Caruso v The Queen

[1988] HCATrans 176

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 remitter

WILSON 'J

(In Chambers)

Caruso(2)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 22 AUGUST 1988, AT 11.00 AM

Copyright in the High Court of Australia

AlTl/1/RB 1 22/8/88

MR G.D. WENDLER: If the Court pleases, I appear with my

learned friend, MR C.P. LEMERCIER, for the

applicant. (instructed by Stephen Harry Macfarlane)

MR J.J. DOYLE, QC, Solicitor-General for the State of

South Australia: If Your Honour pleases, I appear

with my learned friend, MR P. RICE, for the
respondent. (instructed.by the Crown Solicitor

for South Australia)

HIS HONOUR~	Yes, Mr Wendler.
MR WENDLER:	If the Court pleases. Your Honour, we have designed

a short summary of argument that may well assist

Your Honour given the nature of this application

and, hopefully, this summary of argument has identified

the main features in this application. I have also

handed up various sections from the CRIMINAL LAW

CONSOLIDATION ACT and some rules of court and I

will explain the significance of those later in

this application.

HIS HONOUR:  Is the present application in any way affected

by the misunderstanding that appears to have been
generated from the last application, Mr Wendler?

I should explain perhaps that what I was seeking

to elucidate in the course of that hearing was to

understand why the question of fresh evidence, as

you call it, was not canvassed at the time the appeal

was before the Court of Criminal Appeal. I found

it rather difficult to imagine why it was not when

the primary complaint was that information was not put .befo~e the trial judge on sentencing. That was

what - - -

MR WENDLER:	Yes, I understand this.
HIS HONOUR:	- - - was in my mind and why cannot you develop

your grounds on this aspect of the application for

special leave when it is before the Court on

Thursday or Friday?

MR WENDLER: It can be done that way, Your Honour, but another

method we have explored, and I think it is a

possibility - an exciting possibility - and that

is to utilize section 44 of the JUDICIARY ACT as

being an appropriate vehicle to return this matter

to the Court of Criminal Appeal and it is section 44

which would then give the Court of Criminal Appeal

··;. jurisdiction to open this area up again.

HIS HONOUR: Well, theoretically, section 44 might be open

but it would not be resorted to without some ground

for thinking the matter was of sufficient importance

to warrant it. Now, is this fresh evidence?

MR WENDLER: In our respectful submission it is.

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HIS HONOUR:  Why?

MR WENDLER: It is evidence which - -

HIS HONOUR: It has always been known to your client.

MR WENDLER:  Yes, but it has never been adequately put to any

court by his former legal advisers.

HIS HONOUR:  Does that make it fresh?

MR WENDLER: Yes. It does, in my respectful submission.

HIS HONOUR:  Your ground is really an allegation of negligence

against your client's solicitors or counsel.

MR WENDLER:  In a sense it is - yes. The fresh· evidence

component is the applicant's - his own version of

his criminal responsibility.

HIS HONOUR:  But it is not fresh, Mr Wendler. Fresh evidence

is something that is discovered and could not

reasonably have been discovered before the hearing

to which it should have been tendered.·

MR WENDLER:  But it is fresh in the sense that his legal advisers

have never made it known to anyone because they
have never acted according to proper instructions,

you see,and that is connected to a miscarriage of

justice.

HIS HONOUR: Well, it may and that allows for its relevance

to an application for special leave.

MR WENDLER:	Indeed.
HIS HONOUR:	I do not want to cut you short but I have had

an opportunity of reading the summary of your
argument but I cannot see why your client's interests
would not be best dealt with by simply putting your
submissions on the fresh evidence question which, I think, is one of the grounds of the application for special leave, is it not?

MR WENDLER:	Yes, it is.
HIS HONOUR:	That the applicant seeks leave to attach further

grounds of appeal concerning his conviction -

I found that difficult to understand.

MR WENDLER:	And sentence.
HIS HONOUR:	But there has never been an appeal against

conviction.

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MR WENDLER:  Indeed, that is why this vehicle of remitter

has been utilized because if the matter can be

returned to the Court of Criminal Appeal then

Your Honour will note from the relevant sections in the CRIMINAL LAW CONSOLIDATION ACT - can I

just invite Your Honour to section 359, in particular

subsection (f).	Your Honour will note that
subsection (f) -

HIS HONOUR:	What has that got to do with an appeal against conviction when the appeal against conviction is
never lodged. There has never been an appeal
against conviction.
MR WENDLER:	That is right but that section absorbs the

civil appeal rules and the civil appeal rules allow

the Full Court to do anything - the Full Court could

set aside the convictio~ even though there has never

been an appeal against conviction, if it makes an

assessment of the fresh evidence and at the end

says it could not have amounted in law to a plea

of guilty to cultivation of Indian hemp. And it

is in that way that this remitter vehicle is being

utilized.

