Giovannone v The Queen

[2003] HCATrans 576

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S315 of 2002

B e t w e e n -

PHILIP GIOVANNONE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 2003, AT 12.15 PM

Copyright in the High Court of Australia

MR R.A. BONNICI:   If the Court pleases, I appear for the applicant.  (instructed by S. Moran & Co)

MR R.D. COGSWELL, SC:   If the Court please, I appear with my learned friend, MS J.A. QUILTER, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Bonnici.

MR BONNICI:   Your Honours, firstly, I would rely heavily on the written submissions, particularly the submissions in reply, but putting those to one side, the application book, page 1, with the reading of the indictment that was presented in the second trial:

On 16 November 1994, at Sydney in the State of New South Wales –

Phillip Giovannone –

did an act, namely did ask Trevor HAKEN to provide protection from arrest for a man named “ROCKY” with an intent thereby to pervert the course of justice.

That was the actual charge that went before the jury.

If your Honour’s go to page 14 of the application book, please, between lines 5 and 10 where the trial judge actually defines to the jury:

An act . . . which constitutes a perversion of the course of justice is one which is an adverse interference with the proper administration of criminal justice, and the Crown alleges that the . . . Rocky incidents constitute an adverse interference with the proper administration of criminal justice.

The fact that requests were not acted upon is not relevant.

Skipping the next four lines, line 30:

The charge is a made out if such a request was made.

If we then go, your Honours, to page 78 of the application, between lines 30 and 35 where the Court of Criminal Appeal effectively canvassed this issue about that direction and effectively whether the ingredients of the elements of the facts in this case came within what may be called a definition of the course of justice or the administration of law.  There his Honour said:

The requested assistance charged in counts 1 and 2 fell clearly on the right side (for the Crown) of the distinction drawn by the High Court in The Queen v Rogerson (1992) 174 CLR 268 between interference with police investigations which are not themselves part of the course of justice and conduct which had a tendency to deflect the police from prosecuting an offence, which do. Looking particularly at the second count, it charged that the appellant asked Haken “to provide protection from arrest for a man named ‘Rocky’”. The Crown case, based upon an available interpretation of the intercepted conversation was that the appellant was asking Haken (a police officer) to arrange cover in the sense of organising police at Kings Cross to refrain from arresting and charging Rocky for drug‑related offences stemming from his possession of drugs and/or activities as a street “runner”. The trial was fought on this issue. This constituted an attempted interference in the curial jurisdiction that the police would invoke if Rocky were arrested.

If your Honours go over the page and at paragraph 33 his Honour then says:

It therefore becomes unnecessary to consider the Crown’s alternative submission (on appeal) that the conduct established in relation to the second count satisfied the latter part of s312 of the Crimes Act.

Section 312, as stated there, says, at line 20 on page 79 of the application book:

A reference in the Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.

His Honour then says, “One difficulty with the Crown’s” case and “the indictment” of course, as presented was that it did not mention “the administration of the law”.  But, by definition, I suppose, one could say that if a definition or an explanation had been given of what the course of justice meant that may have sufficed, but that question has been completely put aside.

Your Honour, the problem in this case was that the elements constituting the course of justice – Rogerson’s Case was 1991.  There, of course, the majority found that deflecting potential investigations amounted to perverting the course of justice.  Justice McHugh, on the other hand, basically dissented from that saying that there had to be evidence in relation to a course of justice no matter what its definition, being a deflecting tendency or being some sort of, I suppose, I would call it, tangible prospect.

In my respectful submission, your Honour, what has happened in this case is this and if I could take your Honours to the evidence which is material to be relied upon, it is in the white folder.  It is the listening device transcript and it is at page 39 of that transcript, your Honour.  That transcript of some 40 pages, which was the listening device transcript which recorded the conversation between Trevor Haken and Phillip Giovannone at the Hart Hotel on that afternoon is the whole basis of the case.

So, your Honours, if you look at page 39 where at – I will count it as line 16 where PG says:

Will you get a bit of cover for Rocky?

There is no doubt, your Honours, that that is the request.

