Frugtniet v The Queen

[1998] HCATrans 6

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S114 of 1996

B e t w e e n -

BRIAN OWEN REGINALD WORRELL FRUGTNIET

Applicant

and

THE QUEEN

Respondent

Application for extension of time and expedition

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JANUARY 1998, AT 9.30 AM

(Continued from 9/1/98)

Copyright in the High Court of Australia

HIS HONOUR:   Yes, Mr Papas.

MR PAPAS:   If it please your Honour, the applicant during the week has put together what is headed "Index of Documents".

HIS HONOUR:   I have seen the documents and I have looked at, I think, what are the relevant parts of it.

MR PAPAS:   If I can apologise, your Honour, there is much of it that is not relevant to the matters that were raised last week and I am indebted to your Honour indicating that you have looked at the relevant matters.  Would your Honour permit me to very briefly address you on these issues?

HIS HONOUR:   Yes.

MR PAPAS:   The material before his Honour consisted of an application in writing.  Sorry, your Honour, might I take one step back?  Because this is an in camera proceeding which is closed to the public and which is, in effect, a secret hearing as it should be in accordance with the legislation, the applicant in these proceedings still does not know what happened before his Honour.  That is one of the issues that makes it difficult to know exactly what was before his Honour.  What I am putting to your Honour is drawn from inference by reference to transcript references where Mr Vickery was asked questions on other occasions and by reference to the document itself which is described in the material at No 14, pages 184-192.  It is head "Copy of Application for Listening Device Warrants Deponent: Detective Sergeant Philip Vickery".  That is at page 184 of the book, but it is in the form of a memo, "To:  Robyn Selby, Legal Support Unit, Re:  Application for Listening Device", even though it is signed by Mr Vickery.  So, by inference, your Honour, it is submitted that that was before his Honour Justice James.  Now, I cannot say to your Honour that is so.

HIS HONOUR:   This is where the difficulty lies, is it?

MR PAPAS:   It is.  One way of resolving the difficulty would be to call for the Supreme Court file and Mrs Frugtniet was, on behalf of Mr Frugtniet, suggesting that subpoenas be issued and all sorts of things and with respect to her desires to do that it appeared to me that that was not an appropriate course when this is an application to reinstate an appeal as opposed to the actual hearing of the appeal itself and, secondly, when one takes into account the sentiments of the Court in Mickelberg, if that material is to be categorised as fresh evidence - and, your Honour, I do not categorise it as

such but if it were to be categorised as such then the last thing the High Court would be doing would be granting leave to issue any subpoenas.

If it is, in fact, to be categorised as a court record to satisfy another court or the Court of Appeal or an administrative process as to what happened in the administrative function of issuing the warrant, then it might well be that it is not fresh evidence, and there is material in Mickelberg that I can take your Honour to which supports it.  I do not think that it fell from your Honour but it might have been from the learned Chief Justice at the time regarding the caveat on material being produced at the High Court to explain what happened down below.  Your Honour, that is the only way to be sure what happened. 

The rest of the material that is being produced is the warrant itself.  There is a report signed by Detective Vickery which suggests that he was the officer who swore that application that he was in charge of the listening device warrant and that he was reporting back to the court.  It is not clear whether that report was given to his Honour because the legislation itself - I am not sure if your Honour has had access to the legislation at the time?

HIS HONOUR:   No, I have not seen the legislation.  Do you have a copy of it there?

MR PAPAS:   I have one copy, I am afraid, your Honour. I tried to get more copies but I most certainly will hand this up to your Honour but if your Honour would let me first of all just quickly identify the legislation. Section 19 of the Listening Devices Act 1984, No 69, provides for a report.

HIS HONOUR:   Does it provide for the material that is to be laid before a judge in seeking a warrant?

MR PAPAS:   It does.  It, in section 16, provides:

Upon complaint made by a person that the person suspects or believes -

the usual things, "prescribed offence":

the Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of the listening device.

That is section 16(1).  In section 16(2):

In determining whether a warrant should be granted under this section, the Court shall have regard to -

(a) through to (e): 

(a)  the nature of the prescribed offence.....

(b)  the extent to which the privacy.....is to be affected;

(c)  alternative means of obtaining the evidence.....

(d)  the evidentiary value of any evidence sought to be obtained; and

(e)  any previous warrant.....

(3)  Where a warrant granted by the Court under this section authorises the installation of a listening device on any premises, the Court shall, by the warrant -

and then what is authorised.

HIS HONOUR:   There is nothing in it which indicates the form on which material is to be placed before the issuing judge?