Now, it is an exc1t1ng jurisdiction,remitter,

and it is a way of taking this problem back into

a domestic environment and staying away from this

Court.

HIS HONOUR:  Is there any past occasion when section 44 has been utilized in this manner that you know of?

MR WENDLER:  No. Not in this manner but in civil matters where

the effect of section 44 has been to confer

jurisdiction upon a court which would otherwise

not have jurisdiction. It is a procedural vehicle.
This Court cannot order the Full Court to apply

a certain law but it can order certain procedural

matters to be complied with and all we are asking

for is an opportunity to return to the Court of

Criminal Appeal and reactivate the appeal and then

agitate these points. That is why this remitter

vehicle is being explored.

HIS HONOUR:	But there is an application for special leave to appeal and that will go on in any event, will
it not?

MR WENDLER:  No, it will not. If Your Honour makes the order

for r~mittal to the Court of Criminal Appeal - - -

HIS HONOUR:  What has happened to the rest of the application

for special leave?

MR WENDLER:  Well; that would be adjourned pending the outcome

of the returned application before the Full Court.

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We might be successful in the Full Court and,

of course, then the application for special leave

to appeal would be discontinued. Now, it is an

exciting - I was most excited to read

Your Honour's decision in FAI INSURANCE which really

relaxes the inflexible concept that courts have

had for a number of years about being functus officio

after an appeal is purportedly over. Now, there

is no reason, in my respectful submission, why

Your Honour could not order this to be returned

to the Court of Criminal Appeal and then various
submissions made in that court concerning the

reception of this fresh evidence because if the

applicant were successful that would be the end

of the matter.

HIS HONOUR:	And that is your application really?
MR WENDLER:	To remit the matter to the Court of Criminal Appeal.
HIS HONOUR:	Yes.  Do you wish to -
MR WENDLER:	There are two orders sought, of course, on the

summons:  one, in the alternative, is that this

application be set down with the application before

the Full Court on Thursday concurrently - - -

HIS HONOUR:  Why do you need a direction as to that if the

remitter is refused - the application for a remitter

order is refused then the application for special

leave will carry on.

MR WENDLER: In that case it would. Yes. If Your Honour makes

no order today concerning the remitter and simply

orders that this matter proceed before the issue is still a live issue.

HIS HONOUR:	So paragraph 2 does not arise.
MR WENDLER:	No.  That is right.

HIS HONOUR:	Anything else?
MR WENDLER:	The justice of the situation is this: that if

the matter cannot be reopened before the Court of

Criminal Appeal because it is held to be functus

officio and this Court has no jurisdiction to receive

fresh evidence on appeal and there is no prerogative

order or remedy which would force a superior court

judge to convene a court in order to hear it then

this applicant has nowhere to turn. You see they
are the three considerations which are connected

to the administration of justice in this case.

He would have no chance on the application for special

leave to appeal on Thursday because this Court has

held in the past that it is not consistent with its

appellant jurisdiction to receive fresh evidence.

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HIS HONOUR:	You keep talking about fresh evidence, Mr Wendler, and it is your submission that this is fresh evidence.
If _it is not, where are you?
MR WENDLER:	In our submission it is fresh evidence because - - -
HIS HONOUR:	I say, if it is not fresh evidence on the accepted understanding of what fresh evidence is, where does
that leave your application?

MR WENDLER: It does not go anywhere, I suppose, on that

component of the application.

HIS HONOUR:	Well, should you be quite so reticent? Is not the heart of your application, for what it is worth,
a submission that a miscarriage of justice has
occurred by reason of the negligence of your client's
legal representatives?
MR WENDLER:	But in order to agitate that ground the Court has to receive de bene esse the material in the
affidavits that have been filed as part of the
application for special leave to appeal. And there
are these threshold questions concerning the
jurisdiction of the High Court in any case to receive fresh evidence on appeal.
HIS HONOUR:	There are probably substantial difficulties in your path, Mr Wendler, having regard to the fact
that it is not just one oversight that you are
complaining about but two and on the basis that in any event it is not fresh evidence - I tend to
think that you are complicating the scene by
speaking of it as fresh evidence but I take your
submission, I think I understand it.
MR WENDLER:	I was wondering what the next move. is really.

Does Your Honour propose to not make an order concerning. the remittal of the matter or to - - -

HIS HONOUR:  I propose to let you finish what you wish to say

and to hear the Solicitor.

