Grosser v The Queen

[2004] HCATrans 302

[2004] HCATrans 302

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  Nos A258 and A270 of 2003

B e t w e e n -

TONY DOUGLAS GROSSER

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 2004, AT 10.02 AM

Copyright in the High Court of Australia

MR T.D. GROSSER appeared in person.

MS G. DAVISON:   May it please the Court, I appear with MR C.J.B. WEIR for the respondent.  (instructed by Acting Director of Public Prosecutions (South Australia))

McHUGH J:   Yes, Mr Grosser.  How is your hearing?

MR GROSSER:   Reasonable, your Honour, thank you.  Honourable Judges of the High Court of Australia, if it pleases you, I, Mr Tony Douglas Grosser, do not have a lawyer, so must speak myself to this honourable Court.  My friend, Ms Catherine Crout‑Habel, has helped me with this appeal.  I rely mainly on my written documents submitted to this Court for my appeals, but also say I suggest I had a basic right to have a supportive lawyer for my retrial and I was entitled to act in self‑defence in my home where my wife and two baby daughters were on 3 May 1994 under the special circumstances that I was under at the time. 

I suggest it was reasonable for me to dismiss my instructing lawyer, being Mr Oliver Klotz, soon after he took over as my instructing solicitor from the previous instructing solicitor, Mr Robert McKenney, as Mr Oliver Klotz would not follow my reasonable written and verbal instructions for my retrial, No 392 of 1994 in the Supreme Court of South Australia.  Some of my instructions and details are in my affidavit dated 21 June 2001 in book 1 of 2 on page 16 onwards that are before this Court. 

If it pleases your Honours, Mr Oliver Klotz was not ready and prepared at such short notice for my retrial, that was complex, after the Legal Services Commission of South Australia refused to continue funding at a proper rate for my former instructing solicitor, Mr Robert McKenney of 71 Angas Street, Adelaide, who I was very happy with.  Mr Robert McKenney withdrew from my case.  Mr Oliver Klotz would not subpoena my former National Crime Authority Adelaide contact officer of 1992 and 1993, being Ms Virginia J. Lynch.  Ms Virginia Lynch was the National Crime Authority Adelaide office lady, who I told in person at the National Crime Authority Adelaide office on 16 April 1993 around 3.00 pm that they, the National Crime Authority, were in danger of being blown up by a mafia bomb, based on information from a man named Cass, direct to me. 

Ms Virginia Lynch, on 16 April 1993, at the Adelaide NCA office, became very angry with me and after instructions from her to me on this coming bomb topic she escorted me to the lifts and I was to see her again on 20 April 1993 at 2.00 pm to discuss this National Crime Authority bomb topic further, as she said. However, the coming topic that related to the coming bomb was cancelled by the National Crime Authority by a phone call to me on 20 April 1993 around 12.00 noon.  As it turned out, on 2 March 1994, the Adelaide NCA office was blown up by a bomb and the National Crime Authority partner of Ms Virginia Lynch, being Mr Geoff Bowen, was murdered. 

My instructing solicitor, Mr Oliver Klotz, knew my National Crime Authority bomb information and allegations and told me around 22 May 2001, soon after taking over as my instructing solicitor, that he, Mr Oliver Klotz, was a former Commonwealth prosecutor who knew Ms Virginia Lynch and that she was married to a particular person and that he, Mr Oliver Klotz, would not go against Virginia Lynch and that he would not subpoena Virginia Lynch or call her for my retrial.  This was directly against my instructions to subpoena Ms Virginia Lynch.

The Courts are against me, Mr Oliver Klotz told me, and he, Mr Klotz, told me he, Klotz, was the last lawyer I would get.  I suggest, as there was a conflict of interest or at least a perceived conflict of interest between my instructing solicitor, Mr Oliver Klotz, a former Commonwealth prosecutor, as he told me, and myself over Mr Klotz’s desire to protect his former Commonwealth colleague, Ms Virginia J. Lynch from Virginia Lynch’s failings in her duty of care to stop the bomb that murdered her NCA partner, Mr Geoff Bowen, that my instructing solicitor, Mr Oliver Klotz, should have withdrawn from my case.  Instead, Mr Oliver Klotz was keen not to follow my instructions that were, I suggest, reasonable.  So I had to dismiss him in the hope that the second ‑ ‑ ‑

KIRBY J:   How can all this justify holding up a number of police officers outside your home and shooting a huge amount of ammunition at them, including one police officer who was nearly killed?  None of this really seems to me to be relevant to the matter that led you to be charged and trialled. 

