Frugtniet v The Queen
[1996] HCATrans 407
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 bail and application for expedition
GAUDRON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 19 DECEMBER 1996, AT 9.29 AM
Copyright in the High Court of Australia
MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by MacElbing & Associates)
MR G.S. HOSKING, SC: If it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (New South Wales))
MR WENDLER: If the Court pleases, before the Court this morning is a summons which seeks certain orders: first, the applicant’s application for special leave to appeal which was filed in June of this year be expedited.
HER HONOUR: It may have been filed in June, but the steps taken to prosecute it have been somewhat tardy.
MR WENDLER: I understand, or at least I am instructed that the application book was due to have been filed, I think, last Monday. That has not occurred. Your Honour will appreciate the applicant is in custody and is without, in effect, legal representation in relation to his application for special leave to appeal.
HER HONOUR: I understand he now has solicitors.
MR WENDLER: So far as this application is concerned, he has. His solicitors in relation to this present application - the application on the summons appear on a pro bono basis, as I do this morning, but I have no instructions in relation to the application for special leave to appeal and, as I understand it, neither do the solicitors have any instructions in relation to prosecuting that aspect of the litigation.
HER HONOUR: I trust you are in a position of some familiarity with it, though, if you are seeking its expedition.
MR WENDLER: Yes, I understand the history and background of it. The alternative order that is sought on the summons or, indeed, an additional order on the summons is that the applicant be released on bail.
This morning there was filed a further affidavit by the wife of the applicant. It is dated today’s date, 19 December, and it consists of three pages, together with an annexure of some 10 pages. The purpose of this affidavit is really to set out or provide a vehicle which sets out the history, to some extent lamentable history, of the litigation before the County Court of Victoria.
HER HONOUR: Yes. What relevance has that got?
MR WENDLER: The relevance of it is this, that if expedition is granted, then there would be no impediment necessarily - and assume for a moment that expedition is granted and the application for special leave to appeal is dismissed, there would be no impediment then - legal impediment - in the transfer of the applicant to the State of Victoria in order to reactivate the proceedings that are in, in a sense, disarray in that State. They have been on foot since 1991 effectively; there are two co-accused who presently are before the Supreme Court of Victoria seeking to challenge the legality of the decision of the County Court judge in Victoria who refuses to sever those two - has made a decision declining to exercise his discretion to sever the two co-accused from those proceedings because the applicant is, as it were, marooned in the State of New South Wales completing a sentence. That, in itself, has a history. Following ‑ ‑ ‑
HER HONOUR: But what is its relevance to this? I do not follow its relevance to either the expedition of the special leave application or the grant of bail.
MR WENDLER: The relevance to the expedition aspect of it is that if the application for special leave to appeal is resolved, then that would effectively allow him to complete or reactivate the Victorian proceedings.
HER HONOUR: Why is that? He will still have some sentence to serve, will he not?
MR WENDLER: Yes, he would. Under the Transfer of Prisoners Act it enables him to be moved to the State of Victoria where he ‑ ‑ ‑
HER HONOUR: Why can he not be moved now?
MR WENDLER: Because as is set out in the annexure to the most recent affidavit, what has happened is this: the applicant was released on appeals bail prior to the Court of Criminal Appeal proceedings from which there is an application for special leave to appeal. When he was released on appeals bail the Victorian proceedings reactivated. He went over to Victoria and together with two co-accused reactivated those proceedings and they travelled until the date of the revocation of bail before the Court of Criminal Appeal on 30 April this year.
Once he went into custody the Victorian County Court totally lost control of those proceedings and two co-accused have been held hostage to that. Now, as a result of him going into custody, there were ‑ ‑ ‑
HER HONOUR: It seems to me it is within his own hands as to whether he applies to be transferred to Victoria or not. This is an Australia-wide Court. I simply do not see what relevance it has got to the special leave application.
