Flora v The Queen
[2013] HCATrans 304
[2013] HCATrans 304
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M131 of 2013
B e t w e e n -
TIBERIJE FLORA
Applicant
and
THE QUEEN
Respondent
Bail application
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 11 DECEMBER 2013, AT 11.15 AM
Copyright in the High Court of Australia
MR B.F. KISSANE: May it please your Honour, I appear for the respondent. (instructed by Office of Public Prosecutions Victoria)
MS M. RADMILOVIC: I am asking for permission to appear for Mr Flora. (instructed by the applicant)
HER HONOUR: Yes, and you are Ms Radmilovic.
MS RADMILOVIC: Yes.
HER HONOUR: Yes, certainly. Ms Radmilovic, I realise that this is an application for bail and that you will be appearing on behalf of the applicant. I understand you are his fiancée and I have read the written material which has been provided by him to the Court. So if you would like to come forward and you may address me on any matters which you wish to put on his behalf. Come forward to the microphone.
MS RADMILOVIC: So I start now?
HER HONOUR: Yes.
MS RADMILOVIC: Okay. I read the response from the prosecution that I received yesterday and I would like to say something in regards to that. Then I would like to read Mr Flora or Tibby’s – if that is okay to call him – affidavit.
HER HONOUR: I have read his affidavit.
MS RADMILOVIC: You have, so I do not need to mention it.
HER HONOUR: No, you do not need to read it again.
MS RADMILOVIC: Okay. Then after the prosecution respond, I would like to say something as well.
HER HONOUR: Reply again.
MS RADMILOVIC: Reply, if that is okay.
HER HONOUR: Certainly, yes.
MS RADMILOVIC: Well, since I read the prosecution response yesterday, I have to say that I am really extremely disappointed that no one is interested in the truth and what happened on the day. All they are interested in is in the protocol and the proceedings. Sorry, I am a bit nervous.
HER HONOUR: That is okay.
MS RADMILOVIC: Also, the prosecution – their response clearly shows that they are aware of everything that happened about the misconduct and the misrepresentations from the trial counsellor and they are now trying to hide the entire evidence and the truth, what they have been trying to do pretty much from day one. We have evidence for everything, black and white evidence, what happened and they keep on tampering with it and changing the truth.
Okay, I will say in point 4 and 5 when they are saying that our grounds for appeal are not strong enough, and that is exactly the reason why we are asking for a bail application now, so that we can actually prove his innocence. I have been making so many attempts to get documents from courts and I have been refused. I keep on being told it is a criminal matter and I cannot do anything. Where he is in prison he has no internet access to make any research. He has no phone access to make applications himself. It is impossible for him to actually get the documents that are needed to prove that he is innocent.
Again, at the special leave to appeal hearing at the Court of Appeal Judge Harper did allow the appeals against conviction based on the ground of distress. However, at the appeal hearing Mr Lachlan Carter did not represent – he did not represent it properly like Mr John Dickinson did. The way Mr John Dickinson represented it was to show that the prosecution had no evidence.
They took two 15‑year‑old girls that they are talking about the – how she came – actually I will just read this. Two 15‑year‑old girls gave evidence about distress. They said that she came out but when she went back into her house she got her backpack and they both came out to the veranda and they did not seem to be arguing. I mean - and that is statements from two 15‑year‑old girls and then they are saying she was distressed. It is not right to talk about distress.
Then also the prosecution was saying about the misconduct, that we did not make any application and all sorts of – like that we did not make any application in previous courts for misconduct but we did. We actually made applications but we were told that misconduct is not a point of law and we cannot go against our representation.
So the bottom line is really we have been told stories where nobody really cares what happened and they are trying to hide what happened. Like, the reasons – I do not know if anyone mentioned the reasons why we are applying for bail or ‑ ‑ ‑
HER HONOUR: I understand the reasons are the need to access documents and to have internet access for research purposes.
MS RADMILOVIC: Yes.
HER HONOUR: You have mentioned those two reasons.
MS RADMILOVIC: Yes, and also because – well, to start with I think that bail should be granted because Tibby has not done anything wrong. That is number one. Number two is the whole time he was looking just for justice. Number three is that he is no threat of leaving this – like, of fleeing the country and he is absolutely no threat to the society. He has been on bail for three and a half years and he does not have any prior convictions. He has done everything to help everyone in the society. He is not at risk of fleeing the country. While he was on bail he was given his passport to travel to Fiji and come back for work purposes. He really needs to start going back into work. He has a company that is running since 1998 and it is standing on its last legs.