MR GROSSER:   If it pleases the Court, your Honour ‑ ‑ ‑

KIRBY J:   Just because you had a concern about these matters does not seem to me to justify in the slightest using the violence that you did.

MR GROSSER:   If it pleases the Court, your Honour, I did not know it was the police at the start of this incident.

KIRBY J:   That is what you say, but they were there for a very long time and you continued firing at them.

McHUGH J:   There was evidence from your partner at the second trial that you said that you were going to take some of them with you before you went to gaol.

MR GROSSER:   That was absolute lies, your Honour.

McHUGH J:   Well, I know, but, you see, we do not sit as a tribunal of fact, Mr Grosser.  That was a matter for the jury.  They may or may not have accepted that evidence, but we have to act on the basis that they did.

MR GROSSER:   Yes, your Honour.  If it pleases the Court, what I am on about it here ‑ ‑ ‑

McHUGH J:   The point you are making about this is going to your legal representation, is not it, your Dietrich point?

MR GROSSER:   Yes, your Honour.  I was forced to represent myself and I am leading up to the reasons why.  I am saying, your Honour, that it was not my fault that I ended up with no lawyer.

McHUGH J:   The problem about it, Mr Grosser, is that the judges who heard this – who was the judge who heard your application at first instance for legal aid?  Was it Justice Duggan or was it Martin?

MR GROSSER:   Justice Duggan, your Honour.  In fairness to Justice Duggan, the honourable judge, I do not think he was aware that Mr Oliver Klotz was a former Commonwealth prosecutor and that there was this conflict of interest or perceived conflict of interest, but there was an affidavit before the court saying that my instructing solicitor, Mr Oliver Klotz, was too close to Virginia Lynch, and that type of thing.  I was not cluey enough, your Honour, to put it into the proper terms regarding the conflict of interest that led up to me having no lawyer.

McHUGH J:   What is put against you by the other side is that Legal Aid was prepared to make available to you senior and junior counsel and solicitor at Legal Aid rates and that you would not have people who were prepared to act on that basis.  What do you say about that?

MR GROSSER:   I had this instructing solicitor, Mr Oliver Klotz, only after Legal Aid would not pay my former instructing solicitor, Robert McKenney.  I was very happy with Robert McKenney, your Honour.

McHUGH J:   But he wanted more than award rates, did he not?

MR GROSSER:   No, I do not think so, your Honour.  They just refused to fund him and they would not pay him for about three months.  He had worked for three months free of charge.  In the end, he withdrew because of lack of funding, and then Mr Klotz came along and at short notice.  He was not suitable, I found out.  He would not try for me, your Honour, that was the problem.  I was gone for all money, as I saw it.  That is why I am suggesting to this honourable Court that there were quite a few reasons why Mr Oliver Klotz was not suitable, and then I was not given time to get another lawyer, even though I kept asking for a lawyer. 

If it pleases the Court, I suggest I could not get a fair trial when my instructing solicitor would not go against the police and my case was between the police and myself.  My defence was that the police were trying to murder me as I knew too much about the National Crime Authority bomb murder, with corrupt police involved as criminals in the murder and other serious police corruption involving authorities and criminals all in the swim of evil together from 1978 to 1994.  This was known to me first hand from my police and business contacts during these years. 

I ask this honourable Court to consider that it was reasonable for me to dismiss my instructing solicitor, Mr Oliver Klotz, who was new to my case at that stage, under these circumstances, and what is written in my documentation book before this honourable Court. 

I suggest, honourable Judges, that the retrial judge, his Honour Justice Duggan, was given false information by the prosecutor, Mr Steven Millsteed, on the number of lawyers I had dismissed since my appeal when the retrial was ordered.  The prosecutor knew or should have known – that being Mr Steven Millsteed – my lawyer details, as I had lodged an affidavit with the Supreme Court on 15 February 2001 on this topic.  Mr Steven Millsteed knew or should have known from my 15 February 2001 affidavit what lawyers had left my case due to ill health, other commitments or other reasons.  These are detailed on page 4 to 12 in book 1 of 2 before this Court. 

