Adler v The Queen

[1993] HCATrans 23

•

.

~

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S80 of 1992

B e t w e e n -

GEORGE ADLER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Adler 1 11/2/93

AT SYDNEY ON THURSDAY, 11 FEBRUARY 1993, AT 10.15 AM

Copyright in the High Court of Australia

MR B.T. STRATTON, QC:  May it please the Court, I appear for

the applicant with my learned friend,

MR S.J. ODGERS.	(instructed by Trevor Nyman and
Company)

MR R.O. BLANCH, OC:  May it please the Court, I appear for

the Crown with my learned friend, MR T.R. HOYLE.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

BRENNAN J:	Mr Stratton?
MR STRATTON:	Your Honours, this is an application for

special leave from the New South Wales Court of

Criminal Appeal. It surrounds an application which

was originally before a judge in the District Court

for a stay of proceedings.

The very brief circumstances leading to that application were that in 1983 there were a number

of business dealings concerning the development of the particular property in Sydney. As a result of those business dealings four persons were put

before the court on a number of charges. Those

persons involved the applicant, his wife, a

Mr McDonald and a Mr Rubner. All four were

committed for trial in relation to a number of

varying offences.

Between the time of the committal for trial

and the application before the District Court

judge, Judge Nash, the applicant's wife pleaded

guilty to some offences and was dealt with, and

Mr Rubner pleaded guilty to some offences and he

was dealt with as well. That left, of course, the

applicant and Mr McDonald.

The Crown then presented an indictment

involving both the applicant and Mr McDonald. That
indictment included a charge of conspiracy against

both of them, alleging that they conspired together

to cheat and defraud a certain corporate entity

involved in these transactions.

The indictment also included a number of

substantive charges against Mr Adler, only. Those
substantive charges were common to the conspiracy
in that they also involve business dealings
concerning the same business transaction, but they
did allege, not offences which could be said to be
part of the actual conspiracy - they were separate

events.

When the matter came before Judge Nash, after

hearing argument from both sides, he stayed the

count involving the conspiracy but he refused to

Adler 11/2/93

stay the other counts against the applicant. There
was then an appeal to the Court of Criminal Appeal

in relation to that decision of Judge Nash and the

Court of Criminal Appeal held that the decision of

Judge Nash was, in fact, a correct one.

The crux of our submission in this case,

Your Honours, is that the Court of Criminal Appeal,

in its decision, did state something that was an

error. What the Court of Criminal Appeal said was

this during the course of its decision:

The fact that a witness who is potentially

able to corroborate an accused is, for one

reason or another, such as death,

disappearance or disability, unavailable at

trial, does not normally produce the result

that the accused cannot obtain a fair trial.

The reason for the application for the stay of

proceedings in this case was that it was said by

the defence that there was a witness vital to the

defence who had died. That particular witness died

in January 1987. What happened before the death of

that witness, though, was that the witness was

examined in an inquiry under the Companies Code,

examined at length, and there was subsequently a

report made as a result of the various examinations

of various witnesses.

In addition to that, in the latter half of

1986, that particular person made dying depositions as a result of him being dangerously ill, obviously

at that particular time.

BRENNAN J:  Mr Stratton, we have read the judgments in this

case, and do you not have to get over the view
expressed by Judge Nash that Austin could not have

given any real evidence in respect of the counts

with which you are now concerned?

MR STRATTON:  We would submit, Your Honour, that view of

Judge Nash was, in fact, incorrect.

BRENNAN J: Well, it may have been, but where is the special

leave point? If it is correct, is there any

special leave point?

MR STRATTON: There is, Your Honour, because what was said

by the Court of Criminal Appeal, during the course

of its judgment, as I put to Your Honours before, was that under normal circumstances, if a witness

who was potentially able to corroborate an accused

person, dies, that is not normally a reason for a

stay of proceedings.

BRENNAN J:	You say it is?
Adler	11/2/93

MR STRATTON:  We would submit, prima facie, it would be. We

would submit, prima facie, that if an accused

person is charged with whatever offence, and he is

left to make a denial of that particular offence on

his own, without any support, a jury might take a
particular view of it - they might disbelieve him,

they might believe him, too. Anything is likely to

happen, we understand that.

But, if somebody else comes along, and

somebody else who is shown not to have a vested

interest in the outcome of the trial, and that

other person can come along and corroborate what

the accused has said in his defence, a jury might
well take a completely different view of the

circumstances. If he is denied the advantage of

calling that witness to corroborate his version,

his denial of his guilt, it might - it could well,

and prima facie it might well rob him of a chance

of acquittal that he would otherwise have.

So we submit to Your Honours that it was

incorrect of the Court of Criminal Appeal to say that, that normally if a witness cannot turn up,

for whatever reason, a witness who can substantiate

the accused's denial - that that normally would not

create a produce a situation where an accused

cannot obtain a fair trial. That is just not the

law, we would submit to Your Honours. We would

submit that the law is quite different to that.

