Caruso v The Queen - [1988] HCATrans 184

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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Adelaide No A4 of 1988

B e t w e e n -

CARMINE CARUSO

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
WILSON J
BRENNAN J
DAWSON J
TOOHEY J

Caruso (3)
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON THURSDAY, 25 AUGUST 1988, AT 12 .18 PM
Copyright in the High Court of Australia

AlT 7 / 1 /ND 1 25/8/88
MR G.D. WENDLER: If_the Court pleases, I appear with my
learned friend, MR C.P. LEMERCIER, for the
applicant. (instructed by Stephen Macfarlane)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with MR P. RICE for the respondent. (instructed by the Crown
Solicitor for South Australia)

MASON CJ: Yes, Mr Wendler.
MR WENDLER: If the Court pleases, I submit a summary of
argument.

MASON CJ: Thank you. Mr Wendler, what are you asking
us to do?

MR WENDLER:

In short, to set the sentences aside and to remit the law. There has been procedural

matter back to the Court of Criminal according to
impropriety in this matter. That is the fairest
way out.

MASON CJ: But I have understood from some of the materials
before us that you were suggesting that at least
one of the convictions should be set aside.

MR WENDLER: Yes, that can be done. It is not a complex
leave argument but I am prepared to make a
submission concerning that. In my submission
the JUDICIARY ACT, section 37, can cope with
the submission concerning the fact that there
has been no appeal to the Court of Criminal Appeal
against the conviction. That is because the
scheme of the CRIMINAL LAW CONSOLIDATION ACT
in South Australia, together with Rules of Court,
give the Full Court power to, in the interests
of justice, set the conviction aside even though
a party has not appealed against a conviction.

This Court has at least the same power

that the Court of Criminal Appeal has, or ought
to have, then the mechanism of remitting this
matter -

MASON CJ: But why should we take on board an appeal against
conviction that has never been presented to the
Court of Criminal Appeal?

MR WENDLER: It is an alternative submission. I am mindful
of the practicalities of it.

MASON CJ: There seems to be no practicality attaching
to it at all.

A1T7/2/ND 2 25/8/88
Caruso(3)
MR WENDLER: It is an argument open on the scheme of
section 37 of the JUDICIARY ACT. It is just

one of our submissions. I do not expect to pursue
it with great vigour but I mention it because
it is a mechanism which is available. And as
I read RYAN V RYAN, an earlier decision of
this Court, it is something that would assist
in bringing about that sort of result because
it may be that on the factual basis that the
applicant was processed in the district criminal
court would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Caruso v The Queen

Details

AGLC: Caruso v The Queen [1988] HCATrans 184
Case: [1988] HCATrans 184
Decision Date

CaseChat Overview and Summary

The parties before the High Court of Australia were the applicant, Caruso, and the respondent, The Queen. The applicant sought special leave to appeal against sentences imposed by a lower court. The core of the dispute concerned alleged procedural impropriety in the sentencing process, with the applicant also raising the possibility of setting aside at least one of the convictions.

The legal issues before the High Court included whether the Court possessed the power, under section 37 of the Judiciary Act, to set aside a conviction even though no appeal had been lodged against that conviction with the Court of Criminal Appeal. The applicant also sought to argue that the Court of Criminal Appeal, under the Criminal Law Consolidation Act of South Australia and associated Rules of Court, had the power to set aside a conviction in the interests of justice, irrespective of a formal appeal. A further issue was whether the High Court should entertain an appeal against a conviction that had not been presented to the Court of Criminal Appeal.

The applicant's primary submission was that procedural impropriety had occurred, warranting the setting aside of the sentences and remission of the matter to the Court of Criminal Appeal. As an alternative, the applicant argued that section 37 of the Judiciary Act, read in conjunction with the South Australian legislation and rules, provided a mechanism for the High Court to set aside a conviction directly, even without a prior appeal to the Court of Criminal Appeal. This argument was informed by the High Court's decision in *Ryan v Ryan*, suggesting that a conviction might not legally amount to a conviction on the facts presented. The Chief Justice expressed reservations about the Court entertaining an appeal against a conviction not previously considered by the Court of Criminal Appeal.

Orders