I say the prosecutor, Mr Steven Millsteed, misled the court and retrial judge, his Honour Justice Duggan, by saying that I had sacked no less than eight lawyers since the hearing of the appeal.  That was completely false, honourable Judges.

McHUGH J:   But Justice Martin corrected that, did he not, when that was put to him?

MR GROSSER:   I am not sure about that, your Honour, but this is one of the reasons why Justice Duggan made me represent myself.  I am suggesting, your Honours, that the prosecutor, Mr Steven Millsteed, painted a picture in the retrial judge’s mind that I was going to keep sacking lawyers.  He said I had sacked eight already and that was false.  I had sacked no more than three at the most, including the last two, so there was only one before that. 

KIRBY J:   Who were the three that you sacked?

MR GROSSER:   That was the instructing solicitor, Mr Oliver Klotz, and the man that was helping him, the last two.  That was another man.  The previous one, I believe, was a senior counsel that was thinking about taking the job.  He did not prove suitable, but he never did any work in the retrial or anything.

McHUGH J:   What Justice Duggan said to you was that you were faced, and I am faced with the fact that the Legal Commission have indicated preparedness to assign competent counsel and a competent solicitor, and I cannot direct them to be choosing somebody else and nor can you.  That is the situation.  You would not accept what the Legal Services Commission were prepared to offer you, so the court said the trial had to go on.

MR GROSSER:   If it pleases the Court, your Honour, I was prepared to accept the Legal Services Commission offer of funding, but I wanted a reasonable lawyer that was going to try for me and at least subpoena Virginia Lynch and some of the police I wanted subpoenaed to try and prove that I was innocent and that the police had good reason for wanting to kill me.  That is what I needed, your Honour. 

I say, honourable Judges, that the prosecutor’s false information to the retrial judge helped result in me having no lawyer and the same honourable judge, Mr Duggan, making me act for myself against my will.  I kept asking the court for a lawyer after I had dismissed Mr Oliver Klotz to act for me, as I was not qualified in law and had no funds to pay for one.  I was in the hands of the Legal Services Commission of South Australia for funding of a lawyer, who stopped and started their funds at their will. 

I asked for a lawyer, Ms Fiona Lindquist, after I had dismissed Mr Oliver Klotz, but she was not available, and, honourable Judges, I even lodged a High Court appeal to this honourable Court, the High Court, to try to stop my retrial going ahead so I could have a lawyer act for me.  That was High Court No A33 of 2001.  I clearly wanted a lawyer who was to try for me so I could get a fair trial and a proper trial, but was denied a lawyer through no fault of my own, I say. 

I had no control over the Legal Services Commission of South Australia funding that ended up not continuing to pay instructing solicitor, Mr Robert McKenney, who withdrew from my case.  The Legal Services Commission of South Australia gave me Mr Oliver Klotz, who had a serious conflict of interest with my case as instructing solicitor, the conflict of interest not known to me, and the importance of it, until after he was my instructing solicitor, or I would never have hired him.  This surely cannot be my fault, I suggest. 

The prosecutor, Mr Steven Millsteed, giving false information to the retrial judge on the number of lawyers I had sacked, surely not my fault, I suggest, of the prosecution’s faulty information.  Then the honourable retrial judge, his Honour Justice Duggan, not giving me time to get another instructing lawyer just prior to the retrial starting, say, even 14 days or so, considering I was in prison and restricted to see people since 1994 – I suggest his Honour Justice Duggan erred on this lawyer topic by making me act for myself against my will, considering the combined unusual circumstances of my case that left me without an instructing lawyer by no fault of my own, I suggest, in my complex retrial. 

It is pleases this honourable Court, I suggest that my combined circumstances were most unusual that resulted in me having no instructing solicitor, so no solicitors for my retrial, by no proper fault of my own, and therefore I have a case that my retrial was unfair – No 392 of 1994 in the Supreme Court of South Australia.  If is pleases you, honourable Judges, I ask for your help in relation to my arrest warrant issued on 3 May 1994 in the Adelaide Magistrates Court.  I ask that you consider also that the arrest warrant may have been invalid. 