GLEESON CJ:   I am sorry, I just have not picked that up.

MR BONNICI:   I am sorry, page 39 and it is line 13 repeated at line 15.  Giovannone says to Haken:

Will you get bit of cover for Rocky?

There is no doubt, your Honour, that is the request and, of course, that also, in effect, becomes the act for which the Crown alleges is the act that starts the mechanism towards whether there is a perverting of the course of justice but, as the trial judge said, and I suppose in some ‑ ‑ ‑

CALLINAN J:   But do you not have to read the words on the second line after that?

MR BONNICI:   Yes, your Honour.

CALLINAN J:   It makes it pretty clear what it means, does it not?

MR BONNICI:   Yes, your Honour, and I was just getting to that.  Now, the course of justice then becomes, if one accepts that:

‘Cause they’re fuckin’ hassling the fuck out of him, they take him in every day.

Slightly over the page Haken says:

Let me let me go and have a yarn a yarn to somebody up there.

Effectively, your Honour, the course of justice is, according to the Crown, those words.

GLEESON CJ:   Suppose the participants of this conversation had spoken a little more clearly and one had said, “I have a dealer in my employ who is out on the streets and the police officers are annoying him by arresting him every day.  Would you please stop it?”  Would that contravene the section?  Could I say, “Will you please stop it?  If you stop it I will give you some money.”

MR BONNICI:   No. If I could put it that way, your Honour, that definitely goes to the intent of the man making the suggestion, if that was the case.  Here, of course, unlike most every other case, the course of justice is always quite evident in other cases.  There are perjury charges, there are possible explanations.  In this case, of course, there were two interpretations.   One was, effectively, was Giovannone asking to protect a street runner; or the other interpretation was, because obviously he had known too much, because the Lebanese gangs did not like him and because, as I think was said at page 23 they had threatened to kill him now and because this Tony had connections with corrupt police.  He was ringing them every time they saw Rocky.

Now, what Rocky was doing, or the available interpretation, your Honours, may go to the intent, if the inference can be drawn from those words.  But, in my respectful submission, before that can be done, here what is missing and does not come within the legs of Rogerson and does not come within any of the definitions, is what is the course of justice?  Is it an element of the charge to be proved before we go to the intent?  To do that, your Honours, it would have to be established, in my respectful submission, beyond reasonable doubt, that the man, Rocky was dealing in drugs.

Now, there may be a suspicion from the interpretation or there may not be, but the issue is in this case the indictment just reads:

a man named “ROCKY” –

And, your Honours, your Honour used the words “arrest” and “charged”.  The interpretation also ‑ ‑ ‑

GLEESON CJ:   Take “search”.

MR BONNICI:   The interpretation all the way through is “search”.  That is exactly right and, effectively, the searches were conducted, it seems, on the say‑so of criminals using corrupt police – not for the proper administration of justice, but purely to hassle Rocky whom they did not like because he knew too much, who had mucked them up and for whatever other reasons.  If your Honours go to page 28 of that transcript, line 10 it is, there Giovannone asks him:

Can’t you talk to someone –

up there?

Well, that’s what I’m thinking about getting back.  Because if I can get back up there, I know the bloke who’s in charge, he’s a bit of a he’s a bit of a square head.

That seems to suggest that he is concerned about Rocky and the “square head”.  It seems to suggest that it might be an honest police‑like manner, but the important part, your Honour, is page 27, because if your Honour goes to page 27, and this is Giovannone saying, which is three‑quarters of the way down the page:

So, you know they probably don’t know who he’s workin’ for or what.  You know they (ui) they don’t want him…they don’t don’t cut it.