MR WENDLER:  There is just one other issue and I need to mention

it. On Friday, section 78B notices were issued

to the Attorneys-General throughout the Commonwealth

because one of the issues that may arise in this
case is the interpretation of section 73 of the
CONSTITUTION, in particular the last paragraph of

it. Can I invite Your Honour to that now - I will just explain this point.

Does Your Honour see the last paragraph of

that section, "Until the Parliament otherwise provides"?

HIS HONOUR:  Yes.

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MR WENDLER:  The construction of that part of section 73 has

never been entertained in this Court. The

traditional view has been, since 1937, that the

reception of fresh evidence, if it is fresh evidence,

by the High Court - or the High Court has no

jurisdiction to receive fresh evidence. There will

be a submission concerning section 73 which confronts

this jurisprudential point head on and the submission

will be that there has never been a constitutional

bar in the appellant jurisdiction of this Court

to receive fresh evidence because the appellant

jurisdiction of the Privy Council in the past has

been such that it has received fresh evidence on

appeal. That is why these notices, out of an

abundance of caution, have been issued.

HIS HONOUR:	Yes.
MR WENDLER:	I thought I should just mention that point to put Your Honour in the picture.
HIS HONOUR:	Yes. It promises to be an interesting application,

Mr Wendler.

MR WENDLER: 

The darkness may be greater than it was in the

beginning at the end of it, I am not sure, but
perhaps I will leave it there. If the Court pleases.

HIS HONOUR: 

What do you say, Mr Solicitor?

MR DOYLE: 

Your Honour, my submission is, just on the remitter

question, that unless the Court first decided that

it had jurisdiction to inquire into the facts there

really is nothing to remit. Clearly, in the light

of DAVIES V R there is a doubt as to whether the

Court could inquire into the facts for itself and

until that doubt was resolved, in my submission,

to take the course of remitter would be, in effect,
to remit something which the Court had not decided

it had jurisdiction to do.

It is also at least, perhaps, doubtful whether

at the other end this is a subject-matter over which:

the supreme court would have jurisdiction because

it depends how you characterize it. If you just

called it fresh evidence, clearly, it has jurisdiction

with respect to that subject-matter but if you talk
of it as fresh evidence on appeal from the Court
of Criminal Appeal then more narrowly characterized,

of course, it does not look like a subject-matter.

And furthermore, in my submission, it is doubtful

whether it would be appropriate to remit because

it is hard to see, really, what one would be doing

short of remitting the whole appeal to the Court

of Criminal Appeal and it would be, at the least,

a very odd thing for it to have remitted to it

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what is, in substance, an appeal from itself. So,

in my submission, remitter is something that could

only be decided after reconsideration of the

authority of DAVIES V Rand my submission would

be, in due course, that it was not appropriate.

Going from there, Your Honour, and appreciating,

as I do, the difficulty which appears to confront
the applicant, it does appear that the Court of

Criminal Appeal has finally disposed of the matter.

I prefer to use that term rather than functus officio

which sounds to me like a good name for an Irish

lawyer and does not really tell one much about the

legal principles. Your Honour, we have looked at

the documents and it does look as if, while

His Honour Justice White in the letter which is

in the appeal book took the view that once the

notifications were sent to the respective officials

the matter was disposed of, my submission would

be that that is probably not correct. But having

looked into it - and again I will not develop the

argument now - but various notations have been made

on the original information as to the outcome of

the appeal and also in the record kept.by the clerk

of the district court and so it does seem, and I

put it no higher than that, that the appeal against

sentence has been finally disposed of.

However, as Your Honour pointed out, there

never has been an appeal against conviction and

for what it is worth in the attempt to unravel this

matter I can indicate that the Crown would support

an application that the Court of Criminal Appeal

be reconvened for two limited purposes. First of

all for it to decide whether it has, in fact, finally

disposed of the appeal against sentence. In my
submission it is rather awkward for the High Court
to decide that because it would involve looking
into the records of the Court of Criminal Appeal

and the District Criminal Court.

HIS HONOUR:  The basis for any doubt is simply the failure

to extract the order, is it?

MR DOYLE: Yes. And on the authorities which we have looked

at, Your Honour - and there are two cases dealing

with very comparable rules, one from Victoria and

one from England, and what they have said there,

at the criminal appeal level, is that while there

is no process of taking out an order similar to

what Gne has in a civil court, under very similarly

worded rules to ours they have said: "Once the

Court of Appeal notifies the result and then once

the records of the court where the original charge

was laid are written up with notice of that result

on appeal, then the appeal is finally disposed of."