I ask that you consider also that I was convicted on mistakes and lies by some Crown witnesses on critical points, especially my NCA contact officer, Ms Virginia Lynch, who could not tell the truth over my bomb warning to her because they would, in her words, sack me and sue me, as she told me herself in a previous contact in relation to my phone being tapped by South Australian police.  Even if she admitted that, she told me, they would sack me and sue me, her exact words.  She had to tell lies, I suggest, under oath in my retrial in court to protect herself and the National Crime Authority, as happened.

If it pleases you, honourable Judges, I ask that you consider this whole event started by a mistake or a lie in relation to the warrant for my arrest on 3 May 1994 being issued on false information to the Adelaide Magistrates Court.  The South Australian police knew very well that I was dealing with the Nuriootpa Medical Centre on 2 May 1994 by the medical certificate I supplied to the Adelaide Magistrates Court on 2 May 1994, the day before this event started that the charges resulted from.  Yet the very South Australian police, in court on that day, 2 May 1994, Tony Jones and others, who heard the information about the Nuriootpa Medical Centre and myself went along with false information that I was in the Nuriootpa Hospital, as the court was told the next day, 3 May 1994. 

When the Adelaide Magistrates Court heard there was no Nuriootpa Hospital, the magistrate issued the arrest warrant for me on 3 May 1994.  I was before the Adelaide Magistrates Court on business charges that were later all dropped by the DPP of South Australia, yet immediately after the arrest warrant was issued on 3 May 1994, the South Australian police STAR force elite squad raided my home in force.

GUMMOW J:   Now, Mr Grosser, you have a complaint about sentence as well, do you not?

MR GROSSER:   Yes, your Honour, I do, if it pleases the Court.

McHUGH J:   Perhaps you should deal with that, because we have studied all these papers and I have to tell you, Mr Grosser, that your case in relation to conviction is certainly not a strong one, despite your submissions, but you have been given a very long sentence and your time might be better spent dealing with the question of your sentence, as to whether it is ‑ ‑ ‑

MR GROSSER:   Yes, your Honour, thank you.  I have just one more think I would like to say on this issue and then I will go on to sentencing, thank you.  If it pleases this Court, I ask that you take into consideration there may have been a conflict of interest between the retrial judge, his Honour Mr Duggan, in my case as I was reporting and giving him evidence on the Royal Australian Air Force police involved in drug running and serious corruption with Royal Australian Air Force police and South Australian state police working together in organised crime, one Royal Australian Air Force policeman, being my uncle, Mr Robert Frank Grosser, as very corrupt.  His Honour Judge Duggan was at the time of my retrial the Judge Advocate‑General of the Australian Defence Force.  I found that out after the retrial. 

KIRBY J:   I think you are going into a conspiracy theory now, and that is not really helping your application.  I would support what the other Justices said, you should turn to the sentence appeal.  After all, you got leave from the first Full Court, did you not, the Court of Criminal Appeal?  They obviously thought there was something in your complaint that it was excessive.  Then it went to a differently composed court and it was rejected.  There is a suggestion that you are not entitled to some allowance for the fact that you are kept in protection.  You are kept under protection, are you not?  And that has extra burdens on it, does it not?

MR GROSSER:   Yes, your Honour.

KIRBY J:   What are those extra burdens?  What is the extra burden of protection?

MR GROSSER:   The extra burdens are, your Honour, we get a lot less outside yard time, we are locked up a lot more.  As soon as there is any problem, the protectees are locked down.  I only complained a few days ago to the Ombudsman that we were locked down nine days recently.

KIRBY J:   Well, when I sat in the Court of Criminal Appeal in New South Wales, that was regularly raised and regularly taken into account in reducing the sentence on prisoners. 

MR GROSSER:   Thank you, your Honour. 

KIRBY J:   There is some suggestion in the Crown’s submission that that principle does not apply in South Australia.  I have not the slightest idea of why it should not.  The burden is the same on a human being whether they are in New South Wales or in South Australia.  If it is said there is something peculiar about South Australia that cuts it off from that general principle, then maybe that is something we should look at.

