Caruso v The Queen

[1988] HCATrans 30

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 bail

WILSON J

(In Chambers)

Caruso

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 19 FEBRUARY 1988, AT 9.00 AM

Copyright in the High Court of Australia

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MR G.D. WENDLER:  I appear with my learned friend,

MR S.H. MacFARLANE, for the applicant.

(instructed by - S.H. MacFarlane)

MR T. SCHAPEL: If Your Honour pleases, I appear for the

respondent in this matter. (instructed by the

Crown Solicitor for South Australia)

HIS HONOUR:  Yes, Mr Wendler. I have read the papers.

MR WENDLER: If the Court pleases, there are three threshold

problems before I address Your Honour on the merits

of this application. The first one is that the

applicant seeks an extension of time in which to

seek special leave to appeal. It is approximately

three weeks out of time.

HIS HONOUR:  I will not deal with that today, Mr Wendler,

but I direct that that application can be associated

with the application for special leave and dealt
with by the Court when the application for special

leave is heard.

MR WENDLER:  Thank you. The other threshold problem arises

and that concerns whether the Court of Criminal

Appeal has any jurisdiction to receive fresh

evidence after the resolution of the appeal. This

Court has held in GAMSER V NOMINAL DEFENDANT and

BAILEY V MARINOFF that no such jurisdiction exists

in a Court of Appeal in that sort of circumstance.

So the only avenue left, Your Honour, is an

application to this Court.

HIS HONOUR:  Was any application made to the Court of Criminal

Appeal?

MR WENDLER:	No, not on the issue of fresh evidence.
HIS HONOUR:	That rather weakens the application, does it

not?

MR WENDLER:  I do not agree with that, Your Honour, because

the decision in GAMSER V NOMINAL DEFENDANT is a

very powerful decision of this Court and the facts

of that case are such that this Court has made

it quite clear that there was no jursdiction for

a Court of Appeal to entertain an application of

that sort.

HIS HONOUR:	Why would that not apply to the High Court as well if it is a correct proposition?
MR WENDLER:	That is the second threshold problem. It has

given me some concern as to how this application

would be utilized by this Court.

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HIS HONOUR:  What is the explanation for an application not

having been made to the Court of Criminal Appeal?

It cannot be put on the question of an apprehended

dismissal of the point on the basis of previous

authority. It is apparent from the papers that

Mr Waye dropped out of the proceedings in the Court

of Criminal Appeal so that the facts pertinent
to the disposition of the case could be put afresh
to the Court of Criminal Appeal without being

trammelled by the fact that the counsel who is

putting it was the same counsel who made the plea

for leniency in the court below.

MR WENDLER:  Right. The applicant is really stymied by the decison of this Court in GAMSER V NOMINAL DEFENDANT.

HIS HONOUR:  You did not hear my questionl why was it not

attempted?	Why was not the fresh evidence put
before the	Court of Criminal Appeal to see what
they would	do with it, in any event?

MR WENDLER:  I am instructed that the Court of Criminal Appeal

has no jurisdiction either by any legislation or

by rules of court to entertain such an application

because it is not during the currency of the appeal.

HIS HONOUR:  And were they the instructions that led to it

not being raised before the Court of Criminal Appeal?

MR WENDLER:  No, but they are the instructions I have today.

It was not agitated because, legally, it is

impossible.

HIS HONOUR:  I note the second point. What is the third?

MR WENDLER:  The extent to which this Court has inherent

jurisdiction to entertain an application which

has, as part of_ its component, an application to

receive fresh evidence. At one stage, when trials

were common in this Court, there have been examples

where fresh evidence has been entertained by this
Court.	I have only discovered an old case concerning

this and I have a copy of it for Your Honour.

HIS HONOUR:  I think I could, without any jeopardy or prejudice

to your client, Mr Wendler, say this, that I would

not be prepared,on the materials before me, to

make any order touching the tendering of fresh

evidence but I would say this, that if the applicant
is so advised and the evidence is properly reduced

to writing and is the subject of notice to the

Crown there is no reason why an application to

the Court to receive it could not be made when

the application for special leave is heard.

MR WENDLER:  Do I take it from Your Honour's rejoinder that

Your Honour is directing the applicant to raise

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these issues as part and parcel of the application

for special leave?

HIS HONOUR:  No, I am refusing the application at this stage

but I am indicating that it would be open for you
to seek leave at the time when the matter comes
before the Court on the merits of the application

for special leave. That seems to me to be the

appropriate time at which the Court could say "Yes"

or "No" to the receipt of fresh evidence. It would

be quite wrong, I think, for me to spend time now

going into the merits of the application; it is

a serious application,that it would be quite wrong

for me to foreclose at this stage.

