charged, all documentation or a great deal of the documentation that gave an evidentiary matrix to support the evidence of Ms Konsuo was, it was established or it was able to be established, a lot of that material – if I can go about it this way, the most important pieces of objective material was how Ms Konsuo drew the cheques.

There were two systems of cheques.  There was what was called a “cashtrack system” which is like a Kalamazoo system, where one draws the cheque and it is all written on the cash book.  So far as that was concerned, there was no mention of Adler, there was no mention of cheques, there was “See Vera re Amatrav”.  Now, Amatrav was Ms Konsuo’s private company and she said in her evidence that if it was a personal expense, she would write “See Vera” or “Amatrav”.  So far as the cheque butts were concerned, the cheque butts were written not all at the same time.  So that, as I say, we have the cashtrack aspect, now we are on ordinary cheque butts. 

On the cheque butts, everything which would point to investment or Adler or shares was not written at the same time as the rest of the butt.  In fact, Ms Konsuo gave evidence that she was colour blind.  But each and every entry of “Adler”, “Investment”, “AC Heul” or “shares” which was written on the cheque butt at a time after the cheque had been written – and that was the evidence of the expert – was all in the same coloured pen.

So there was material which the Court of Criminal Appeal ought to have considered in relation to those sorts of matters which would cut across the evidence of Ms Konsuo qua whether or not it was some sort of loan arrangement between her and Mr Adler or a complete fraud.  Everything that pointed to a fraud, the documentary material, was able to be said to be argued it was ex post facto the particular event.  She was not a diarist.

HAYNE J:   Those matters made the burden of her oral testimony critical, did they not?

MR JEFFREYS:   Yes, your Honour.

HAYNE J:   Why are those not quintessentially jury questions, rather than Court of Appeal questions saying there is but one verdict that was inevitable?

MR JEFFREYS:   Well, I go back, if I may with the greatest respect, to Jones. 

HAYNE J:   I understand the force of the Jones argument.  I understand that, but we are at the logically prior question of whether leave should go,

that is, whether it is arguable that there is some miscarriage of justice or the interests of justice require a grant.

MR JEFFREYS:   If your Honours go to what this Court said in Palmer, which is in the bundle of documents that I have provided ‑ ‑ ‑

HAYNE J:   I am deeply familiar with Palmer.  That, I think, was probably given soon after my appointment and concerned a judgment in which I was a party in the Court of Appeal of Victoria, so I am deeply familiar with Palmer, Mr Jeffreys.

MR JEFFREYS:   Yes, your Honour.  Well, it is clear that Palmer looked at the question of whether the Court of Criminal Appeal in Victoria had effectively applied the test in M, and it clearly had not.  One of the things that the judges in the Court of Criminal Appeal in Victoria said was that, “This was all very believable.  It was a matter for a jury.  The jury has decided it.  It is not for us to independently assess.”  M says that is wrong.  I cannot put it any higher than that, your Honour.  Those are my submissions.

HAYNE J:   Yes, thank you, Mr Jeffreys.  Mr Ellis, we need not trouble you.

We are not persuaded that it is arguable that there has been any miscarriage of justice in this matter.  Neither the interests of justice generally, nor the interests of justice in the particular case warrant a grant of special leave.  Special leave is refused.

AT 2.35 PM THE MATTER WAS CONCLUDED