MR GROSSER:   Yes, your Honour, I would appreciate that, and there are other burdens ‑ ‑ ‑

KIRBY J:   After all, there must have been a reaction at the first Court of Appeal that the sentence was apparently excessive.  Nobody died in this event, although one of them came very close to it, within minutes, as I understand it, and you continued shooting at others and five police officers were put in risk of their lives.  So it is a very, very serious offence, but in the end nobody died.  The fact is that it has been said that the courts in South Australia do not take into account protection, and I just think that is, on the face of it, plain wrong. 

MR GROSSER:   Thank you very much, your Honour.

KIRBY J:   That is just my opinion.  The other Justices may not agree.  I used to have this every week in the Court of Criminal Appeal in New South Wales.

MR GROSSER:   Thank you, your Honour.  If it pleases the Court, in relation to my sentence, I ask that you consider please that the Legal Services Commission of South Australia refused to fund a lawyer to do my sentencing work and submissions, therefore I could have no lawyer for the sentence process, I suggest, by no fault of my own.  I could not have a lawyer because they would not give me any money for a lawyer.  This was separate from the actual trial.  This caused me to be given a longer sentence, I suggest, than I should have received, as a good lawyer would have shown the honourable sentencing judge, perhaps, that I was sorry that people were hurt, called medical evidence to support a more lenient sentence on me, other precedent cases to help support a more lenient sentence on me, and whatever else a good lawyer does to get his client as small amount of gaol time as possible under the law. 

I suggest, honourable Judges, that the sentencing process failed by me having no lawyer and therefore getting a longer sentence than I might have.  Your Honours, that is about all I would wish to say on sentencing except that, with the burden on the protective prisoners, we also have no night‑time activity and other things, your Honour, that perhaps could be dealt with later.

McHUGH J:   Well, the trial judge said that he took into account the fact that you were held in close confinement.  He said that at page 258 of the book at line 16.  The Court of Criminal Appeal accepted that as well.  So it does appear that the court did take into account the fact that you were going to be held in close confinement.  In fact, you were held for 22 months in solitary confinement, were you not?

MR GROSSER:   Overall, that is right, your Honour, yes.  Your Honour, I am not sure if the sentencing judge considered close confinement to be in protection, I am not sure.

McHUGH J:   Well, at page 258 of the appeal book, line 16, he said:

I accept that for a lengthy period of time you have been held in close confinement and that this is a relevant factor to take into account, particularly as it may extend for some time into the future.

MR GROSSER:   Yes, your Honour.  And I ask please that you take into account that the first trial judge…..gave me the same sentence as the second judge, and the first judge, of course, had no opportunity to take any discount into consideration regarding protection, because it was never raised.

McHUGH J:   Well, except that the second trial judge, Justice Duggan, approached the matter independently.  He said that in the circumstances he could give a lesser sentence than 22 years.

MR GROSSER:   Yes, your Honour, and I suggest ‑ ‑ ‑

KIRBY J:   Let me understand the sequence.  The first trial judge imposed a sentence on you.  At that time were you kept in solitary confinement and/or protection, and was that drawn to his notice?

MR GROSSER:   I was in the solitary confinement and protection, but it was not drawn to his notice by my lawyers, your Honour.

KIRBY J:   So your complaint is what happened when it went back to the second trial judge, Justice Duggan, on sentence.  He said that he thought that the sentence imposed by the first trial judge looked pretty right, but your contention is that the second trial judge was unduly influenced by the first trial judge’s determination of sentence and did not take sufficiently into account the fact that you were spending, and had spent, considerable time in solitary and protective custody.

MR GROSSER:   Yes, your Honour.  Therefore I served – he actually gave me a longer sentence, I am suggesting, than what the first trial judge did, because the precedents came ‑ ‑ ‑

KIRBY J:   He acknowledged the principle that you do not normally, on a re‑sentence, increase the punishment.

MR GROSSER:   That is right, your Honour.

KIRBY J:   But he did not formally – on the face of things, he did not increase your punishment.  He gave you the same punishment.

MR GROSSER:   Yes, your Honour.

KIRBY J:   But is it your contention that in effect he increased the punishment because he did not take into account the fact that you had spent the time in solitary and protective custody?

MR GROSSER:   Yes, that is right, your Honour.

KIRBY J:   The problem with that is that he says he did take that into account.  What is the answer to that?

MR GROSSER:   I would suggest, your Honour, that the retrial judge, Mr Duggan, erred.  I suggest that he gave me too long, your Honour, under the circumstances of the case and the protection issue.  Also on that, your Honour ‑ ‑ ‑

KIRBY J:   It is 22 years non‑parole, 18 years parole, is it not?