I need help. His kids need help. His parents need help. All these people that are here today they are just being disappointed by the entire justice system how he is treated like a criminal for something that he absolutely did not do. The police has been tampering with the evidence and they have been hiding the truth just so that the policeman can spend more time with [CR]. The evidence has been hidden.
They made three statements. In one of the statements [C] says – which I believe was written by the informant, Bill Tzounos, [C] makes – she says in the statement, “The only time that Tiberije ever became violent to me was on 1 July 2008 during the incident at my house and…..matters when he was arrested” but then they allow some story – made‑up story that was in 2003 and then they put another charge that he was found not guilty of, the charge of rape that he was found not guilty of because it did not happen.
But they used all these things just to make him look like a serial offender which is not true and plus, for the conviction – when he was first convicted in 2011, the jury, what they have done is they give instructions – sorry, the Office of Public Prosecution gave instructions to the jury. They are not allowed to do anything like that. That means the jury has been poisoned from day one. The first day they are giving written instructions to the jury. It cannot be done. I was there. I know what I am talking about.
Also, in the point – when the prosecution was talking about misconduct and why there was no point made about the character reference, it was. The point was made. Mr Bob Galbally took out the point. They are saying that - one second, I will read from Mr Flora’s - I should read really on page 4, it is on his applicant summary of argument and on page 4 the fourth point:
On the seventh point of appeal against conviction – “the trial judge erred in not discharging the jury on the basis of the contents of the juror’s note . . . Appeals Judge Redlich failed to take in to consideration “the content of the note” which shows that elements of the jury had already come to a decision without discussing or [bringing] up the evidence . . . on hand.
Sorry.
He only took in consideration that my counsel did not act on it. In fact –
Mr Hannebery did act on it. He said – but he acted –
in bad faith, and without my consent. Mr Haneberry said: “Thank you Your Honour. I won’t be making any application in relation to this jury. All I would ask you Honour is that as part of your [decision], that you remind the jury that there is no evidence in this case of any police corruption. There is no evidence that any police officer has attempted to prevent justice or has given advice to Mr. Flora that affected the interview. There’s simply no evidence of that.”
At that point I was unaware –
this is what Mr Flora is saying, that he was unaware –
of the contents of the note since Mr. Haneberry didn’t read the note to me and didn’t give the note to me he said to me and few other people, “this note is in your favour and the note says that two jurors are on your side” –
We never got to see the note. I asked Mr Hannebery to give me this note so I can read it and he just refused it. Then he goes back and tells the judge it is all right to leave the jury, he is not making any application, and there are so many people that were there that witnessed it.
Then to the point of misconduct by his legal representation – just one second. No, sorry, if I could mention just something about the paragraph 12 from the prosecution’s response, where they are saying the failure to lead good character evidence – this is where I was going to:
The failure to lead [good] character evidence at the trial was considered by the Court of Appeal to be a forensic decision made on a perfectly rational basis.
However, the truth is that one of the judges said that they need to make an example out of Mr Flora’s case and that character reference must be shown in front of the jury. Also there was a case, DPP v Sharma, appeal against conviction where trial was ordered based on the failure to call good character evidence. But the most disturbing thing that happened was that Mr Galbally took the point 6 out. In the judgment from Judge Redlich he says:
The appellant filed a notice of election with respect to all of the proposed grounds on which he had been refused leave. Shortly before the oral hearing of the appeal, however, his counsel indicated that ground 6 of the conviction appeal would not be pursued.
We do not know when this happened.
Accordingly, it is unnecessary to say –
Everyone failed to take any instructions. Mr Galbally, Mr Stephen Andrianakis, Justin Hannebery, they failed to take any instructions from what we were saying and then we make a point and the judges – those three judges were constantly talking about misconduct and how they need to show that character evidence must be shown in court.
They failed to take it into consideration only because Mr Galbally took it out without our consent. We have been taken everything away from us. He was just put in gaol for something that the prosecution absolutely has no evidence and we can prove it. I just need him really to come home after two years so that he actually can get the truth out. I mean, it is destroying someone’s life for two years, and not just his life. It is my life. It is his family. It is his kids. It is his parents. It is everyone’s lives because of a lie, made‑up story.
The police instead of helping and doing the right thing, investigating, they end up tampering with the evidence and hiding the truth. They hid the DNA evidence. They do not want to present it because it came back negative. They are denying us [C]’s statement, phone records that clearly show – that would prove that she is lying about everything. Plus the photo that the prosecution showed to the jury, the bruises on the wrong side of her face, we can prove that that bruise has been photoshopped. They just manipulate it or photoshop, and yet nobody wants the truth. As I said at the beginning, the prosecution is not interested in finding the truth. They are interested in the conviction, and it is sad to see that this justice system is operating this way. It is really, really sad.
