Ahmad v The Queen
[2004] HCATrans 258
[2004] HCATrans 258
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P42 of 2002
B e t w e e n -
SYED REDZA FAROUK AHMAD
Applicant
and
THE QUEEN
Respondent
Application to set aside a certificate of deemed abandonment
McHUGH J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM PERTH BY VIDEO LINK TO CANBERRA
ON THURSDAY, 5 AUGUST 2004, AT 4.33 PM
Copyright in the High Court of Australia
MR A.E. MONISSE: May it please the Court, I appear for the applicant. (instructed by the applicant)
MR P.J. URQUHART: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Western Australia))
HIS HONOUR: Yes, Mr Monisse.
MR MONISSE: Thank you, your Honour. I appear on behalf of the applicant in his application today. This application is for reinstatement of his 2002 application for special leave and related orders. Your Honour, I refer you to the outline of submissions.
HIS HONOUR: Yes, I have read those.
MR MONISSE: I would simply address you on those, your Honour. In relation to the decision of Gallo v Dawson, the applicant submits that the principles contained therein do not have as much application as those that follow in paragraphs 4 to 10 of my submission.
HIS HONOUR: Yes. Why do you say that? They both deal with litigants who have lost their statutory rights. Why should not the principles be applied? It does not mean that they would necessarily have the same weight. They may or may not, but why are they not equally applicable to this situation?
MR MONISSE: Well, for a number of reasons, your Honour. Firstly, you have those other authorities that I referred to you which appear to arguably be more on point. Secondly, the applicant has gone further down the trail in his appeal, namely, he has filed his appeal, and that is contrasted with an application for leave to appeal out of time, for instance. Thirdly, if the principles or application for special leave were to have effect at today’s hearing of the application for reinstatement, then your Honour may as well call this a hearing for special leave, but more importantly ‑ ‑ ‑
HIS HONOUR: It is only a factor, but one thing you have to face up to is that your client has now been deported to Malaysia. The only order that he could obtain if he succeeded in getting special leave and his appeal was allowed would be an order for a new trial, would it not? There would be some difficulty about that.
MR MONISSE: That may be a potential issue, your Honour, but I would respectfully submit that that hurdle can be crossed if and when it arises. The bottom line, as far as he is concerned, and hence the reason for lodging the appeal in the first place to this honourable Court, is to clear his name. The great irony is he has been deported on a character ground.
HIS HONOUR: Yes.
MR MONISSE: But as to the issues as to how he can get back into the country to clear his name if ultimately the final order of this Court is that he have a retrial should not be a barrier to him continuing on with his High Court appeal.
HIS HONOUR: Yes.
MR MONISSE: So, your Honour, I will just quickly run through paragraphs 4 through to 10. I set out at paragraph 4 the Full Court decision of Bridges v The Queen (1998) 20 WAR 59 and that was a decision of five justices of the Supreme Court of Western Australia. It is my submission that that principle that I have laid down in paragraph 4 is the determining principle for this matter and it is from there that everything followed. So the affidavit sworn by the applicant’s sister on 22 July 2004, particularly paragraphs 7 through to 13, highlighted the problems that he had receiving mail or having mail forwarded on to him. That is one thing, your Honour.
HIS HONOUR: Surely he has an obligation to inform the court of his appropriate address. If he relies on other people sending mail on, it is not a very satisfactory course.
MR MONISSE: No, and I suppose it is hard to explain away that obligation if, at the end of the day, your Honour, in terms that would be the case. However, that is why I have my submissions at paragraph 10, that we are talking about an unrepresented litigant here. Certainly, had he been represented, there arguably would have been no difficulties with that obligation being fulfilled. But he is a person who is going from a period of incarceration to restricted freedom through his work release. Presumably there are a lot of things dominating his thoughts besides the High Court appeal.
He, at least through his sister, indirectly fulfils the obligation to inform the Court of his new address. I say that is indirect because the mode of doing so was through letting the prison authorities know what his new address was on the outside. Perhaps this case would not be as strong, your Honour, had he given no forwarding address detail. That is why strict enforcement of any principle, in my submission, should not really apply in this case, particularly given the context of him being mostly incarcerated and an unrepresented litigant.