MR GROSSER:   Yes, your Honour.  And I suggest perhaps that the ‑ ‑ ‑

KIRBY J:   And it is five people whose lives were put in danger by continuous shooting at them.  They were law officers, and one of them came within minutes of death.

MR GROSSER:   That is correct, your Honour.

KIRBY J:   I think there were victim statements showing that they were still affected by their experience.

MR GROSSER:   Yes, your Honour.  Your Honour, I suggest that Justice Duggan may have erred in the sentencing process by saying that I was not sorry that people were hurt.  I suggest this came about because I had to represent myself, and it was the way I had questioned the witnesses.

KIRBY J:   Can I explain to you the problem from this Court’s point of view.  Normally we are not a court of general criminal appeal.  We do not just sit and re‑do the work of Courts of Criminal Appeal.  You have to show an error on the part of the trial judge.  It seemed to me that the error was that insufficient attention was paid in this State to the issue of protective custody, but, as Justice McHugh has pointed out, the presiding judge, the judge in the second sentencing proceeding, appears to have addressed himself to that question.  That seems to knock away the error which would allow us to open the door to your appeal.  We do not just sit here to redetermine appeals.

Now, that really leaves you back on the argument that this is a manifestly excessive sentence, and that is a much shakier ground to get into the High Court than if you can show a particular error, a specific error in sentencing.

McHUGH J:   I do not think there has ever been a case in the history of the High Court where it has set aside a sentence solely on the ground that it was manifestly excessive.  There has always been some error that has been able to be picked out.

KIRBY J:   On page 498 of the Crown’s submission it said:

There was no requirement for the Sentencing Judge to give a specific discount for the time spent in protective custody.  Indeed, it is not appropriate to do so.

So the Crown does seem there to be contesting the point about protective custody.  That was the matter that caused me anxiety, but, as Justice McHugh has pointed out, the judge in the second sentencing does appear to have taken that into account, and said that it was proper to take it into account.

McHUGH J:   And the Court of Criminal Appeal, whose error, if any, is what is relevant here, also made the point that it had been taken into account.

GUMMOW J:   Page 454.

KIRBY J:   Well, what did the Crown mean here?  Maybe we will have to ask what the Crown says:

In South Australia the only factor that it is desirable for the sentencing court to nominate a discount for is the plea of guilty –

which is just plain wrong, but it may not be relevant to your case because it does seem as though they took into account the circumstances of your custody.  Whether they took it fully into account is debatable, in my view.

McHUGH J:   Well, Mr Grosser, the red light is on.  You have gone over it, and we have given you more time than ordinarily we give to anybody on these applications, so if you could bring your submissions quickly to an end, there is a matter we want to ask the Crown about.

MR GROSSER:   Yes, your Honour, thank you.  I suggest, honourable Judges, that the sentencing process failed by me having no lawyer and therefore getting a longer sentence than I might have.  That is what I wish to bring to your attention.  A lawyer knows all the laws that I do not, your Honour, and I am sort of – I was on‑the‑job training type of thing.  If it pleases the Court, your Honour, I ask for a copy of today’s transcript to be sent to me please.  Thank you.

McHUGH J:   Yes.  We do not need to hear from you on conviction, Ms Davison.  What do you say about sentence, and, in particular, what do you say about the statement that appears in your submissions that there was no requirement to give a specific discount for the time?  What have you in mind there – some percentage or something, have you?

MS DAVISON:   If your Honour pleases, it is my submission that in this State a practice has evolved whereby a specific discount has been allowed and nominated by the courts in respect of a plea of guilty, and that is done for good policy reasons.  In R v Place, a book that is in our table of cases, it has been specifically referred to.  I contend that time spent in protective custody is, of course, an appropriate matter to be taken into account by the court, and in taking it into account, generally speaking, it will be a factor that has the effect of lessening the sentence that would otherwise be served.  In this particular ‑ ‑ ‑

KIRBY J:   So your submission was directed at the specificity of a percentile discount rather than the entitlement of some allowance in the reduction of the punitive sentence? 