MR PAPAS:   No, your Honour.  Section 21 is headed "Proceedings under this Part".  Subsection (1), it will:

be conducted in the absence of the public.

(2)  The proceedings in, and the practice and procedure of, the Court under this Part shall, subject to this Part and the regulations, be regulated by rules of court and, without limiting the generality of the foregoing, any such rules of court may make provision for or with respect to -

(a)  the manner of making complaints to the Court under sections 16 and 18;

(b)  the manner in which warrants are granted or directions are given under this Part; and

(c)  the exclusion of persons from the Court and the prohibition of the publication or disclosure of any matter connected with the proceedings in the Court.

Now, the Rules of the Supreme Court that were relevant at the time, as I understand, were suspended in 1995 but were in operation in 1991. The appropriate relevant rules are contained in Part 77. "Procedure under various Acts" is the heading of the Rules, and it is under Division 18, "Listening Devices Act 1984", and it is rules 71 through to 73. When one has access to those, your Honour, there is no detail at all. I will read the rules out to your Honour. It might be better than trying to paraphrase.

Part 77, Division 18, rule 71:

Application

71.  This Division applies to proceedings under the Listening Devices Act 1984 (the "subject Act").

Assignment of business

72.  Business under the subject Act shall be assigned to the Common Law Division.

Warrant

73.  A warrant under section 16 of the subject Act may be in the prescribed form.

So, the rules are silent.  I have not had the opportunity to see if there are any relevant regulations, your Honour, I just do not know.

HIS HONOUR:   Yes.  How then did this material come to be able to be identified by Mr Neil Smith in the affidavit which is item 10?

MR PAPAS:   It is not clear to me, your Honour.  Mr Neil Smith was acting on behalf of Edward Seyfarth and, in support of the application that he was taking on that person's behalf before the Supreme Court to seek to overturn the listening device warrant, Mr Neil Smith has produced this material.  It is not clear to me where it was obtained from other than during the course of the Melbourne proceedings there was a multiplicity of subpoenas issued to various agencies:  Australian Federal Police, New South Wales Police, DPPs, to as many people as could be thought of.  That was during the period in 1995 and thereafter and the only assumption I can make, your Honour, without any other information, is that it was somehow turned up during that process.  I have sought instructions and my client does not know where it originally came from.

So, the situation is that it has been discovered; on its face, it appears to be the relevant material; it quite clearly is couched as an application; and the only way I can think of to properly bring the material before a court would be to seek the production of the file.

HIS HONOUR:   There would be another way, would there not, and that would be to get the evidence from Mr Vickery?

MR PAPAS:   Yes, or Detective Shiliro for that matter, who is present in Court and who, I understand, was also at the proceedings.  But, your Honour, that is so,  Detective Vickery is the person who is named as the person who is running the case, so to speak, and he would be able to state specifically - - -

HIS HONOUR:   I do not know who can but, I mean, there must be somebody who made the application who is able to state what material was laid before the judge.  I mean, as I understand it, what you would be concerned to do would be to establish that the statement that appears at page 184 and the following pages came to the attention of Mr Justice James, is that right?

MR PAPAS:   Yes, your Honour.

HIS HONOUR:   Now, is that the only document, in effect?

MR PAPAS:   Yes, your Honour.  The previous page, page 183, is in fact - appears to be an affidavit; at least, an acknowledged statement by Robyn Patricia Selby who was the police officer in charge of presenting the application.  She avers that she in fact went, on 25 November, to Mr Justice James' chambers and "presented to him an application" and that his Honour issued - - -

HIS HONOUR:   But what you are lacking at the moment is anything which identifies this document as being the document which was laid before Mr Justice James.

MR PAPAS:   Yes, your Honour.  All I have is inference:  references by Detective Vickery to preparing a document; the preparation, swearing of a document, but I have no identification that this document - even though one could draw an inference on the balance I suspect - is the document.  Your Honour the other way of getting the appropriate information would be to have Detective Vickery or, for that matter, Detective Shiliro who was part of the process swear an affidavit deposing as to whether this is the correct
document.  That would then make it properly before the Court.  I accept for the moment that my link of material is not complete, your Honour.  It was

produced because, at the very least, it is suggestive of the sort of material that could be produced to a Court considering the special leave issue.

HIS HONOUR:   Mr Papas, for my part at the moment, nothing but this aspect of the matter would warrant the granting of your application.  I think this matter, subject to what your opponent has to say, could command the consideration - I will put it no higher - of a Full Bench on an application for special leave, but one has to get to first base.