Your Honours, that seems to be suggesting, if you take an interpretation, that really he is not there, he is out of it.  But, my point is this, the man Rocky – you cannot just assume that police, on the say‑so of a criminal which is not doubted here, can go and keep hassling a man and searching him every day.  If Rocky was on trial as a man, fair enough, but the words “drug dealer” are not in this indictment.  The words “drug dealer” do not have to be proved.  As the indictment stands, here the course of justice has to be proved beyond reasonable doubt.  Now, it is interesting, your Honours, that ‑ ‑ ‑

CALLINAN J:   It looks as if he is in the market because he is talking about other people having:

something pretty good and even marketable you know, it’s clean, no chemicals . . . Cocaine (ui) cocktail ‑ ‑ ‑

MR BONNICI:   Yes.  In fact, he goes further where Giovannone says, “Get a listening device because he actually hates all these men for whatever they do and for that kind of thing.”  But, equally, your Honour, it is also at page 29 where Giovannone says to Haken:

You ought to be fuckin’ Chief Inspector by now with everything I’ve given you.

There is obviously a combination here of talk and bravado and whatever else with these two men, but is not the point here, your Honours, that where is the evidence about the course of justice.

See, in Rogerson’s Case, effectively the course of justice – or before Rogerson’s Case – was tangible prospects of proceedings, proceedings having started.  Now, with the definition of section 312, surely this case must come under the administration of law, but is the administration of law here one which needs to identify a course of justice and is that an element which a jury has to find.

In my respectful submission, your Honour, the man is being searched.  Now, there is no evidence of that, of course, except what is being said there.  There is no evidence of any arrest.  There is no evidence of him even being taken in.  What there is is possible interpretations which are not clear and which are ambiguous.  That may be issues in relation to his intent, but what has happened in this case, there is no identifiable under any definition of the administration of law.  In fact, it is not even defined.

In my respectful submission, your Honour, his Honour the trial judge attempted to define the administration of law by saying that if you come to a possible interpretation of those facts then it can amount to the course of justice, but, as I said, unlike all the other cases which are quoted in the sentencing from Bayeh down, your Honour, the course of justice seems to be some proceeding which is tangible, which is expected to be on foot.

Here, of course, there is no proof.  You could never say that there is any proof or evidence, particularly beyond reasonable doubt, that a course of justice or the administration of law existed from what is here.  The man Rocky, on the two possible interpretations, has to be proved a drug dealer by evidence independent of what may only be possible interpretations.

GLEESON CJ:   But the two competing interpretations that were put before the jury were, were they not, the defence interpretation which was that what your client wanted to protect Rocky from was the unwelcome attentions of people of Middle Eastern appearance and the prosecution case was that what your client wanted Rocky protected from was frequent arrest and search by police officers.  That was the factual issue the jury had to decide.

MR BONNICI:   Yes, on the issue of his intent, I agree.  But, your Honour, in this case, take that aside, where is any proof of the element beyond reasonable doubt that there was in existence a legitimate administration of the law.  It does not say that the arrests were legal.  There is no proof that he was ever arrested.  There is no proof that Rocky effectively was a drug dealer.  It may be a suspicion from what comes out, but there is also consistently with that another interpretation, your Honour, that they are threatening to kill him now.  He knows too much.  If they knew that he was working for and what they might leave him alone.

GLEESON CJ:   What were the competing possibilities as to Rocky’s occupation?

MR BONNICI:   That he was a street runner.

GLEESON CJ:   What do you mean by that, not an athlete?

MR BONNICI:   On the basis that that was what it was.  Now, the interpretation was, “Well, if he is a street runner he must be a drug dealer.”  That is the interpretation given by the Crown.  The defence interpretation was, well, he has gone to gaol where he served a sentence for the two caps in his mouth.  He has come out of gaol.  He said he is clean and, basically, he says he comes here, which I assume is the restaurant.  It seems that Giovannone, from the restaurant, gives him a job.

Now, is the job one dealing in drugs or is the job one of spruiking for the restaurant.  Either way, whatever he is doing, every time he is seen actually physically going on the road by Tony or the other gangs he is actually - the police, who are obviously corrupt, are rung up and they are taken in.  Now, if this was a – unlike even Rogerson’s Case where there was evidence that money was deposited, 100,000, and the Bentley car was ‑ sort of false documents were made to buy it.  Here there is none of that evidence.  Here the whole of the evidence for the course of justice, or the administration of justice, your Honour, comes from the interpretation of those words.