MS DAVISON:   Yes, it was, if your Honour pleases, as discussed by the Court of Criminal Appeal in R v Liddy.  Can I also say that in this particular case there was a question that arose in relation to the nature of the protective custody, there being in this State two levels of protective custody, one being what is called G Division, which is the type of custody that is described by the Court in R v Liddy, the other being what is known as B Division, which is an area in which protectees are housed.  They are housed away from mainstream prisoners, but nevertheless, have the access by the prison to educational facilities, working facilities and the like.  So there are two very different concepts, in my submission, in relation to protection on those matters.

KIRBY J:   If I could indicate the source of my anxiety, it is that we see a whole range of cases coming here.  We had a terrible case recently from Victoria, actual homicide, deliberately effected, and this sentence is considerably greater than the sentence in that case.  Each case is different, that was a case of juveniles, but here we have 22 years and 18 years non‑parole relating to a single incident – admittedly over hours, admittedly with public officers of the police, who are deserving of the greatest protection from the courts – but in the end there was no homicide. 

It just strikes me as a very, very high sentence and I just wonder if there is some error of principle which is of the fourth category in House v The King.  It is one which you cannot put your finger on, but which is nonetheless there, explaining why in a non‑homicide case you have this extremely high sentence, much higher than in many, many cases I have seen here and elsewhere in actual homicide.

MS DAVISON:   If the Court pleases, the facts in relation to this matter are set out in the Court of Criminal Appeal’s judgment at page 453 of the application books.  Whilst there was no death in this case, there was clearly a siege that took place over some 40 hours, with a police officer being injured very early in the piece in that siege and lying there for a number of hours before he could be rescued by other police officers ‑ ‑ ‑

GUMMOW J:   Three hours, I think.

MS DAVISON:    Yes, if your Honour pleases, the siege took place over.  There were clearly volleys ‑ ‑ ‑

GUMMOW J:   No, he was lying there for some hours.

MS DAVISON:    Yes, your Honour.

GUMMOW J:   The siege was 40 hours.

MS DAVISON:    That is right.  The siege was 40 hours, he was lying there injured and unable to be assisted for many hours until he was able to be rescued by police officers, themselves putting their lives at risk to do so.  In my submission, it is a high sentence, but nevertheless it is a sentence that reflects the peculiar facts of this matter ‑ ‑ ‑

KIRBY J:   Well, I am only reflecting in my intuitive response to it what presumably affected the first Court of Criminal Appeal in granting leave to appeal.  Then it went to another Court of Criminal Appeal and they refused the application.  So it seems very high.  It may be that it goes back to a value of human life as such that I feel the law should protect, but your point is that no specific error is shown, that it was an extended attack on public officers, that a number of them had to put their lives at risk, and, if there was no actual death, that was more by the courage of the officers who rescued the detective than the intent of the applicant.

MS DAVISON:    Yes, clearly, your Honour.

McHUGH J:   Was there not evidence that the constable was shot while he was lying on the ground as well?

MS DAVISON:    Yes, there was evidence of that, and that is set out in the outline at page 497.

KIRBY J:   What do you say about the complaints concerning whatever may have been the situation at trial concerning the legal representation in the sentencing process?  Why could that not have been arranged?

MS DAVISON:    Your Honour, the sentencing process is a part of the trial process insofar as there is a need for legal assistance.  Can I say that in respect of the appeal for the sentencing process which, in my submission, is the matter to be focused upon, Mr Grosser was given the opportunity to adjourn his matter before the Court of Criminal Appeal to get representation and he chose to push on – to use the vernacular – on that particular day rather than to take advantage of that adjournment.  So he was given opportunities to do so and did not take them up. 

In my submission, your Honour, there is no error in the judgment of the Court of Criminal Appeal, all the relevant matters have been taken into account, and the sentence is appropriate given the gravity of the crimes that were committed in this matter and appropriately reflected in a long sentence.  Thank you, your Honour.

McHUGH J:  Thank you.  Anything you want to say in reply to that, Mr Grosser?