MR PAPAS:   Of course I understand that, your Honour, and I do not want to make excuse for the applicant.  It is really - - -

HIS HONOUR:   No, it is not a question of excuse.  It is just a question of ‑ ‑ ‑

MR PAPAS:   It is a situation where it might well be my opponent - - -

HIS HONOUR:   It may be a matter for Mr Berman to say what his attitude is.

MR PAPAS:   Yes, that might be the case, your Honour, yes.

HIS HONOUR:   What do you say, Mr Berman.

MR BERMAN:   May it please the Court.  Your Honour, in my submission, the matter should be dealt with in the Court of Criminal Appeal before it comes to this Court, for two primary reasons.  The first is it may not be necessary to come to this Court if the applicant succeeds down below.  The second is this:  the matter which is at issue is predicated on the assumption that at the time of the Court of Criminal Appeal hearing the applicant did not know that it was Mr Justice James who dealt with the listening device application.

There is material which indicates to the contrary which the New South Wales Director of Public Prosecutions only became aware of yesterday because it flowed from the Victorian court proceedings.  Now, that means that there are disputed matters of fact as to the very basis of this application and those matters, in my submission - - -

HIS HONOUR:   That is as to the material before Mr Justice James and the knowledge that the present applicant had of the relevant facts at the time of the hearing of the matter by the Court of Criminal Appeal?

MR BERMAN:   The latter only, your Honour.  I do not anticipate there will be any dispute as to what was before Mr Justice James.  To put it

precisely, I do not anticipate there will be any dispute that the material from pages 184 onwards - that material was before Mr Justice James.  But there is a real dispute as to whether, at the time of the Court of Criminal Appeal hearing, the applicant was on notice that it was Mr Justice James who dealt with the listening device application and, in my submission, that is not a matter that this Court, with respect, can deal with:  the calling of evidence, the cross‑examination of witnesses, if necessary, and for that reason, in my submission, it should be firstly dealt with in the Court of Criminal Appeal.  Those are my submissions.

HIS HONOUR:   Yes.  What do you say about that, Mr Papas?

MR PAPAS:   Your Honour, other than my learned friend, of course, advising me before I came to Court that he was going to raise that matter, that is the first the applicant has heard of that.  If it arises out of the Victorian material I am embarrassed because, of course, I am counsel in the Victorian case and it is not anything I have seen and my learned friend should, at the very least, articulate where that material is, and it might well be that if I see that there is a real factual dispute, I have no option but to say to your Honour that this is premature.

HIS HONOUR:   What do you say about the question of the matter being stood over in order to give you an opportunity to apply to the Court of Criminal Appeal?  Now, there are two questions that would arise there:  one is the question of that court's jurisdiction to entertain the matter and the second would be, of course, any contested questions of fact.  Indeed, it would be a question of that court's consideration if it got to that of the affect of the material upon which you seek to rely upon the constitution of that court because it must be remembered that in that material - and I am speaking of the document from 184 onwards - I do not see any reference to either the present applicant, except in one place, I think - - -

MR PAPAS:   There is no specific reference to him at all, no.  His name is mentioned in the sense of his surname but that is all.

HIS HONOUR:   Yes, that is all, and so far as Dallimore's previous conduct is concerned, I gather that was known to the Court of Criminal Appeal.

MR PAPAS:   It was.  The significance of that statement that was before his Honour - really, I am descending into the argument that I was going to run but very quickly, your Honour, two aspects to it:  first of all, it is material that the reasonably informed observer would understand his Honour had adverted to and considered in determining whether it was reasonable to grant a warrant.  His Honour presumably accepted to a reasonable level, whatever that standard is, but to a reasonable level that Mr Dallimore had said certain things to Mr Vickery and presumably those things were sufficiently weighty and accurate and credible to justify the invasion of privacy occasioned by the grant of a listening device warrant.  When one then compares that level of satisfaction that his Honour must have had to his Honour findings in the judgment of the Court of Criminal Appeal - and there are various page references I could have taken your Honour to - the argument would be that a reasonably informed observer might have - of course, I would argue, would have - a perception that his Honour was operating under a previously formed view of the facts.  Now, that is how that flows.

HIS HONOUR:   That is how the argument would run.

MR PAPAS:   The first point though, your Honour, regarding - I think I have just lost my train of thought but - - -

HIS HONOUR:   Your first point is jurisdiction.

MR PAPAS:   Yes.