In this particular Court, in Jago's case, the

Court, of course, went to great lengths to show that in that case there was no prejudice_ to the

accused person, and that the accused person would,

it appeared, get a fair trial, notwithstanding the
delay that was involved, and the delay of itself
was not necessarily a reason or was not a reason to

grant a stay of proceedings.

DEANE J: That is the difference between cases such as Jago

and this case. In Jago, you had unjustifiable

delay on the part of the Crown, and the Court was

concerned to identify the consequences of that

delay. In this case, at the time the relevant
witness died, there had not been that type of delay

on the part of the Crown.

MR STRATTON: It was not suggested, Your Honour, that the

reason for the delay was some negligence of the

Crown, in this case.

DEANE J:  I mean, if the witness had died the day before the

trial, in this case, you would have had an arguable

case that the Crown's delay was unjustifiable and had led to this consequence. But at the time the

witness died, on no approach could it be said, that

Adler 4 11/2/93

the Crown had been guilty of culpable and

unjustifiable delay. Now, that being so, you are

forced, as you are, to put a completely new

proposition and that is that regardless of the

circumstances, the death of a witness who might

have, or would have, helped the accused, means that

there can be no fair trial. Have you any authority

that supports that very wide proposition?

MR STRATTON:  Only this, Your Honour, that in Jago's case,

what the Court said, from time to time, that there
was no prejudice because of the delay of itself,
such as the death of a witness, and the Court and
the various Judges in the judgment of Jago said

that on a number of occasions throughout the

judgment.

Here, of course, you have got that situation

where there has been the death of a witness, and we
would submit, Your Honours, it does not matter much

really whether that particular witness, if he is a

potentially vital witness for the defence, died a
day before the trial or whether he died three years before the trial. If he is dead and he cannot give

evidence, or for some other reason he cannot be

there, and he is this type of vital witness, that

the accused cannot get a fair trail, cannot be seen

to get a fair trail.

BRENNAN J:  Does that mean that if there is a shoot-out

between some robbers and the police, and one of the

robbers is killed, that his co-accused, his co- offender, cannot be tried because he might have

been able to assist in the defence of self-defence?

MR STRATTON:  No, Your Honour. I cannot - - -

BRENNAN J:  What is the difference?

MR STRATTON: There is a difference, in this particular

case, in that these were business transactions that

were entered into by a number of people.	What the
accused will say, and has said up to date, is that,	"Well, whatever I did was not done with a dishonest
intention. It might be that money was lost, but I
did not do anything with a dishonest intention".
This witness could have come along and said, "Well,
I was party to these dealings too, and I can say
that we, jointly, had no dishonest intention".

McHUGH J:	He could not say that.
MR STRATTON:	He could not say what was in the accused's

mind, Your Honour, no, but he could say what was

going on and he could say the manner of the

dealings, the circumstances under which the

dealings were made, what was said during the course

Adler 11/2/93

of the dealings, what arrangements were made
between the various parties, what circumstances

existed at the time, what the economic climate was, what the climate was in relation to the particular individuals, the corporate entities involved - he

could say all of those things.

McHUGH J:  The trial judge took the view that he should not

really say anything more than what was known to

exist in any event.

MR STRATTON:  I understand that, Your Honour. The trial

judge did say that, and the Court of Criminal

Appeal ·said that too but, of course, I cannot do

much about that. I cannot say, "We disagree with

that, I want this Court to hear all that now and

determine whether or not he was, in fact, such a
vital witness, because I am not allowed to do that
now. All I can do is point to a error of law." It

might be, if this Court was to review the

situation, and take into consideration the facts,

this Court might come to the same conclusion too,

that that person was not such a vital witness,

notwithstanding that he was a vital witness in

relation to the conspiracy matter, as the trial

judge held.

We say, with respect, Your Honours, that the

Court of Criminal Appeal went on the wrong tangent, the wrong proposition of law in saying it is just
not normally the case that, if such a witness

cannot come, that is the end of it. It appears

that what the attitude of the Court of Criminal

Appeal was that that there was some presumption

against this - if, say, a vital witness is missing

or, you know, you have still got a big job in front

of you to prove that there should be a stay because

the law is that that is not normally the case.	We
would submit that that is not right.	We would

submit that this Court, both in Jago and Dietrich,

went to great trouble to say that a trial must be a

fair trial.

McHUGH J: That is true, but the Court of Criminal Appeal

said that unavailability of a witness by death,

disappearance or disability, does not normally

produce the result where the accused cannot obtain

a fair trial. Do you seriously argue that that is

wrong?

MR STRATTON: Yes, Your Honour, we would say that, prima

facie, the case is that if a vital witness to the

defence is unavailable, there would be no fair

trial, prima facie.