Your Honour, the principles dealing with the notice of abandonment concentrate on the issues of the applicant. The general position is that the applicant has – and I am talking generally here – on his own volition submitted a notice of abandonment and it is from there that they wish to retract it. This is taken a step further from that. The applicant in this case had no say in the notice of abandonment being filed. But if we just go back to that other level where the usual situation, at least on the authorities that I have provided to you, where the applicant himself has submitted a notice of abandonment and then seeks to retract it, in those circumstances you have those principles set out after paragraph 3.
The issue appears to be, your Honour, was any consideration given on the part of the appellant as to the merits of their appeal. As I say at paragraph 6, in summary the mind of the applicant did not go with either his or anyone else’s decision to abandon his appeal. I mean, in short, your Honour, this applicant had no knowledge whatsoever of what was going on. Perhaps it is a matter of practice for the Registry in future for matters of such a serious nature for items affecting the rights of individuals seeking to appeal to the High Court for those notifications to be sent by registered post, where there is an acknowledgement of service and receipt. That certainly was not the case here.
So, as I said, your Honour, the applicant had no idea whatsoever what was going on and arguably, through no fault of his own, if you at least accept that indirectly he informed the Court of his new address via provision of a forwarding address to the prison authorities, because up until that point in time the High Court Registry, if you look at the correspondence, had been sending mail to prisons like Acacia.
HIS HONOUR: Yes.
MR MONISSE: Your Honour, I refer you to the decision of Mullally, which curiously enough appears to be on the High Court’s list this week. In that decision Mullally was a solicitor who was given the benefit of the doubt, if you can call it that, so much so that the Crown, or the respondent, in that case did not oppose his application for reinstatement, notwithstanding that you would expect a solicitor to know that when you file a notice of abandonment that that is the end of the matter, but nonetheless the Court in Mullally - a Supreme Court decision of Western Australia - gave Mullally the benefit of the doubt and you will see in the decision that I have handed up to you on the last page paragraphs of his affidavit are affirmed in the judgment on page 376:
The only matter on my mind at the time when I signed the notice was that the appeal had to be taken out of the list cases for hearing.
9. If I had appreciated or understood that the notice was a full dismissal of the case on the merits and that it barred all future action on the appeal I would not have signed it.”
Your Honour, the applicant’s position is even worse than that because, as I said to you previously, he had no idea that this process of abandonment was being carried out against him. As I said, your Honour, it is not as though he did not provide a forwarding address to the prison authorities for correspondence to be sent to him.
Your Honour, I have also provided to you the transcript of the decision of Hodgson v Minister for Primary Industries, Water and Environment handed down on 20 November 2001 and the Justice in that case ‑ ‑ ‑
HIS HONOUR: That was me.
MR MONISSE: Thank you, your Honour. You outlined a number of reasons for allowing the matter to be reinstated and one of them was a point that the Crown was not a model litigant. Now, in this case, I cautiously submit to this honourable Court that arguably that is the case here simply by virtue of the concession by the respondent that a request was made for materials for the appeal book to the State DPP and it was conceded that that request was not complied with. So when the respondent in its submissions at paragraph 4 says that the delays were not the fault of the respondent, were arguably – at least by its own concession, that is not correct.
I notice that, while I am addressing you on the respondent’s submissions, when you look at the affidavits submitted on behalf of the applicant, the big issue appears to be trying to get a copy of the indictment. If I can surmise from the materials, my understanding of what appears to have happened is certainly at some stage the applicant had a copy of that indictment and that obviously was included in the appeal book submitted to the Supreme Court of Western Australia, but that indictment, if you at least go by the decision of the Supreme Court which was handed down in 2002, was provided a long time ago.
So the applicant seeks to apply to this Court for an appeal – for special leave and this process of gathering documents for the appeal book happens in 2003, the year following the handing down of the appeal against conviction and the decision that the Supreme Court of Western Australia made on that conviction. So I think in the context of an unrepresented litigant whose position is exacerbated by the fact that he is incarcerated, he is trying to get a copy of the indictment as well, another copy.
HIS HONOUR: Well, he has had a copy of the indictment since June 2003, but you have to say something about the merits of this case because one does not extend time in a situation like this unless there is an injustice and the case against your client is an extremely strong one. You would have to show that there is at least some arguable ground that you are likely to get special leave, because this Court is overwhelmed with special leave applications. There is a 17‑month delay between the filing of special leave applications in Perth and the hearing of the applications and to reinstate cases which have no substance is a course to be avoided. Now, what is the special leave ground that you are going to rely on? The case against your client seems overwhelming.