HIS HONOUR:   The problem arises in this way, it seems to me, that is, if this application were to be considered by a Full Bench of this Court, the first question that would arise is this Court's jurisdiction to entertain an application in respect of the constitution of the Court of Criminal Appeal and whether that jurisdiction arises under section 73 of the Constitution. Now, that is a significant question.

MR PAPAS:   Yes, it is.

HIS HONOUR:   And if that question were resolved in the negative against you, then that would leave this case in the position where it is now.

MR PAPAS:   Exactly.

HIS HONOUR:   But would not necessarily preclude your application, with whatever fate, to the Court of Criminal Appeal.  If you were to apply to the Court of Criminal Appeal now and that court were to determine its jurisdiction, adversely or favourably, then at least you have a foundation for coming back here on that issue even if there is nothing else.

MR PAPAS:   Your Honour, that is an analysis which is very hard to resist, and if I could simply put the opposing perspective on the jurisdiction of the Supreme Court firstly.  It might well be it is simply a practical matter which requires an application to be made to try and determine the practicalities.  If a Full Bench was reconstituted it would have to be the same Full Bench to start with as I understand what has happened because these sorts of applications, be there a factual dispute or not, need to be made to the judge against whom a suggestion of apprehended bias is being levelled.  Perhaps it is fresh evidence.  The use that could have been made of the statement in cross‑examining Dallimore and Vickery in the trial, as an example, is an issue that - the trial advocate, if he says, "Oh, it would have been good to have had this document when we first had Dallimore because Dallimore says nothing about Brian Frugtniet when he is co-operating with Vickery and giving evidence - assistance to Vickery identifying Edward Seyfarth, Schmalsteig", et cetera, et cetera.  So, I mean, there are very significant issues there.

If the Court of Appeal is functus officio - if that is the right term for a Court of Appeal - if it has completed its task; if it has given its judgment, has it got jurisdiction to entertain an application for it to vacate its order in circumstances of which the constitution of the court that is being challenged or is that a matter that an appellate court has to deal with, true appellate court in the section 73 sense? Your Honour, I have tried with Mickelberg ‑ ‑ ‑

HIS HONOUR:   The problem is a novel one, I think, that is the difficulty, and one thing that leads me to think that the Court of Criminal Appeal solution is the better one is that it seems to me to be a curious and inappropriate procedure for an appellate court to consider the constitution of the court below based upon an allegation of apprehended bias as to one of its members when that allegation has not been considered by that court and, in particular, by that judge.  So, I think that is the hurdle that you face.

MR PAPAS:   Your Honour, that, with respect, is exactly the difficulty I faced as counsel in terms of trying to articulate the proposition.  The corollary or the alternative argument that I have just advanced to your Honour is probably one that the court itself could deal with if counsel

on behalf of the applicant sought to challenge - not to challenge, but to place those issues clearly before the court, then it might well be that the court could say very quickly, "No, we don't have jurisdiction to entertain this."  Then, of course, the Crown might be in a position to appeal that or - and this special leave application would still be on foot.

Obviously, what I am seeking to avoid on behalf of the applicant is that a final door will be closed, your Honour, and that is something that is the most important aspect of the application.

HIS HONOUR:   Yes.  It seems to be a very convoluted piece of litigation.

MR PAPAS:   As I suggested last week, your Honour, unfortunately I suspect that you will be hearing again - perhaps not your Honour, but the Court will be hearing again from this applicant.

HIS HONOUR:   I think what I need to do is to discover from Mr Berman whether you have any objection to the adjourning of this application generally with leave to the applicant to restate it on giving 14 days notice?

MR BERMAN:   No, your Honour.

HIS HONOUR:   Well, that is the order that I will make in that case, but I should indicate that if the matter does come back in those circumstances, at least for my part, I would think that the only questions that are likely to arise are questions of jurisdiction and the sufficiency of evidence to warrant consideration of the constitution of the Court of Criminal Appeal by a Bench of this Court entertaining the reinstated application for special leave.

I should also indicate that if that should happen, it would be desirable for the applicant to have some material available to show that the index which was settled by the Registrar in the first place and the appeal book, in conformity with that index, can be prepared.  Having said all of that, I should say that time has passed and is continuing to pass and that, in itself, will be a relevant matter for any Court considering an application for special leave.

MR PAPAS:   May it please the Court.

HIS HONOUR:   The order for the time being is that the matter stand adjourned with leave to reinstate on 14 days notice to the Registrar and to the respondent.

MR PAPAS:   May it please the Court.

AT 9.58 AM THE MATTER WAS CONCLUDED