GLEESON CJ:   Now, if the possibility is that he is just a spruiker for a restaurant, what do you make of what is said on page 40 where Haken volunteers the advice to your client that the best way to look after Rocky is that he should:

keep his head down –

and that he should:

Keep keep off the main street –

and then he will –

be alright.

MR BONNICI:   The problem with that is, of course, your Honour, coming from Haken, again, it raises suspicions, but remember, the course of justice here is being defined not as the administration of law, because there is no definition of that, but it must be the administration of law and the proper administration of law.  That is what has been lacking.  It should have been for the jury to determine in this case whether there was administration of law and not just, effectively, an attempt, as it seems to be when you read page 39, they are taking him in illegally.

You see, the Crown indictment does not specify drug dealer because it could never prove that beyond reasonable doubt.  So, how can you possibly go that quantum leap.  It is very easy to do, your Honour, I think, if you look at it closely, because in this case the administration of justice - and here is your Honours’ chance to actually define this - what is the perversion?  Is the course of justice, now that we have in the definition of 312:

the administration of the law.

This cannot come under the orthodox proceedings of the course of justice so it had to come under the administration of the law and it should have been a matter for the jury to determine whether drug dealers ringing up corrupt police to do illegal searches – and, by the way, there is no proof of arrest or charging, your Honour – can be constituted as part of the administration of law.  That has not been defined and this is unique in that way.  That is the point.  It is a subtle point, but it is a very real point here because there is no evidence to suggest here that Giovannone believes there is going to be any charges or anything against him.  His main concern seems to be that this man is really being hassled by corrupt police who really have no justification for illegally searching him.

GLEESON CJ:   It looks as though, from the bottom of page 27, that whatever is the market in which Rocky is operating it is the market in something that gives you a quick, instant rush.

MR BONNICI:   Your Honour, that is a difficult case because it seems to suggest here – they are talking about a lot of general material but nobody defined the administration of the law.  Your Honours, if this is a case which says that the administration of the law for the purposes of “perverting . . . the course of justice” can be any movement by any police, corrupt or otherwise then it is different, but here ‑ ‑ ‑

CALLINAN J:   Was any request made for particulars.

MR BONNICI:   Yes.

CALLINAN J:   Where was it?  Do I see that anywhere in here?

MR BONNICI:   No.  The request for particulars was made and the particulars that came, your Honours, were basically what the indictment says:

protection from arrest –

and prosecution.  The arrest, of course, could have been legitimate.  The interpretation is there that they were hassling him illegally, effectively, one might think, but my point is there is no evidence either way for a jury to determine where there was an administration of the law.

CALLINAN J:   But there was no request for redirections, was there, to ask – was there?

MR BONNICI:   It goes further than that, your Honour.  I think the application – certainly, the grounds in the Court of Criminal Appeal were based on Justice McHugh’s judgment in Rogerson.

CALLINAN J:   No, but at the trial was there any reason for – there was not, apparently, if I look at page 31 of the application book.

MR BONNICI:   Of the application book, yes, your Honours.

CALLINAN J:   In other words, there does not seem to have been any complaint that the trial judge failed to define for the jury a course of justice in the way in which you now say it should have been done.

MR BONNICI:   Except for this, your Honour.  There was an application that the matter be taken away from the jury, as I understand it, on that very issue.

CALLINAN J:   Was there?  That is right, you reserved the point.

MR BONNICI:   Your Honour, I also, when I did the 5F application, his Honour Judge Flannery did say before we got leave on the stay application that there was no definition of the administration of law.  See, Rogerson’s Case was trying to incorporate the administration of law.  We do not need that now.  We have section 312, but, unfortunately, section 312 has not been defined.  If this case is a fact then does the jury have to decide whether there is an adverse interference with the administration of law.

GLEESON CJ:   Yes, thank you, Mr Bonnici.

MR BONNICINI:   Thank you, your Honours.

GLEESON CJ:   We do not need to hear you, Mr Cogswell.

In this case we are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed.

We are going to reconstitute the Court for the next case, so we will adjourn now and resume at 2 pm.

AT 12.39 PM THE MATTER WAS CONCLUDED