MR WENDLER: The relevance is this, that those proceedings go back to 1991. The longer he is, as it were, incarcerated and kept in a situation where it must be extremely difficult in a complex fraud case for him to prepare his defence, instruct his solicitors, instruct his counsel who is in the State of Victoria - his counsel in relation to the Victorian proceedings. Then expedition does have some relevance to that. I mean if the proceedings can be resolved which, as it were, hold him or underpin the legality of his non‑transference to Victoria, as it were, if they can be resolved quickly, that will enable him to get back into the Victorian proceedings ‑ ‑ ‑
HER HONOUR: I do not see - there is no affidavit material about that. in essence, Mr Wendler. I have no material to suggest that his inability to be transferred to Victoria is in any way dependent on the special leave application. There is no affidavit material to that effect.
MR WENDLER: Your Honour, perhaps I can invite your Honour to the most recent affidavit and the annexure. It may assist to some extent. The annexure, perhaps the first paragraph of relevance to your Honour’s concern is paragraph 14. That sets out, on page 3 of the annexure, that:
On 13 March 1995 Brian Frugtniet -
the applicant -
applied to the NSW Supreme Court for bail pending his appeal. He was released on bail on 23 March -
Then it goes on to depose that he then went back to the State of Victoria ‑ the Victorian proceedings then, as it were, recommenced. If your Honour then turns to page 7 of the annexure, paragraph 49, it sets out the situation concerning the applicant ‑ ‑ ‑
HER HONOUR: That is hearsay.
MR WENDLER: Quite, but ‑ ‑ ‑
HER HONOUR: It is important, Mr Wendler.
MR WENDLER: I do not think there is any objection taken to the factual ‑ ‑ ‑
HER HONOUR: It does not matter - I am not going to make orders without much better information than this. If the basis of your application is that you want expedition to enable the matters in Victoria to proceed, I need much better information than that. And I would also need an explanation for the failure of the procedural steps to be taken which are normally taken within set times, which would indeed have resulted in this application probably being listed by now if the proper steps had been taken at the proper times.
MR WENDLER: Yes.
HER HONOUR: And I would need undertakings, at the very least undertakings about application books.
MR WENDLER: Yes. In my respectful submission this matter should then, on the expedition application, be adjourned for a short time to enable that material to be raised.
HER HONOUR: Mr Wendler, no. You are a member of the Bar, you know what the procedures are. I am just telling you that on no basis would those orders be made - would one contemplate, not that they would be made if those matters were done, but on no basis would one even contemplate making orders without explanations for that and evidence about the transfer of prisoners.
MR WENDLER: I think your Honour could appreciate that a lot of this application has been prepared by the wife of the applicant who is unrepresented, and the applicant of course is in custody and it is difficult in custody to mount any litigation effectively and efficiently. I agreed only yesterday to come into this matter and have done what I am able or could do in the short amount of time that is available to me. But, in my respectful submission, so far as the expedition point is concerned, if those matters need to be put on ‑ ‑ ‑
HER HONOUR: Not extradition, we are talking about transfer of prisoners.
MR WENDLER: I am talking about the relevance of the transfer of the applicant to Victoria to enable him to recommence his proceedings there as being a relevant consideration in relation to the issue of expedition. If there needs to be more material, then it is only fair, in my respectful submission, that this matter should be adjourned to enable him to put on that material, because there are two co-accused that are affected by the Victorian proceeding.
HER HONOUR: I am concerned only with the application of the applicant. I am concerned only with the applicant.
MR WENDLER: Yes, quite, but sometimes the fairness of an application has a collateral spin-off and can have some relevance.