MR MONISSE: Your Honour, in addressing you on that I say this. If it is your view that I have to address you on ‑ ‑ ‑
HIS HONOUR: It certainly is, Mr Monisse.
MR MONISSE: Okay, that is your view, your Honour. In doing so can I say this. As far as the applicant is concerned, the gravamen of his problem with the decision of the Supreme Court of Western Australia, the Court of Criminal Appeal, is the way it dealt with two dominant issues that arose at trial for the applicant, those being the admissions into evidence of taped admissions by the police.
HIS HONOUR: The Court of Criminal Appeal held that the trial judge had erred in admitting that evidence because no exceptional circumstances existed, but they held that, nevertheless, there was no miscarriage of justice because of the strength of the circumstantial case. Why should the Court grant you special leave to appeal when the case turns on the evaluation of the evidence?
MR MONISSE: I do not want to be flippant about this but, you know, people at one sage said that Chamberlain was a strong circumstantial case and the problem with the admissions being admitted was that it enhanced the remaining circumstantial evidence against the applicant. The jury was given the opportunity and the benefit, to the applicant’s detriment, of evidence which, at least by concession of one justice of the Supreme Court, his Honour Justice Wallwork, should never have gone to the jury. That is referred to in his judgment, and the other two justices of the Supreme Court do not make a decision on that, but there is at least one justice of the Supreme Court of Western Australia saying that evidence should never have gone before the jury.
It is perhaps all right after the event, your Honour, to say that there is a strong circumstantial case, but arguably, had that evidence not been presented and not led and not allowed to have been led at trial, then the bar of reasonable doubt would, from the evidence point of view, have had a profound effect on the jury’s determination.
HIS HONOUR: But the Court of Criminal Appeal took a different view. We do not sit here as a Court of Criminal Appeal; we sit here to declare the law for the nation. Of course we are an appellate court, but the nature of the workload in this Court means that less and less will we be able to take on cases where there is even an arguable miscarriage of justice in the particular circumstances of the case. There are now so many special leave applications being filed in this Court that next year we are doubling the number of special leave days, which means there will be less appeals heard. The special leave applications have increased almost 800 per cent since 1984 and the Court cannot take on cases unless there is something special about them. What is special – this is just about a proviso.
MR MONISSE: A proviso but in the context of an important provision in the criminal law of Western Australia, 570D of the Criminal Code.
HIS HONOUR: It is another section and the Court of Criminal Appeal has held that the Crown has discharged the onus under that provision. We cannot be taking cases on every time a court applies the proviso. In fact, I cannot think off the top of my head of a case – I think there may have been one or two we have taken on where there has simply just been a proviso issue.
MR MONISSE: Yes, your Honour. The proviso stands to the provision itself, is that what your Honour is saying?
HIS HONOUR: No, the proviso is there and it is a question of applying it to the facts of a particular case. No great principle of law will come out of the case. If there was a decision in your favour, it would be fact specific. The case would be no authority for anything. Why should this Court’s time be taken up with such a case, given all the other cases, constitutional and otherwise?
MR MONISSE: Yes. In the context of the Western Australian environment, your Honour, it would enable this Court the opportunity to comment upon 570D and the manner in which those charged with policing the laws of Western Australia are to conduct themselves.
HIS HONOUR: We have spoken about the proviso again and again. We spoke about it in Festa; we spoke about it in Dyers; we spoke about it earlier in cases like Wilde. We have spoken about it on numerous occasions when we have had to deal with cases where the appellant’s grounds of appeal have been upheld and where a question arose as to whether the proviso – we dealt with it in Lawrence years ago. We have dealt with it on numerous occasions. I collected many of the judgments in my judgment in Festa.
MR MONISSE: Your Honour, the other aspect to special leave is initially relating to that witness or so-called witness who was requested by the defence to be made available for cross-examination and that did not occur. In terms of the importance of that, your Honour – and that is why in paragraph 3 of my submissions I do rely in support of any application for special leave the matters set out in the amended summary of argument, that of 5 May 2003. But it would appear to me, your Honour, looking at that issue of the witness that was not called, that did not appear at this trial, that there are some overriding concerns of fairness to the manner in which that should be afforded to a defendant. It is not as though that witness was part of a fishing expedition.