MR WENDLER:  What gave me some concern was the way that the

High Court Rules have been designed to cope with

this type of application and it occurred to me

that the only way around it was via Order 37 and

Order 72 and that is why this application has come

up in this ~ort of interlocutory phase but since

Your Honour has indicated - - -

HIS HONOUR: Neither of those would apply to proceedings

under Order 69A, would they, in terms?

MR WENDLER:  No, but as I read Order 37, it appears to be

able to cope with the reception of fresh evidence.

It appears that Order 37 is what is left of the
old orders when the Rules were 1n their infancy.

HIS HONOUR:	What rule are you referring to in Order 37?
MR WENDLER:	Order 37 rule 3, Your Honour.  And rule 7.

Of course, those Rules can be buttressed by

Order 72, the Court of course can invent a procedure

if there is no procedure specified in the Rules.

HIS HONOUR:  I am not satisfied that they have any

application to the proceeding and, as I have indicated,

I would not be prepared to facilitate the reception

by the Courtof fresh evidence in a case like this
when no attempt was made to lead it, although it
was clearly available, at the time of the hearing
before the Court of Criminal Appeal. On all the
recognized grounds touching the receipt of fresh

evidence in proceedings,the necessity for it to

be fresh is a fairly potent requirement.

MR WENDLER:  There was some attempt to introduce this in

the Court of Criminal Appeal as deposed to in one

of the affidavits and it appears that because of

this breakdown in communication this information

was not conveyed to the lawyers involved in it.
It is almost like a scene out of a Kafka novel

1n a sense. It gets darker and darker.

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HIS HONOUR: It will have to continue to get darker and it

no doubt will be darker when the application comes

before the Full Court but I have indicated my

decision with respect to the present application

before me today and it seems to me that it is the

most favourable way in which your application can

be dealt with at this time. It does not shut you

out completely from making a fresh application

when the application for special leave comes before

the Court but it does not, on the other hand, give

you any encouragement.

MR WENDLER:  Would Your Honour consider making an order that

the hearing be expedited, the application for

special to appeal?

HIS HONOUR:	Why should I do that?
MR WENDLER:	Because of the nature of this application.
HIS HONOUR:	Here is a man who was sentenced - represented

by counsel at the time when the plea of guilty

was tendered, he was sentenced to an aggregate

of seven years, with a minimum of five, he a.ppealed
to the Court of Criminal Appeal against that sentence,
it was reduced to an aggregate of five years with

a minimun of three years and nine months, he will

be on that basis in custody at least, or until,

at any rate, at the earliest about November 1989.

Assuming the matters take their ordinary course

and this matter goes into the Adelaide list and

is determined in August 1988, some 15 months when

he would have been entitled perhaps to be released
on parole had he not approached the High Court,there

still seems to be ample time, if the Court was prepared

to take the application and allow the appeal, to

affect any sentence. You are not suggesting he

should not be liable to some term of imprisonment,

are you?

MR WENDLER:	successful in having an order made whereby he could This is problematic because if he were
withdraw his plea of guilty and the matter restored to the trial list then, of course, that would knock out of kilter the non-parole period. It is very
difficult to know exactly what term of imprisonment
he might face.

HIS HONOUR: It seems to me there are serious problems of

cost and expense. I do not think it is necessary
to call on Mr Schapel because the business of the

Court is such that the reasons you have advanced

in support of the application would not warrant

me ordering an expedited hearing and thereby

putting back some other case that is awaiting hearing

and has been waiting for a longer period.

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MR WENDLER:	I cannot pursue it much further.	I think you have

indicated what the attitude 1s.	I will leave it
there.

HIS HONOUR:  Yes. The application for bail, is that abandoned,

18 it?

MR WENDLER: It would have to be, Your Honour, in those

circumstances. It could not possibly succeed.

HIS HONOUR:  I think I would have to say, Mr Wendler, as

you would appreciate, that it would be extraordinary

to grant bail pending an application for special

leave. There is power to do it but there must

be a clear case that,failing bail, the prisoner

would have entirely served the time to which he

has been sentenced before the matter could be heard

and that is not this case, as you appreciate.

MR WENDLER: Yes, if the Court pleases.

HIS HONOUR: Thank you. I do not need to hear you,

Mr Schapel.

MR	SCHAPEL: If Your Honour pleases.
HIS HONOUR:	That concludes the business.

AT 9.11AM THE MATTER WAS ADJOURNED SINE DIE

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