Your Honour, the other matters which are really relevant to the issue of bail concern the application for special leave to appeal itself, or rather the timetable for it. On my own inquiries of the Registry this morning, I understand that the earliest date that can be fixed for an application for special leave to appeal in this Court sitting in Sydney hearing criminal applications is on or about 10 April of next year. I am also informed that the list is to some extent congested. The following date I understand to be in June, on or about 10 June in Sydney once again. I have made informal inquiries of the wife of the applicant as to where she is in the preparation of the relevant papers so far as the application for special leave to appeal is concerned. She informs me that she would be in a position to file an application book pursuant to instructions from the Registry and the Registrar before the close of this year’s business at the Registry. I am unable to assist your Honour ‑ ‑ ‑
HER HONOUR: That is before Tuesday?
MR WENDLER: Yes. I am unable to assist your Honour as to whether that would automatically mean that he would reach the April list.
HER HONOUR: Yes, it would.
MR WENDLER: It would, yes. The effect of all of that would be that he will have completed effectively 7/8ths of his sentence because he is due to be released on 20 July 1997. So to the extent that the significant portion of the sentence will have been exhausted, that is of some relevance.
The other matter, of course, which is of relevance to the application is the prospects of a grant of ‑ ‑ ‑
HER HONOUR: It is not relevant; it is critical, is it not?
MR WENDLER: Perhaps I have used the wrong language. I agree it is critical. It is fundamental.
HER HONOUR: And of which there is a ruling against you by Mr Justice Hidden in the Supreme Court who decided the issue - was prepared to consider the matter on the basis that he assumed he had jurisdiction to decide.
MR WENDLER: Yes. The central issue concerning the prospects of success of the application for special leave to appeal is really the issue concerning the correctness in law of the trial judge’s directions or lack of them ‑ ‑ ‑
HER HONOUR: To which no objection was taken at the trial.
MR WENDLER: Yes, his counsel at the trial did not take any objection to it; indeed, his Honour never raised any issue himself concerning the issue as to whether or not any of the Crown witnesses were accomplices and what was the standard of proof required in determining whether any of the witnesses were accomplices and who bore that onus of proof. It is true that in the judgment of the Court of Criminal Appeal there is some treatment of the legal position in Australia concerning this issue.
HER HONOUR: Was leave granted in the Court of Appeal on this issue?
MR WENDLER: No, it was not.
HER HONOUR: So what you have got to do is really establish that the Court of Criminal Appeal, as it is in this State, incorrectly exercised its power to grant or refuse leave in the situation in which the point was not taken at the trial.
MR WENDLER: Yes. In my respectful submission, one of the critical issues, one of the most significant issues that appeared to influence the treatment given by the Court of Criminal Appeal on the issue of the failure to give the accomplice direction and, indeed, the total lack of any discussion between counsel and the judge concerning the issue of the burden of proof and the obligations surrounding the burden of proof on the accomplice issue was concerned was the fact that at the time of the hearing of the Court of Criminal Appeal, of course, the New South Wales Evidence Act was in operation and the court was of the opinion - that is the Court of Criminal Appeal was of the opinion that this was really an academic exercise since the obligation to give the special warning that a trial judge is obliged to give when a jury is in a position where it has to handle accomplice evidence has in fact been abolished.
I am not sure whether your Honour has had an opportunity to scrutinise the relevant sections of the Evidence Act on this topic ‑ ‑ ‑
HER HONOUR: Yes, but I think your larger difficulty is in establishing that there was, on that account, a miscarriage of justice, no point having been taken at the trial. Certainly if you could establish a miscarriage of justice, the change in the law might not be so significant.
MR WENDLER: Quite, but it is my respectful submission that once one can identify a miscarriage of justice, then that is the critical issue and of course this Court would intervene if that can be demonstrated. In my respectful submission, the miscarriage of justice in the judgment of the Court of Criminal Appeal, or really in the way the trial developed before His Honour, I think Judge Gibson, was that the evidence that was given by the three critical witnesses against the applicant, it was clearly open on that evidence that one or more of those witnesses came into the category of accomplices. Either they were principals in the second degree or accessories after the fact, but there is no doubt on the evidence, in my respectful submission, that it was open to characterise those witnesses as accomplices.