HIS HONOUR: I know, but the Court of Criminal Appeal referred and applied Apostilides. D’Archangelo was not a witness named on the Crown’s indictment and he could have been subpoenaed by the defence. All the matters alleged by the applicant had been put to the witness by the police and been denied.
MR MONISSE: Your Honour, I take it as to whether tactically he could have been subpoenaed by the defence, far better for the defence to cross‑examine him rather than call him as its own witness. His Honour Justice Wallwork concedes those points, as I understand it, in his judgment that would not have achieved very much. There is no tactical advantage in calling him as a defence witness. So these two matters, either alone or in combination, from the applicant’s point of view, your Honour, do raise serious concern, particularly in the context of the magnitude of the sentence that the applicant received and ‑ ‑ ‑
HIS HONOUR: He has served that and he is out of the country.
MR MONISSE: He has, but also the nature of the sentence that he is convicted of, hence his reading between the lines, appeals to this honourable Court to overturn the conviction. The convictions themselves were alone bad enough, so much so that they have been confirmed by his deportation on character ground.
HIS HONOUR: Mr Monisse, you have taken up longer than you would get on a special leave application itself and ordinarily my practice is to confine parties to 10 minutes on these applications, and that is the purpose of having the written submissions filed so that one can understand the argument and then have a short oral argument. I have relaxed my usual practice in this case because of the sorts of issues that you have raised, but I
want you to bring your submissions to an end as soon as you can, reasonably. I cannot give you unlimited time.
MR MONISSE: Yes, I know. Thank you, your Honour. As far as I am concerned, they are my submissions.
HIS HONOUR: Thank you, Mr Monisse. Yes, Mr Urquhart, what do you say about this?
MR URQUHART: The first thing, your Honour, the respondent relies on its outline of submissions and supporting affidavit deposed by myself in relation to this matter. It goes without saying the respondent relies on the authority of Gallo v Dawson and the question here is, “Will an injustice upon the applicant occur if the application is not reinstated?”, and the answer to that, the respondent says, must be a clear “No”. The five factors that your Honour has actually said ‑ ‑ ‑
HIS HONOUR: At the moment, I think the prospects of getting special leave are very low indeed, but can a distinction be drawn in the Gallo situation? There had been no application filed in Gallo. In this particular case, an application was filed, there was great delay, and you have uncontradicted evidence that these documents were not received. I have to say I am always sceptical. It is remarkable how many times in these cases the correspondence is never received, but affidavits are put on to that effect and they cannot be contradicted or, in practice, they are not, so one has to accept them. So you have to face up to those factors. What do you say about it? I am also troubled by the fact as to whether or not the jurisdiction of the Court is not essentially futile.
MR URQUHART: That is right, your Honour. I mean, that is the point the respondent makes and the fact that the applicant has been deported. He has served his term of imprisonment. The trial was back in 1999, these offences took place in 1997, he has served his 13 years gaol, and he has now been deported. It is a relatively futile exercise now to proceed with this matter any further and that is why, your Honour, the letter from DIMIA was attached to my affidavit to verify that he has been deported on 26 June this year. So this point that your Honour makes about the failure to receive a certain document from the respondent, well, that has been clarified and proven that he clearly did receive it on or about 11 June 2003 by virtue of the fact that it was part of his appeal book that he prepared and filed with the Court of Criminal Appeal here in this State in relation to his appeal against sentence, and that was in August 2003.
The Deputy Registrar of the High Court emphasised to him that his application book had to be filed by 23 December of last year and he did not comply with that even though he did have an affidavit and so, therefore,
blame cannot be laid on the respondent for failing to provide a copy of the indictment to him because clearly that took place. So one of the reasons why the certificate of deemed abandonment was prepared was because he failed to file his application book.
What the respondent says here, your Honour, is that at some stage the Court has to draw a line in the sand and say enough is enough, and in this case here we have had an application for special leave to appeal filed in April 2002 and we are still waiting for the receipt of the application book. I understand that he is an unrepresented applicant until, I think, yesterday, but the fact remains, your Honour, the respondent submits that this application must fail for all the reasons that your Honour has indeed outlined to my learned friend during his oral submissions.
HIS HONOUR: Yes.