MR GROSSER:   Yes, your Honour, thank you.  If it pleases the Court, your Honour, the Legal Services Commission clearly would not fund my sentencing submissions and this was mentioned to the sentencing judge, his Honour Justice Duggan, and can be found on page 226 of these books before the Court.  Mr McKenney withdrew and the honourable judge was told – he told me, “Mr Grosser, it appears that you will be making submissions yourself” in relation to sentencing, and he gives me some advice.  He says different things, and I am saying that the Legal Services Commission will not give me any money for a lawyer.  I clearly wanted the lawyer for sentencing, and, your Honour, they would not give me one.  I appealed against their decision and they still would not give me a lawyer.

KIRBY J:   But it is suggested that on the sentencing procedure in the Court of Criminal Appeal, after the second sentence, that you were offered legal representation and you decided to press on.

MR GROSSER:   That is not correct, your Honour.  I was never offered a lawyer at any stage.  The only thing that I was offered was an adjournment to try and get it, but I knew I would not get it because I had already been refused.  They had already refused funding.  I wrote to them and they wrote me a letter back, saying that I was over the cap and I was not getting any funding – end of the matter.  All I could do was appeal or take them to court or something.

KIRBY J:   In the end, whether something miscarried in getting you a lawyer at that stage is less important than the result and whether some error has been shown and what came out of it.

MR GROSSER:   Yes, your Honour, thank you.  I ask your Honours to take into consideration the Joseph O’Neil Case, where the judge in Mr O’Neil’s case, on page 443, gave Mr O’Neil an additional discount for being in protection.  The honourable judge said:

It is common ground that the burden of imprisonment for you has been, and will continue to be, greater than is the burden for mainstream prisoners.

That is on page 2 of 3 on page 443 of this book before the Court.  The honourable judge in the O’Neil Case extended the amount of credit to the fact that he has been and will continue to be in protective custody.  I would ‑ ‑ ‑

KIRBY J:   Yes, but Justice Duggan said that you were entitled to credit for the fact that you were in protective custody, so that the same principle is applied.  What is suggested by the Crown is that you are not entitled to a specific discount as developed for pleas of guilty.  You are not entitled to a one third discount.  You are entitled to a discount but it depends on how long you spend in protective custody and in isolation and so on.  It is particular to the case.

MR GROSSER:   Yes, your Honour, and I would suggest that the honourable sentencing judge erred in not taking that into consideration enough in my case – the 22 months in isolation and then also the number of years after that.  I have been in gaol about 10½ years now, in protection all of that time.

KIRBY J:   Are you still in protective custody?

MR GROSSER:   Yes, your Honour.

KIRBY J:   And that means much less yard time for you?

MR GROSSER:    Yes, your Honour, and other quite severe restrictions at times, compared to mainstream prisoners in the State of South Australia.  This was gone through in detail in the O’Neil Case, and I think Mr O’Neil was the first case that went through it in detail, the extra burdens on the prisoners that are in protection.  I suggest, your Honour, that the fact of me having no lawyer helped me get extra time that perhaps I should not have got.  I want to finish, your Honour, by saying that at no stage was I offered a lawyer or even any fundings for my sentencing submissions in the retrial, and that the Crown is wrong on that point.  Thank you, honourable Justices.

McHUGH J:   Yes, thank you, Mr Grosser.  The Court will adjourn for a short time to consider this matter.

AT 10.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.54 AM:

McHUGH J:   The applicant seeks special leave to appeal against his convictions and sentence.  In the opinion of the Court an appeal against conviction would have no reasonable prospects of success.  The Court is also satisfied that no miscarriage of justice has occurred in respect of the conviction of the applicant.  Accordingly, special leave to appeal against the convictions must be refused.

The applicant has also failed to show any error of principle in the reasons of the Court of Criminal Appeal or the trial judge in respect of his sentence.  The contention of the applicant that the trial judge failed to give effect to his close confinement while serving his sentence is not borne out by the reasons of the trial judge which show that he took that factor into account in imposing the sentence.  The reasons of the Court of Criminal Appeal also show that it took that matter into account in considering the adequacy of the sentence imposed on the applicant.  Although the sentence of 22 years with a non‑parole period of 18 years imposed on the applicant is a very high one, this Court is of the opinion that an appeal against sentence would have insufficient prospects of success to warrant a grant of special leave.

Accordingly, special leave to appeal against sentence must also be refused.  The Court directs that a copy of today’s transcript and its reasons be forwarded to the applicant.  The Court will now adjourn to reconstitute.

AT 10.55 AM THE MATTERS WERE CONCLUDED