Ha v The Queen

[2001] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M65 of 2001

B e t w e e n -

KEN PHONG KHANH HA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 AUGUST 2001, AT 12.43 PM

Copyright in the High Court of Australia

MR B.F. MONOTTI:   If the Court pleases, I appear for the applicant.  (instructed by Cole & Magazis)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear with my learned friend, MR R.T. BARRY, on behalf of the respondent.  (instructed by the Director of Public Prosecutions (Commonwealth))

GAUDRON J:   Yes, Mr Monotti.

MR MONOTTI:   If the Court pleases.  First, I seek leave pursuant to Order 69A rule 3(2), that compliance with subrule (1) be dispensed with.  I rely upon the affidavit of ‑ ‑ ‑

GAUDRON J:   Yes.  Is that opposed?

MR HOLDENSON:   Yes, the application is opposed, but it can be dealt with in due course.

GAUDRON J:   Yes, if you would just proceed to the substance of your application.  Do not trouble yourself on the extension of time at this point.  If need be you can deal with it in reply.

MR MONOTTI:   Thank you.  Five clear findings are embodied in the judgment of the Court of Appeal.  First, that the prosecution and trial of the applicant, upon the importation charge, as a principal offender, was in breach of the express terms upon which the applicant was surrendered by the Government of Hong Kong and extradited to Australia.  Secondly, by reason of this breach, the applicant’s conviction was unlawful and had to be set aside.  Thirdly, there were serious matters which gave rise to a substantial miscarriage of justice.

GAUDRON J:   Where does that emerge, and what do you mean by that?

MR MONOTTI:   I mean by that, your Honour, that if there were not then the Court of Appeal would not have decided as it did, to set the conviction aside and ‑ ‑ ‑

GAUDRON J:   It is clear - I think it is not disputed that the applicant should not have been prosecuted on that charge.  The conviction has been set aside.  What more do you mean by “miscarriage of justice” or “substantial miscarriage of justice” than that he should not have been prosecuted on that charge?

MR MONOTTI:   It extends in this way, in that the prosecution - and I would seek to develop this argument more fully shortly, that by prosecuting the applicant on a charge which was not the subject of the request for surrender, there was such a fundamental breach.  The obligation of the requesting State, that is, Australia, has to give rise to an abuse of the extradition process.  The prosecution ought not to have occurred for that reason.  As well, I will be submitting that, as a matter of importance - and this is not a matter the subject of any concluded opinion by any Court in this country - that it is a fundamental condition precedent to the grant of any surrender of a fugitive and the extradition, that the requesting State, upon the grant of the surrender, will strictly comply with the basis upon which the surrender has been requested.  In the event of breach of that condition precedent, then all rights ‑ ‑ ‑

GAUDRON J:   Now, that I do not think is a matter that emerges, really, in these proceedings.  Let us be perfectly clear about the nature of these proceedings before us.  You are seeking special leave to appeal from a decision of the Court of Appeal in which you were successful, or in which your client was successful?

MR MONOTTI:   Yes, your Honour.

GAUDRON J:   What you are saying is in this application, and I can understand it to this extent, that we should have been more successful, notwithstanding it seems that you did not seek to be more successful, however, we could leave that point aside.  What you are now addressing, it seems to me, to be a question that goes to whether or not a trial should proceed on the new indictment?  That is not a matter that is before us.

MR MONOTTI:   Your Honour, I would be seeking to develop an argument whereby, it is my submission that, upon the matter the matter coming before the Court of Appeal in the circumstances in which it did, and upon the court making, what I submit, would be findings necessarily implicit on the way to deciding to allow the appeal and set the conviction aside, that the court was then seized with the matter of the breach of the basis upon which the surrender was achieved.

CALLINAN J:   You are really, in substance, asking for a permanent injunction to restrain the prosecuting authority from proceeding on the extradition offence?

MR MONOTTI:   Yes, your Honour.

CALLINAN J:   What possible authority can there be for that?

MR MONOTTI:   I would propose to take the Court to authority ‑ ‑ ‑

GAUDRON J:   What possible authority can there be for this Court to do it, when what is before us is an application for special leave to appeal from a decision of the Court of Appeal in which you were successful?  I can understand an argument in another forum and another time, but this is an application for special leave to appeal.

MR MONOTTI:   In my respectful submission, the Court of Appeal, upon being seized of the matter and upon deciding as it did, was obliged to have regard to what I submit was the abuse of process necessarily obvious in the basis of the appeal on the basis upon which the court’s decision was made.  Stepping from there, it is my submission that the Court of Appeal then, and indeed this Court on appeal should it be allowed, has inherent power to act as other courts have done to either stop or stay the further prosecution as an abuse of process ‑ ‑ ‑

GAUDRON J:   Even when that is not sought?  Mr Monotti, there are clear rules about the division between the judicial process and the prosecution process.  It would be unthinkable, in my view, for a court to make an order of the kind which you are now supporting, on appeal, in circumstances where the order was not sought.  Unthinkable.