MR URQUHART: Of course, your Honour, the case against the applicant was absolutely overwhelming. There is absolutely no doubt about that. Just on one point there about the failure of the Crown to call D’Archangelo because of the basis that the defence lost the opportunity to cross‑examine him, there were four accused in this trial and so, therefore, one of the accused could have called D’Archangelo and then the other three accused’s counsel would have had an opportunity of cross‑examining him. So aside from that, your Honour, the respondent does not have much further to say. Thank you.
HIS HONOUR: Yes, thank you. Yes, Mr Monisse, do you want to say anything in reply to those remarks?
MR MONISSE: Other than, your Honour, it is my ultimate submission that this case should be distinguished from Gallo for the reasons I have outlined in my submissions. We would submit to the Court that the applicant’s matter has progressed to date, but it has only ever been in the context of an unrepresented litigant. As the learned respondent has pointed out this afternoon, legal input has only been in recent time.
So notwithstanding the pressures on this honourable Court, it is my submission that the applicant should be given his opportunity for a full and more focused chance to convince this Court that his matter should be revisited for the reasons as set out in my submissions, your Honour, but also in terms of him being able to come back to Australia, that that should not be a hurdle in this Court’s decision. That can be dealt with when it arises, if it does become an issue. Can I say, your Honour, in your reasons ‑ ‑ ‑
HIS HONOUR: How would the Court deal with it? Let it be assumed that the Court allowed the appeal. What happens? Does the Court quash the conviction and order a new trial?
MR MONISSE: Yes. With the authority of that order, …..immigration would have to accede to some sort of visa for his return to Australia.
HIS HONOUR: That assumes he would come.
MR MONISSE: From the Bar table, your Honour, you have his sister, his father and another sister living in Australia, at least in Perth, as I understand it, so there is a strong connection with this country as it stands right now as I appear before you. In your decision of Hodgson, your Honour, you do say – I will just refer you to it.
HIS HONOUR: It was a very special case. All the books were filed, everything was filed in that case, if I remember rightly.
MR MONISSE: Yes. For you in that case, your Honour, the merits of the application of the special leave did not play a big part in your decision to allow the applicant to continue with the matter. I think that is at paragraph 6 of your reasons. Your Honour, finally to wrap up my submissions, the applicant, while he appreciates that this Court is under increasing pressures by virtue of the volume of special leave applications before it, that is what he is asking for: the opportunity, as I said earlier, to give a full and proper submission to this honourable Court as to why special leave should be granted. While I rely on the submissions drafted at the amended summary of argument dated 5 May 2003, those submissions have only ever been in the context of an unrepresented litigant. All he is asking for at the end of the day, your Honour, is 21 days to get his act together to file the books. As your Honour pleases.
HIS HONOUR: This is a summons for reinstatement of an application for special leave to appeal. The application was deemed abandoned by Deputy Registrar Wickham and a certificate issued to that effect on 19 May 2004. Since the issue of the certificate, the applicant has been deported to Malaysia, having been deported, I think, on 26 June of this year.
In a sense the Court’s jurisdiction in the matter is rendered futile, although not completely so, by reason of the deportation. If the Court granted the summons and the application for special leave to appeal and the appeal succeeded, the Court would be in the invidious position of ordering a new trial of somebody who was out of the country. There would be considerable difficulties, no doubt, in requiring that person to come to Australia. But be that as it may, I think I should deal with the matter without taking the fact of deportation into account.
The applicant was convicted in August 1999 of nine offences in relation to the invasion of a home and the kidnapping of a woman from the home and the extortion of money from her husband. The offences were committed in company with others and the applicant and others stood trial for those offences. The applicant appealed to the Court of Criminal Appeal of Western Australia and his appeal to that court was dismissed on 28 March 2002.
The High Court file indicates that the applicant filed his application for special leave to appeal within time on 26 April 2002. Since that time the applicant asserts that he has been gathering and filing documents relevant to his application.
He was sentenced on 9 September 1999 and he was imprisoned at Acacia Prison and subsequently Karnet Prison, from which he was released on 14 March 2004 on a work‑release order and he took up residence at his sister’s house. A number of items of correspondence passed between the applicant and the High Court Registry prior to the applicant’s release. On 25 November 2003 Mr Wickham wrote to the applicant at his address for service, which was then Acacia Prison, providing the settled index for the application books and instructing the applicant to file and serve the completed application books by 23 December 2003.