Once that became the position, that had a legal consequence and in the circumstances of the trial, the fact that the lawyer did not stand up and say, “Well, look, I need a special direction in relation to these witnesses” ‑ ‑ ‑
HER HONOUR: What, a direction that it was up to your client to establish that they were accomplices?
MR WENDLER: Yes. But once again, the law itself at the stage of the trial ‑ ‑ ‑
HER HONOUR: But is that the direction you wanted?
MR WENDLER: That was a direction that ‑ ‑ ‑
HER HONOUR: That would not have helped your client at all.
MR WENDLER: It would have in the sense that at least one of the witnesses, the person Dallymore, I think his name was, had there been a special instruction in relation to his evidence, that would have ‑ ‑ ‑
HER HONOUR: A direction of that kind is a direction against the interests of the Crown, not against the interests of your client.
MR WENDLER: No, but it is also a direction which goes to the way the jury are to handle certain evidence.
HER HONOUR: Yes. They were directed to look for corroboration, were they not? They were directed that if they were accomplices, the evidence had to be corroborated.
MR WENDLER: Quite, otherwise it would have been dangerous to act on their evidence, but they were not instructed in those terms. In fact, the instruction ‑ ‑ ‑
HER HONOUR: But your complaint - let us isolate this for a moment, Mr Wendler - your complaint is that they were not directed that you had to establish that they were accomplices.
MR WENDLER: The complaint is that in the trial there was some exchange between counsel and the judge as to whether or not in fact one of the witnesses, or more of them, was an accomplice and who carried the onus of establishing that fact.
HER HONOUR: What direction do you say should have been given?
MR WENDLER: In my respectful submission, first, that - does your Honour have a copy of the judgment of the Court of Criminal Appeal?
HER HONOUR: Yes.
MR WENDLER: Could I just invite your Honour to that. It might just be easier to ‑ ‑ ‑
HER HONOUR: But could you tell me what instruction you say should have been given, albeit that it was not asked for at the trial.
MR WENDLER: The instruction that should have been given, in my respectful submission, is that it was incumbent upon the Crown to prove beyond a reasonable doubt that witness X or Y was an accomplice, and if they were of ‑ ‑ ‑
HER HONOUR: That the Crown should have established that?
MR WENDLER: That is right.
HER HONOUR: That is also against - that does not help you because if the Crown fails to establish it, then the evidence can be acted on without danger.
MR WENDLER: Yes. But if the jury were in some doubt ‑ ‑ ‑
HER HONOUR: That they were or were not accomplices?
MR WENDLER: The Crown bore the onus of proof beyond a reasonable doubt that they were accomplices.
HER HONOUR: That they were accomplices.
MR WENDLER: Were accomplices.
HER HONOUR: I can see some value in a direction that they were not accomplices but I cannot see any, from an accused’s point of view, in a direction that they were accomplices.
MR WENDLER: The fact of the matter is that it became confusing because the way that the trial judge directed the jury in relation to the issue of accomplices, and some of that direction is set out on page 5 of the judgment of the Court of Criminal Appeal in the first paragraph, His Honour instructed the jury:
Whether the man is an accomplice or not is a question of fact. It is a matter of law, if a person is an accomplice, this direction must be given.
That was the style of the direction given by the learned trial judge on this issue.
HER HONOUR: So far as it goes, that is correct, is it not?
MR WENDLER: But it just seems, in the context in which it was given and the style of the language, in my respectful submission, seems confusing.
HER HONOUR: The direction you say should have been given would not have assisted your client.
MR WENDLER: It would have assisted the accused to the extent ‑ ‑ ‑
HER HONOUR: And it was not asked for.
MR WENDLER: No, it was not asked for, but the applicant should not be held hostage to that if it can be demonstrated there is a miscarriage of justice. It may well have been incumbent or an obligation on the trial judge to raise this issue, the ambiguity, as it were, on the evidence concerning the issue of accomplices.