McHUGH J:  What is the remedy? A stay until the witness is

found and if the witness is dead, a permanent stay?

Adler 6 11/2/93

MR STRATTON: If the witness is dead, a permanent stay.

McHUGH J:  We might as well close the criminal courts on

that basis. There would be a lot of trials that

would not go on for hearing?

MR STRATTON:	It depends, Your Honour, on whether or not the witness is vital. Your Honour, if the truth is
that this witness is so vital, and would be the
type of witness that would be considered by a jury
to be a witness of truth and the jury believe him,
whereas the accused on his own, standing there in the dock or in the witness-box on his own, saying
"Well, I deny my guilt", the jury might not believe
him, but if this other witness is such a witness of truth that a jury would believe, the trial cannot
be a fair one.  Your Honour, irrespective of
whether there would be a lot of trials not go on,
if that is the position, it cannot be a fair trial.
The accused would be robbed of the proposition
of -
McHUGH J:	It may be even if the Crown witness was

unavailable, it was not a fair trial.

MR STRATTON:  The Crown can only do what it can do.

BRENNAN J: It puts the life expectancy of witnesses at a

premium, does it not?

MR STRATTON:	Of course, as was said in those other cases too, that if it was something that the court could
fix by way of direction, et cetera, et cetera, the Court cannot fix this by way of direction.

BRENNAN J:  Why not? Why cannot the court give a direction

to a jury pointing out, in the strongest terms, the

unavailability of a witness who might have

corroborated, due to death? And why would not a

jury take that firmly into consideration?

MR STRATTON: It is a lot different, with respect, Your

Honour, from a judge saying that to the witness

being in the witness-box - - -

BRENNAN J:	Of course it is.
MR STRATTON:	- - - and being there, giving evidence, and

being cross-examined.

McHUGH J:  I am not so sure about that. In fact it might

even be to your advantage - you had to call

Mr Austin, a few of things might have been

extracted out of him in cross-examination that

would not have helped your case too much.

Adler	11/2/93
MR STRATTON:	Our submission is that it, really, in

practice, cannot be fixed. In fact, I wonder

whether a judge would, in fact, do that, if

requested.

BRENNAN J: There are some judges who obviously cannot think

of directions like that, but that does not apply to

all the judiciary.

MR STRATTON: No, Your Honour. In fact, I would submit

there would be a lot of judges who would, in fact,

not give such a direction. You might say that in

your own address to the jury at the end of the
case, ·but that obviously would not carry as much weight as a direction by the judge. That is the

highest I can put that argument, anyway. Our

submission is that that proposition by the Court of

Criminal Appeal is wrong and the Court of Criminal

Appeal gave the applicant an unfair hurdle to jump

over, and he could not jump over it because that

was the view of the Court of Criminal Appeal, and

it is wrong.

The other submission, Your Honour, is that fairness, of course, in trials has not only now

become very important, but has always been very

important. It has become particularly important

now because of recent decisions of this Court. The

decision of this Court in Jago, of course, was one

where this Court went to great trouble to spell out

the fact that, in that case, there would be no
unfairness and this Court went to great trouble to

spell out the fact the reasons why there would be

no unfairness.

The same occurred in Dietrich. This Court

went to great trouble to spell out that it was

unfair, in that particular case, and not only spelt

out in great detail the fact that it was unfair,

but spelt out in great detail the very reason why

it was unfair.

MR BRENNAN:  Mr Stratton, we are familiar with the cases to

which you refer. Your proposition, as I understand

it, is that the Court of Criminal Appeal made an

error of law in saying that, prima facie, there is

no unfairness shown simply by reason of the death

of a witness. That is the proposition of law and

so far as the facts are concerned in this case, the

judge at first instance was wrong and the Court of

Criminal Appeal was wrong in saying that Mr Austin could not have given any material evidence. Are

those your points?

MR STRATTON:  Yes. There is just one more that I am just

about to mention Your Honour. What the Court of

Criminal Appeal did, unlike Jago and Dietrich -

Adler 8 11/2/93

MR STRATTON: Yes. There is just one more that I am just

about to mention Your Honour. What the Court of

Criminal Appeal did, unlike Jago and Dietrich -

they did not say why this was unfair at all, or why

there was no unfairness. All they said was, "I

concede no error on part of the judge". Our

submission is that it was a court of review, and

what the court of review should have done was to

spell out why they came to that conclusion that

there was, in fact, no unfairness.	And that is the
last point.

BRENNAN J:  We need not trouble you, Mr Blanch.

An appeal in this case would enjoy no prospect

of success. It is therefore inappropriate to grant

special leave to appeal. Special leave to appeal is

refused.

AT 10.33 AM THE MATTER WAS ADJOURNED SINE DIE

Adler 9 11/2/93