The applicant has filed an affidavit in which he swears, and his sister has sworn an affidavit to the same effect, that on or before 23 December the applicant’s sister communicated with Mr Wickham on his behalf in respect of the failure to file the application books. The sister says that she contacted Mr Wickham to explain that the delay was due to an inability to obtain necessary documents from the Director of Public Prosecutions. She does not describe the outcome of that conversation or whether any agreement was given by Mr Wickham to an extension of time in which to file the books. There is no file note of the conversation in relation to the matter.
On 14 April 2004, Mr Wickham wrote again to the applicant at Acacia Prison to indicate that the respondent had requested a deemed abandonment due to the delay in filing of the application books. Mr Wickham indicated in the letter a preparedness to extend the period for deemed abandonment until 30 April, subject to the filing of books by that date.
The applicant asserts that he did not receive the letter. By that time he had been released on work release. He says that he gave his release address to Karnet Prison authorities in the belief that mail from Acacia and Karnet would be forwarded to the release address. His sister says she had two phone conversations with prison authorities confirming that procedure is the usual one that was taken when a prisoner is released.
The applicant and his sister both deny that they, or any other person at the premises at which they reside, received the letter of 14 April 2004. There is no evidence to the contrary, and the present application must be considered on the basis that, for whatever reason – whether some mistake on the part of the postal authorities or neglect on the part of the prison authorities – the applicant did not receive the relevant correspondence.
The applicant was then detained by the immigration authorities on 15 June 2004. He claims that it was on that date that he first knew of the deemed abandonment when he was presented with the certificate of abandonment by one of the Immigration Department officers. He was first held at the Perth domestic airport awaiting deportation to Malaysia and subsequently, as I have indicated, he was deported.
He claims that the respondent has exploited his disadvantages as an indigent person unable to press for the production of documents necessary to the completion of the application books. He claims that the respondent, either intentionally or without regard to the applicant’s position, withheld documents and then sought a deemed abandonment when the Registry’s deadline had expired. In his letter of November 2003, Mr Wickham referred to the outstanding documents as the indictment, the transcript of summing up and the verdict in the District Court where the applicant was convicted. Mr Wickham advised the applicant to seek the documents from the DPP if he did not have them.
The respondent submits that the applicant’s delays in finalising the application book have not, at least since June 2003, been the fault of the respondent. It points out that the applicant had possession of various documents in the course of the appeal to the Court of Criminal Appeal.
The applicant has filed the sealed order of the Supreme Court and he says that he intends to file the District Court verdict as soon as possible. In his affidavit he maintains that the indictment has still been withheld in spite of his requests.
An application for reinstatement after deemed abandonment must be considered, in my opinion, on the same principles that are involved in an application for an extension of time in which to file an application for special leave to appeal. That is because in each category of case the applicant has overrun the administrative requirements for timely exercise of rights to seek a grant of appeal or the maintenance of the appeal or application. In both cases the applicant must rely on the Court’s discretion to exercise its discretion to hear the matter on its merits. There is no right of appeal to this Court in such a matter and there is no right to the grant of special leave. There is merely a right to make an application. In Gallo v Dawson (1990) 93 ALR 479 at 480 I said that:
the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal.
Mr Monisse, who has argued the application with considerable ability on behalf of the applicant, says that those principles are either not applicable or, if they are, they need to be applied with caution in a case where the applicant has commenced proceedings in time, but by reason of some delay, the proceedings have been deemed to be abandoned.
Although there is some force in this submission, I do not think it can be accepted. In both cases the party no longer has the particular right claimed and I think the principles that I stated in Gallo have to be applied in a case such as the present. In Gallo, I also said that the merits of the application and the presumptive rights of the respondent not to have litigation reopened must also receive weight and, in my view, those factors also apply in a case such as the present.
So the present matter gives rise to both procedural and substantive considerations. As to the procedural merits, persons wishing to engage the jurisdiction of the Court must prosecute their claims with due diligence and speed. While allowance for indigent persons and the disadvantages they face is a matter that must be considered, a period of more than two years for the filing of application books is more than adequate – even for unrepresented persons in the circumstances of the applicant.