Anyway, your Honour, I believe we have really hard evidence to have the special leave to appeal granted and therefore I really need Tibby to come home to prepare himself for the appeal itself. He has been denied so far – sorry – he has been really denied so far every possibility to prove his innocence. He…..fighting. The police and the prosecution was making deals with Justin Hannebery and Stephen Andrianakis.
Now they are saying he never made any application – I am sorry – that he never made any application to – that he never said it before. We have. We brought to IPEC. We brought to the judicial review. We made applications, but the fact that Mr Galbally did not want to use it by saying that – by saying that misconduct is not a point of law, it is wrong. We have been lied to from every angle and he does not deserve to be treated like a criminal, really he does not.
He is the most beautiful person that has helped everyone he ever came across including [CR]. He was helping her, teaching her. She only has eighth grade primary school. He was teaching her to do photography. He was teaching her to do all of this – help her use photoshop. He was teaching her. Now she thinks she is the photographer. Yes, sure she is because he taught her how to turn the camera on to start with.
Plus another thing, in 2003, now that I am thinking of that, the charge – charge at 2003, the truth is the only thing that happened in 2003 is that she locked her ex‑husband up. She put him in the gaol. That is the only thing that happened in 2003. But nobody bothered to look into her past. She has been doing this before. She is going to continue doing this, and I believe the prosecution should make a big apology for all of this publicly to Mr Flora and – or at least give us those documents that we ask for.
It is not right to be denied justice, and he has been denied justice in every possible way. I understand the prosecution has spent way too much money on this because they have changed so many prosecutors so far, but they still – they are destroying someone’s life, and not one person. His son is having emotional – his 13‑year‑old son is having emotional problems and hard problems. His ex‑wife is here, both of them as a matter of fact, and his sons are here. They keep on coming to support him – everybody. He has never done anything wrong by anyone.
I know I am not a lawyer. I do not know how to use all of those fancy words that have been thrown at us, but at the same time all we are asking is for justice and really, it would be a shame to see an innocent person spend one more day in prison for something he did not do and is being denied the truth and all the evidence.
Also, in my opinion, the prosecution has been prosecuting the wrong person. They should have been prosecuting [CR] for making false accusations, and they should have been prosecuting the policeman who helped her with tampering with the evidence, who helped her to write her statements, who helped her – all of those – to do the wrong thing. They should be prosecuted.
We have evidence for everything, black and white evidence that I am telling the truth, we can prove it, and really for him to be – like I said before, one more day in prison, it is wrong. It has been hard on everyone. I have been having problems, health problems. I have been ignored in every single institution so far. They do not want to talk to me. Like, I do not know what else to say. I really ‑ ‑ ‑
HER HONOUR: Do you wish to take a moment and say something further or ‑ ‑ ‑
MS RADMILOVIC: No, I will ‑ ‑ ‑
HER HONOUR: ‑ ‑ ‑ have you completed – you will respond to the prosecution.
MS RADMILOVIC: Yes.
HER HONOUR: All right, thank you. Thank you very much. Yes, Mr Kissane.
MR KISSANE: Thank you, your Honour. The difficulties that the applicant faces obviously it is necessary to show exceptional circumstances before a grant of bail can be made by this Court and, in my submission, and I set this out in the written submissions that have been filed, none of the matters raised amount to anything like exceptional circumstances such that this Court could grant bail to the applicant.
It must be remembered, your Honour, that the applicant was found guilty by a jury. That trial was examined in some detail, may I say, by the Court of Appeal. The Court of Appeal unanimously dismissed each of the grounds that were sought to be argued at that stage. It appears that to those grounds it has now been added that there has been some negligence or misconduct on the part of the applicant’s defence team. That is a new
ground and, in my submission, the chances of that succeeding in a special leave application are remote.
The grounds that were argued before the Court of Appeal, as I recall it, caused the Court of Appeal to look at the entire transcript of the trial. It was examined in some considerable detail. It went through each of the pieces of evidence that were in any way contentious, including the evidence of distress which, as your Honour will have read, was the main ground that the Court of Appeal considered and they unanimously dismissed the application on that ground.
So it must be remembered that the applicant has been convicted by a jury, that he has had the case considered by the Court of Appeal and, in my submission, there are no exceptional circumstances shown and can I also say, your Honour, that none of the grounds as I perceive them, in my submission, have any or strong grounds for concluding that special leave will be granted in this case and, in those circumstances, the application for bail, in my submission, should be dismissed. It is not exceptional circumstances that the applicant kept his bail before he was convicted by the jury and it is not exceptional circumstances that it is suggested that he needs to be released to prepare for his application for special leave.