There is, nevertheless, some treatment in various Full Courts in this country as to which party carries the onus in relation to whether or not a particular witness is an accomplice and there is academic treatment of this issue as well. It is my respectful submission that that in itself has potential to raise a matter of importance to the criminal justice system and it is worthy of some consideration - or consideration in the special leave inquiry. That was a matter that arose in the trial.
So far as the prospects of special leave to appeal are concerned, it is my respectful submission that the application is not without some prospect at the special leave to appeal stage.
The other matter or combination of matters which are relevant to whether or not there has been a miscarriage of justice in all the circumstances concerns the failure by the trial judge to give any circumstantial evidence direction in the trial and, indeed, that was an application which was made by counsel, to give a circumstantial evidence direction.
So, if the Court pleases, they are the matters which, in my respectful submission, are relevant to the issue of bail. There are some subjective matters set out in the most recent - subjective to the applicant - in the most recent affidavit prepared by the applicant’s wife. Those matters are neither here nor there so far as this application is concerned.
If the Court pleases, I am not sure whether I can put anything more to your Honour.
HER HONOUR: Yes, thank you. Mr Registrar, am I correct in thinking that even if the matter were expedited it could not be heard before April by reason of the Court sittings and the matters listed in Canberra in February and March?
THE REGISTRAR: It could be heard on 13 or 14 February, but those two lists are full.
HER HONOUR: They are full; in that case it cannot be heard.
THE REGISTRAR: It would have to take the place of another matter.
HER HONOUR: Mr Wendler, quite apart from the matter I could not make an order displacing matters that are already listed in circumstances in which the books have not been lodged and in circumstances in which there has been some delay, for example, in failure to serve the Crown for some time. But I can indicate, and I think it is fairly clear from what has already been said, that if the books are filed, then it will get the first listing available which is April.
MR WENDLER: Yes.
HER HONOUR: So it follows from that, Mr Hosking, that I do not need to hear you on the question of expedition.
MR HOSKING: Yes, may it please your Honour.
HER HONOUR: What do you want to say about bail?
MR HOSKING: The Crown opposes bail, your Honour. The Crown opposes bail on the basis that the applicant is a prisoner serving a current sentence. He has shown no exceptional circumstances within the authorities. Perhaps I do not need to go beyond the Chief Justice’s decision in Chamberlain v The Queen [No 1], the essence of which, I submit, is that the Court will only grant bail in such a case in exceptional circumstances and, in this case, there are no exceptional circumstances shown. The fact by itself that the application for special leave will not come on until April, when the applicant is currently due for release on 20 July next year, is not of itself, in accordance with authority, an exceptional circumstance, in my submission. I draw that latter proposition from the decision of Justice McHugh in Chew v The Queen (1991) 66 ALJR 209, which I think we gave your Honour a reference to.
They are my submissions, if your Honour pleases.
HER HONOUR: Yes, thank you. Yes, Mr Wendler.
MR WENDLER: I cannot add anything else, your Honour.
HER HONOUR: Thank you.
As Mr Hosking points out, the authorities of this Court establish that bail pending the grant of special leave will only be granted in most exceptional circumstances and, of course, only if it is necessary to preserve the subject matter of the application and, in addition, if it appears that a grant of special leave is likely. The only circumstance pointed to by way of exceptional circumstances in this case is the fact that there are charges pending against the applicant in Victoria which he cannot have further prosecuted whilst he is in New South Wales and, apparently, where he must remain until this matter is disposed of. That, in my view, is not an exceptional circumstance which would justify the grant of bail pending the hearing of an application for special leave. Accordingly, that aspect of the summons is dismissed.
I dismiss also the application for expedition, the books not yet having been lodged and it being clear that if the books are lodged within time, the matter will take the first place in the list in any event, being in April of next year. I do urge that the books be filed as soon as may be.
The summons therefore is dismissed. The Court will adjourn.
AT 10.02 AM THE MATTER WAS CONCLUDED
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