If the only obstacle to the applicant’s compliance with the timetable of the Registry was the respondent’s delay, it was open to the applicant to seek the assistance of the Court to order the production of the documents. But it does not appear, even from the applicant’s own affidavit, that the DPP was solely responsible for the non‑production of the relevant documents and, as I have indicated, the applicant has had a copy of the indictment, I think, since 18 August 2003. He does not appear to have requested a transcript of the summing up.
It is also the responsibility of persons engaging the jurisdiction of this Court to advise the Registry of their current address for service. The applicant alone possesses the information that would ensure that the Registry can communicate with him or her. Although the applicant’s expectation about the forwarding of mail and the procedure of prison is easily understood, the fact of his release means he is no longer in prison for the purpose of service and, that being so, although he explains the delay, his failure to communicate to the Court where he would be residing is a matter that weighs against him.
As I have indicated, it is also not clear what was the outcome of the conversation that occurred, or is said to have occurred, with Mr Wickham on 23 December 2003. But in any event Mr Wickham clearly indicated the new time limit was 14 April 2004.
The merits of the applicant’s procedural case are not high notwithstanding the forceful submissions made by Mr Monisse. So it seems to me that unless the prospects of success can be regarded as substantial – and I use the term not in the sense of they are more likely than not to succeed but that they have real substance – there seems little cause for this Court to order a reinstatement of the application for special leave to appeal having regard to the long delay. Nevertheless, criminal matters are entitled to more favourable consideration for reinstatement than civil proceedings because of the impact of the conviction on an applicant.
In the present case, one consequence of the applicant’s conviction is that he has been deported and while the conviction stands one would think the possibility of return to Australia, the place that he considers as his primary home, would have little prospects of occurring. However, the importance of these matters must turn on the substantive merits of the application.
Both the applicant and the respondent have filed summaries of argument on the application for special leave. Both parties rely, for the purposes of that application, on the summary of facts in the judgment of Justice Wallwork in the Court of Criminal Appeal, with whose judgment Justices Steytler and Miller, subject to a minor exception, agreed.
According to the summary of facts, the circumstantial case against the applicant depended: first, in part on records of two phone calls made from the residence of the offenders to the house where the burglary was in progress, which was consistent with the victims’ account of the absence of one of the offenders during the course of the offences; second, the short distance between the offenders’ residence and the home invaded was consistent with the victim’s account; third, the description of the location where the victim was held was consistent with a room in the house of the offenders; fourth, items discovered at the residence during a search the day after the offence, namely, distinctive jewellery of the victim, a rifle, two balaclavas and other items said to have been used during the offences according to the victims’ accounts. They included a knife, distinctive foreign coins were claimed to belong to the victim’s husband, boxed bottles of alcohol that were said to have been taken from the victims’ home, used black adhesive tape, the chemical properties of which matched that used on the victims and bearing blood with a DNA matching to the husband of the kidnapped victim. Finally, some items were admitted to belong to a co‑offender and another connected to her by a former colleague. There were plans about a job found on a bench at the residence which referred to the date of the offences. And the offenders were booked to fly overseas a few days afterwards.
The applicant and a co‑offender made some admissions about owning some of the items in the residence. They denied knowledge of others and they remained silent about others. The applicant’s verbal responses about such items were recorded on an audiotape during the search. He declined to participate in a video record of interview. He admitted to owning the hunting knife and to residing in a particular bedroom there. Other co‑offenders who lived near the applicant and were shown to have rented a van matching the description given by the victim made admissions to witnesses called at the applicant’s trial about their participation in the kidnapping.
The Court of Criminal Appeal thought that the circumstantial case against the applicant was very strong. However, he appealed against his conviction on the grounds that the trial judge wrongly admitted the audiotape recordings of his responses during the police search of his residence and the Crown unfairly failed to call an alternative suspect, a Mr John D’Archangelo.
Section 570D of the Criminal Code (WA) precludes the admissibility of evidence of an admission by a person accused of a serious offence unless the admission is recorded on videotape. In the Court of Criminal Appeal, Justice Wallwork held that the trial judge had erred in admitting the audiotape evidence of the admissions because no exceptional circumstances within the meaning of section 570D existed, having regard to the delay before the recordings were made.
The applicant submitted that the importance of the recording was that it connected the applicant to the premises and the items found there. Justice Wallwork held that, in spite of the trial judge’s error, no miscarriage of justice had arisen because the circumstantial case connecting him with the scene of the offences and the items employed in them was established by his presence when the search commenced.