Now, I have set all those matters out in my written submissions. If your Honour has any matters that you wish to raise then I am happy to deal with those. Can I also finally add that it is suggested this morning that in some way the informant or the prosecution is acting in bad faith in this matter and can I simply conclude by refuting that, your Honour. This was a trial that was conducted according to law. The Court of Appeal found that that was the case.
It has also been said, or some frustration has been expressed at the inability to obtain material. As I understand it, the prosecution is now satisfied that Ms Radmilovic has authority to act on behalf of the applicant and will assist in whatever way it can in providing documents. As I understand it, it is not entirely clear that all the things that are being sought are in the possession of the prosecution or are available, but whatever is available in the prosecution brief will be provided if a proper request is made. Unless I can be of any further assistance to your Honour, they are the submissions that the respondent makes in response.
HER HONOUR: Thank you.
MS RADMILOVIC: Your Honour.
HER HONOUR: Yes.
MS RADMILOVIC: We have been asking for those documents since 2009. I have a letter that I brought to the prosecution two months ago. The only response I heard it is being considered. Since 2009 he has been denied the truth. Also, that we need to show exceptional circumstances – we have proof. The jury was poisoned by the prosecution giving out the paper instructions to the jury. The jury – the prosecution is not allowed to do that. Written instructions that gets burned in their heads.
Maybe you need to ask Ms Mandie what she was doing by doing that and plus the police was making deals in front of us. The policeman, Bill Tzounos, he never came to court, to the witness stand. He avoided the witness stand by making a deal with Justin Hannebery in front of us that he will not come. Tibby was never allowed – Mr Flora, sorry, was never allowed to go on a stand to give evidence but instead his record of interview was played to the jury, that was cut to the prosecution’s liking, without Tibby’s consent. Nobody asked him if that is okay. No, they just cut it to the prosecution’s liking. Whatever suited the prosecution, to prove that he is guilty that is what was done. Nobody objected to it. So I really do believe that is a misconduct by our legal representation. There was not one word put of defence for Mr Flora, not one single word of defence. That is all I want to say.
HER HONOUR: Thank you. I propose to deliver an ex tempore judgment reserving the right to correct the transcript in due course.
This is an application for bail, pending the determination of an application for special leave to appeal. On 5 December 2011 the applicant was convicted in the County Court of Victoria of having intentionally injured (count 2) and digitally raped (count 3) a complainant with whom the applicant had had a lengthy relationship. The applicant was acquitted of a further charge alleging that the applicant had raped the complainant a week earlier (count 1).
The applicant received a total effective sentence of six years and two months with a non‑parole period of four years. On appeal to the Court of Appeal of the Supreme Court of Victoria, the applicant’s appeal against conviction was dismissed and his appeal against sentence allowed. The sentence was reduced to a total effective sentence of five years and two months and the Court of Appeal fixed a non‑parole period of three years.
The applicant has filed an affidavit, sworn or affirmed, on 2 December 2013 in support of his application for bail. The applicant is unrepresented and in custody but oral submissions were made today on his behalf by his fiancée, Ms Merima Radmilovic.
The respondent opposes a grant of bail and submits that the circumstances advanced by the applicant in support of bail are not exceptional, that being the test to be discerned from relevant authorities – Chamberlain v The Queen [No 1] (1983) 153 CLR 514 at 518‑519; United Mexican States v Cabal (2001) 209 CLR 165 at 181 [40]. The reason for this high threshold test to show exceptional circumstances has been explained by this Court in United Mexican States v Cabal (2001) 209 CLR 165 at 181 [39]:
“to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned:
·makes the conviction appear contingent until confirmed;
·places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail;
·encourages unmeritorious appeals;
·undermines respect for the judicial system in having a “recently sentenced man walking free”;
·undermines the public interest in having convicted persons serve their sentences as soon as is practicable.”
The applicant has applied for bail chiefly on the grounds that he wants to be released to retrieve documents and evidence to prepare the application for special leave and in particular he wants to have access to the internet. The applicant’s written case in respect of the application for special leave was filed on 5 November 2013. The applicant urges that he was admitted to bail prior to his trial and conviction in the County Court and he did not breach any conditions. He states that he has been a model prisoner whilst in custody. His earliest release date is approximately 12 months away.
It appears from the material advanced, both in writing and orally by the applicant’s fiancée, that subject to a grant of special leave, the applicant seeks to argue grounds of appeal in this Court similar to those argued in the Court of Appeal below, to which he wishes to add grounds that he has been denied natural justice and that the legal team instructed on his behalf failed to represent him properly.