MR MONOTTI:   Your Honour, I am in this difficulty in that I was not before the Court of Appeal on the application, and I have to accept that further relief was not sought and the question of whether or not the court was empowered to direct a new trial as it did was not argued.

GAUDRON J:   The first question you have to address it seems to me is this:  whether the court should have directed an acquittal?  It is only if there is a directed acquittal, it seems to me, that you then get into any conceivable argument there may be about double jeopardy, or perhaps autrefois acquit.  That seems to me to be the first thing you have to do.  If you do not do that, it does not seem to me you get your leg into any door that might bring about any result advantageous to your client.

MR MONOTTI:   That, of course, your Honour, is one of my fundamental contentions, and that is the court was not empowered, having decided to set aside the conviction, to direct a new trial upon any other charge, any charge other than the charge ‑ ‑ ‑

GAUDRON J:   Even be that so, just assume that for the moment, the question, it seems to me, would be whether the prosecution was entitled to present a new indictment for the extradition charge.  As I understand it, they can present any indictment they like, so long as they do not run foul of autrefois acquit or autrefois convict, and possible some double jeopardy rules of the nature discussed in King v The Queen with which, I dare say, counsel are familiar.

MR MONOTTI:   Yes, your Honour.  Your Honour, it is one thing for the prosecuting authority to file a further presentment.  It is quite another thing, in my respectful submission, for the Court of Appeal, having allowed this appeal, to aid the prosecutor by directing the new trial ‑ ‑ ‑

GAUDRON J:   I do not think that it was directing.  It does not direct the exercise of the prosecutor’s discretion.  It is just an order, is it not, to indicate that an acquittal is not being ordered?

CALLINAN J:   The prosecutor would not be in contempt of court if the prosecutor did not proceed with the indictment.

MR MONOTTI:   No, your Honour, I would not contend that.  The court, after all, upon allowing the appeal, was only permitted two courses.  One was to acquit, and the other being to order a new trial.

GAUDRON J:   No, the other was to quash the conviction simpliciter.  Had it simply quashed the conviction simpliciter and made no order directing a new trial then, as I see it, there is absolutely nothing to prevent the prosecutor presenting an indictment on the extradition offence.

MR MONOTTI:   Your Honour, if the prosecutor were then to proceed to present a further indictment, then one of the questions which would arise as to whether the applicant then were, by reason of the history of the matter, in a position to seek a permanent stay of the presentment in the trial court.

GAUDRON J:   Yes, an entirely separate question.

CALLINAN J:   Which he would seek to do in the proceedings on the indictment.

GAUDRON J:   Yes.  Could only be done there.

CALLINAN J:   In which I thought might have been some – there has been a fresh indictment presented, has there not?

MR MONOTTI:   There has, your Honour, yes.

CALLINAN J:   There was some intimation that that would be done, and an adjournment was sought, was it not, and granted, so that there are pending proceedings in which you could take such points as might be available to you, is that not right?

MR MONOTTI:   Yes, your Honour.

CALLINAN J:   There is nothing for us to act upon.  You have exactly the relief in the Court of Appeal that you sought by agreement of the prosecution.

MR MONOTTI:   I wonder if I might take your Honours particularly to the provision of section 568, subsection ‑ ‑ ‑

CALLINAN J:   Before you do that though, the answer to my question is “yes”, is it not?  That is apparent from application book 22 and 23?

MR MONOTTI:   Yes, your Honour.

CALLINAN J:   All right, now you wanted to take me somewhere which gave an answer to that, did it?

MR MONOTTI:   I simply wish to take the Court to the relevant provisions of the Crimes Act.  As to the power of the Court in the circumstances, and this 568(2), which gives the Court in essence only two options; to:

quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.

With respect, your Honour the presiding Justice mentioned earlier that there might be power to quash simpliciter.  That, with respect, your Honours, appears not to be a power which is within the provision.  It is a quashing to commence with, but that founds a ground for the making of one of only two orders available.  My contention in this regard is that the court, having decided to quash, as it did, then proceeded to the question as to which of the two alternatives it ought to direct and the fundamental complaint here in that regard is that the court, instead of, as I submit, was doing as it ought to have done, that is directing judgment and a verdict of acquittal, directed a new trial.  It is at this point, and I submit that there is a question of general importance clearly arising, and that is that the court did not, of course as it could not, direct a new trial of the charge upon which the applicant had been convicted.  The court proceeded to direct as a new trial, trial upon another charge, being the charge upon which he had been surrendered.