As to the failure to call Mr D’Archangelo, it was common ground that he had been a suspect and that police had abandoned their inquiries in relation to him when they proved inconclusive. It was the applicant’s case that Mr D’Archangelo had stayed at the applicant’s residence on the night of the offences.
Justice Wallwork cited Apostilides’ Case, which is the relevant case concerning the failure of the Crown to call a witness. However, his Honour held that, having regard to the strength of the Crown’s circumstantial case, no miscarriage had occurred. The witness was not named in the Crown’s indictment. All the matters that were alleged by the applicant concerning Mr D’Archangelo had been put to him by police and had been denied. The fact that the proceeds of the offence remained in the house in the absence of Mr D’Archangelo was also suggestive of his non‑involvement or participation with the applicant and his co‑offenders. His Honour held that the Crown was not required to call Mr D’Archangelo and that there had been no miscarriage of justice in all the circumstances of the case.
On a special leave application the only issue, it seems to me, would be whether the Court of Criminal Appeal erred in holding that no miscarriage of justice had occurred in the circumstances of the case. I think the prospects of obtaining special leave are very low and that, together with the fairly weak procedural merits, have made this a very difficult case.
My mind has fluctuated during the course of argument. In the end, however, I have come to the conclusion that, given the failure of any rebuttal of the applicant’s claims that he did not receive the relevant correspondence, that it would be proper to order the reinstatement of the application for appeal. He should not be deprived of his special leave application because he was not given notice that a certificate of abandonment was sought. The matters to which I have referred and which suggest that his case for special leave is not strong do not, I think, require the dismissal of the application. Matters such as whether the exercise of appellate jurisdiction would be futile because of the absence of the applicant could be dealt with on the special leave application. It may well be a strong discretionary ground for refusing special leave, but I do not think, as I indicated earlier, that I should take those matters into account in dealing with this application.
So notwithstanding my very considerable doubts about the matter, I think in the circumstances I should order the reinstatement of the application. But it will be necessary to lay down some fairly strict guidelines and timetable.
Now, what do you say about compliance with the timetable, Mr Monisse?
MR MONISSE: Your Honour, you will note in the summons the orders asked for 21 days in which to meet the remaining requirements. I suspect I might have some more involvement in this matter, your Honour. Personally I would prefer 28 days to ensure that the books have been settled and everything is in order, and to that indulgence I would ask the Court to give consideration to – and this is in the context of the applicant being overseas now, having been deported.
HIS HONOUR: Yes. You are asking what, for 28 days?
MR MONISSE: Yes, your Honour.
HIS HONOUR: Yes. Well, what do you say about that, Mr Urquhart?
MR URQUHART: I think in the scheme of things seven days is not going to make an awful lot of difference.
HIS HONOUR: No. What do you say about the other orders sought in the summons? Have you anything to say?
MR URQUHART: Your Honour, I can give a copy of the affidavit to Mr Monisse as soon as we adjourn here. So, aside from that matter, yes, the other orders are fine, thank you, your Honour.
HIS HONOUR: I am sorry, I did not follow that about the ‑ ‑ ‑
MR URQUHART: There are four orders sought, your Honour, and I can comply with order 4 immediately.
HIS HONOUR: Yes, right. Thank you.
MR URQUHART: Thank you, your Honour.
HIS HONOUR: In this matter I make the following orders:
1. The application for special leave to appeal in this proceeding be reinstated;
2. The certificate of deemed abandonment issued in this proceeding dated 19 May 2004 be and is hereby set aside;
3. The time for filing and service of the application books be extended by 28 days from the date of this order;
4. Within two days of the making of this order the respondent, whether by itself or by the Director of Public Prosecutions for Western Australia, deliver to Mr Deputy Registrar Wickham and to the applicant the indictment concerning the convictions the subject of this application for special leave to appeal; and
5. Either party may have liberty to apply.
Anything further, Mr Monisse?
MR MONISSE: No, I do not think so, thank you, your Honour.
HIS HONOUR: Mr Urquhart?
MR URQUHART: No, thank you, your Honour.
HIS HONOUR: Yes, thank you.
AT 5.42 PM THE MATTER WAS CONCLUDED
0
2
0