It was submitted orally on behalf of the applicant that the applicant should be granted bail because he has “done nothing wrong and “no one [in the criminal justice system] is interested in the truth”. It was also submitted that the applicant presents no risk of flight and needs to return to work. Further, it was submitted that the applicant’s incarceration is adversely affecting his family members. A suggestion was also made this morning that the prosecution was acting in bad faith and that the jury was “poisoned”.
In Chamberlain v The Queen [No 1] (1983) 153 CLR 514 at 518‑519, Justice Brennan observed that the power of this Court to grant bail:
“rests upon the inherent power to preserve from futility the exercise of the Court’s jurisdiction to grant special leave to appeal and to allow an appeal thereafter.”
His Honour then said:
“in practice the grant of bail pending an application for special leave to appeal to this Court will be more restricted than the grant of bail by courts exercising a general statutory power where there is an actual appeal pending. That is because the cases in which special leave to appeal is sought are usually cases in which an intermediate court of appeal has found neither an appealable error occasioning a substantial miscarriage of justice in the trial nor an error of law affecting the sentence . . .
To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted.”
Today’s case is the sort of case of which his Honour spoke. Subsequently, in United Mexican States v Cabal (2001) 209 CLR 165 at 182 this Court said:
“Ordinarily, a person will be admitted to bail before the grant of special leave in a criminal case only where the Court is satisfied there are very strong grounds for concluding that leave will be granted. The applicant will also need to show that it is likely that the custodial sentence or the greater part of it will have expired before the application for leave is heard.”
The complaints about conviction which are sought to be reargued in this Court include a complaint about the admission of evidence of distress of the complainant, a complaint about the admission of an uncharged act into evidence, a complaint about character evidence and a complaint about a jury note. As mentioned above, there are also fresh complaints about the competence of the applicant’s legal team and about a want of evidence to support the convictions.
The Court of Appeal considered that the applicant’s grounds of appeal against conviction were either not reasonably arguable or should be rejected. The Court of Appeal found the trial was one conducted according to law. The Court of Appeal granted leave to appeal in respect of the ground about admission of distress evidence, then held such evidence was admissible as circumstantial evidence. Further, the Court of Appeal noted that no objection was taken to the admissibility of the evidence or to that part of the trial judge’s charge which related to distress evidence.
In relation to the complaint about the admission of evidence of an uncharged act, the Court of Appeal noted that the evidence was admitted pursuant to an agreement between counsel and agreement was also reached between counsel at the trial as to the scope of the use of this evidence.
The failure to lead character evidence at the trial was dealt with by the Court of Appeal on the basis that a rational forensic decision had been taken in respect of the matter. In relation to the complaint about a jury note, the trial judge directed in accordance with the defence counsel’s request. Further, the Court of Appeal noted that no application was made to discharge the jury.
The fresh complaint about the conduct of the applicant’s legal team raises allegations of misconduct, misrepresentation and, it seems, negligence. These are reasonably diffuse allegations which were not raised in the Court of Appeal. The other fresh complaint, that there was no evidence to support the charges, is not particularised in a manner which assists the comprehension of the complaint. However, the oral submissions described above, which were made today, convey the tenor of this complaint. The complaint was never raised in the Court of Appeal. Furthermore, it was not contended in the Court of Appeal that the convictions were unsafe and unsatisfactory.
Turning now to the sentencing appeal, the applicant succeeded before the Court of Appeal and received a reduction in both the head sentence and the non‑parole period. The applicant appears to seek special leave to appeal on the ground that the reduced sentence is still manifestly excessive, both as to individual sentences and the minimum term to be served before becoming eligible for parole. The verdict of the jury in this case has been upheld by the Court of Appeal and the sentence reduced by that court.
Given the matters described above in respect of the proposed grounds of appeal in this Court, it could not be said that the applicant has demonstrated very strong grounds for concluding that leave will be granted.
It should be mentioned that a decision as to whether the application for special leave will be dealt with on the papers, or by way of oral argument, will be made early in 2014. In the event that the application for special leave is dealt with by way of oral argument that will occur well before the end of the year. Since the applicant’s earliest release date is about a year away, his custodial sentence cannot be described as near completion or likely to expire before the application for special leave is heard.
In all the circumstances, the applicant has not demonstrated exceptional circumstances, whether the factors pointed to are considered in isolation or considered together. The application for a grant of bail must be refused.
Adjourn the Court.
AT 11.59 AM THE MATTER WAS CONCLUDED
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