And, as best we can tell from our own inquiries,

that has happened here but my submission is that

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if anyone is to decide that it would be better that

the Court of Criminal Appeal decide that clearly

for itself and it is clear that, as Your Honour

would realize, Justice White has heard no submissions

on that. And while our argument would be that it

is, in fact, finally disposed of,who knows, there

may be some further facts still not·known to us

that may indicate that it is not. So we would,
for what it is worth_ support my friend in asking

the court to reconvene to hear argument on that

issue and secondly, of course, it would be open to

my friend to apply for leave to appeal against

conviction out of time because there never has been

an appeal against conviction and while the authorities

do indicate that one cannot have two appeals against

sentence - and so if that appeal is finally disposed

of there is nothing more, it would seem, can be

done at that level about sentence.

HIS HONOUR:  Yes. Those two matters that you refer to could

both be activated by the applicant without any order

from the High Court, as I would see it.

MR DOYLE:	Yes, that is so, Your Honour.
HIS HONOUR:	But it might be then expedient to adjourn the

application for special leave pending the resolution

of those matters.

MR DOYLE:	Yes, Your Honour, unless my friend has an argument- and it may be he has an argument that he would want
to put-that does not depend on the outcome of either
of those.  But our submission would be that either
of those matters really need to be considered by
the Court of Criminal Appeal first if he is seriously
going to pursue them. Obviously, if he is arguing
that come what may and regardless of the question
of miscarriage of justice that there are grounds on which special leave could be given to appeal against the sentence,well, then that does not depend
upon those matters.

But it is rather awkward and - - -

HIS HONOUR: It may be inexpedient though to deal with those

matters whilst the other was left unresolved.

MR DOYLE:  Yes. I do not want to, as it were, seem to be

prolonging the agony because our submission on what

we know before the Court of Criminal Appeal would

be that the appeal against sentence is finally

disposed of.

HIS HONOUR:  And nothing I said in the-last hearing, I hope,

is to be taken as indicating a view to the contrary.

MR DOYLE:	No, Your Honour.
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HIS HONOUR:	I simply have not looked at it but, as I have explained to Mr Wendler, my concern then was to simply elucidate why the question of fresh evidence,
so called, had not been canvassed at the Court
of Criminal Appeal when the appeal was before it.
MR DOYLE:	Yes. That is what we understood, Your Honour, and
that also is our concern, as I pointed out to
my friend this morning,  we have only really got
what could, in fairness, be called a fairly sketchy
affidavit from the applicant - nothing from any
of his former legal advisers and nothing to explain
why there is nothing from them and, in my submission,
it is a bit difficult at this stage on the question
of the miscarriage of justice, as claimed, to really
know quite where one goes on such sketchy evidence anyhow.

So, in short, Your Honour, we would submit

that the question of remitter is not really a practical
solution to the problem but, in any event, would

require a reconsideration of the authority of

DAVIES V R. It may well be that the matter - and

we would support it being brought back.before the

Court of Criminal Appeal though whether that will

really help in the long run I am far from sure.

HIS HONOUR:  If the Court was to proceed to deal with the

application for special leave and in the event that

it was allowed of course, or leave was granted,

and the appeal allowed then the matter, presumably,

would go back to the Court of Criminal Appeal then.

But if the application for special leave was refused

does that close off any further action by the applicant?

MR DOYLE:	Your Honour, in my submission, it probably would
not prevent still an application for leave to appeal out of time against conviction because although such an appeal is foreshadowed in the present papers it is not actually made in them and, in any event,
has never been made to the Court of Criminal Appeal.
It may be that pursuing the application for special
leave to appeal from the sentence would make it - in my submission it probably would make it all the
more difficult to go back then after that was
dismissed to the Court of Criminal Appeal and say
that it could now reopen the matter for itself.
I have not thought that right through - it may well make it more difficult to persuade the Court of
Criminal Appeal to reopen the question of sentence but in my submission it could not, and should not, affect the question of an appeal against conviction.

HIS HONOUR:  Thank you, Mr Solicitor. Do you wish to

say anything in reply, Mr Wendler.

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MR WENDLER:	Yes, I do.	The applicant supports the possibility

of returning this matter to the Court of Criminal

Appeal on the issue raised by the learned Solicitor

and perhaps the appropriate order is that the
application for special leave to appeal be adjourned

and not come on for hearing on Thursday.

HIS HONOUR:  I have come to a clear view, Mr Wendler, that

the most appropriate course in the light of the

interesting issues that have been raised is to refuse

the application for a remitter. I do not consider

that would be an expedient course in the circumstances

and that disposes of this application and I suggest

that the application for special leave simply stand.

After all, an adjournment of that application is

not before me now and that will be returnable before

a Full Court later in the week. It gives you a

chance to consider the applicant's position· in the

meantime and you can proceed on that application

as you may think fit.

The application that is now before me is refused.

AT 11.24 AM THE MATTER WAS ADJOURNED SINE DIE

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