CALLINAN J:   Assume the court was wrong to do that.  Assume the court had done the other thing that you say it could have done and had directed an acquittal.  What obstacle would there then have been to the presentation of an indictment for the extradition offence?  What obstacle would lie in the way of that?

MR MONOTTI:   In theory, your Honour, there would not have been an obstacle as such ‑ ‑ ‑

CALLINAN J:   No, you say that there are arguments available to you to present that the prosecutor ought not be allowed to proceed, is that not right?

MR MONOTTI:   Yes, that is so, your Honour.

CALLINAN J:   Well, you can present those arguments in the court where the indictment is presented and if you fail, perhaps on appeal.  It is not for us here.  You might succeed on that.  You might be wasting our time here, you might succeed on those arguments.

MR MONOTTI:   Your Honour, the ‑ ‑ ‑

CALLINAN J:   You want to appeal against what was, in effect, a consent order here.  You consented to the course that was proposed.

MR MONOTTI:   My predecessor did, yes, your Honour.

CALLINAN J:   If you have got rights, if your client has got rights, then those rights can be pursued in the proper way by appropriate pleas.  If you think you have go autrefois acquit plea, or something of that kind, you can do all of that in the current proceedings.

MR MONOTTI:   Your Honour, the significance, however, of the court directing the new trial as it did, is first by so doing, if, as a matter of law, the applicant was entitled then and there to an acquittal, then he would have been able to rely upon that acquittal in plea against any further prosecution in reliance upon rules of double jeopardy.  That was a right, which was a very valuable right, and which I respectfully submit, is a right to which he was entitled upon the allowance of his appeal and the quashing of the conviction.

The question of importance which is necessarily attached to this aspect is that the decision of the Court of Appeal, even if it was a decision which was, as it would appear, consented to on behalf the applicant at the time, was a decision which cannot lawfully be made under the relevant provision of the Act because it is a direction of a trial upon a charge which is not the subject of an indictment.

GAUDRON J:   The words in the section do not limit the court’s power as to the offence upon which a new trial might be ordered.  I am aware of cases, for example, where a court of criminal appeal has held that the evidence was not sufficient to justify a conviction on one count, but would on a lesser count.  There are provisions in New South Wales which enable them to substitute a conviction on a lesser count.  Putting aside those, why could not a court of criminal appeal, on appeal say, “Set aside the conviction for murder, order a retrial on the charge of manslaughter”?

MR MONOTTI:   That would be an entirely different situation, your Honour, in that manslaughter is embraced within the indictment for murder.  That cannot be said here.

CALLINAN J:   The real problem here is though that the arguments which you want to present here can be presented and fully dealt with in the court in which the indictment is presented, or has been presented already.  The order against which you want to appeal was effectively a consent order.  Those are your problems here.

MR MONOTTI:   With respect, your Honour, I have to submit neither of them are problems in that, as to the first point that your Honour has put to me, the applicant was entitled to an acquittal and therefore to be able to rely upon that very valuable ‑ ‑ ‑

GAUDRON J:   Why was he entitled to an acquittal?  First of all - I mean that premise has got to be challenged.  The premise is just, so far as I can see, plainly wrong.

MR MONOTTI:   Your Honour, if my contention is right as to there being no power in those circumstances to order a new trial, that is a trial on a charge other than a charge the subject of the presentment upon which the conviction was recorded, then the only alternative under the Act is to direct an acquittal.

GAUDRON J:   So - and again, so why it?

MR MONOTTI:   In my submission, there being no power to order the new trial, therefore my client was entitled to the acquittal and to the full benefit of that, should he wish to or need to use it, upon any later proceeding.

GAUDRON J:   Now, what benefit do you say it involves?  First of all I mean, I think your assumption is wrong.  What benefit do you think it might involve?

MR MONOTTI:   First, my client would be able to call in aid the rule against double jeopardy.  He has been acquitted.

GAUDRON J:   What is that rule?  What is the precise content of that rule, as applicable in this case?

MR MONOTTI:   The new charge upon which he is being presented involves the same elements as those upon which he had been previously charged.  I notice that my time seems to have run out, if the Court pleases.  I relation to the question of the court’s power in this regard under this subsection, I do refer to paragraph 3 of my written reply in my answer to the authorities which my learned friend’s have relied upon in that regard, if the Court pleases.

GAUDRON J:   Thank you, Mr Monotti.  We need not trouble you, Mr Holdenson.

The course adopted by the Court of Appeal in this matter does not involve any miscarriage of justice.  Accordingly, although time is extended for the bringing of the application, the application for special leave is refused.

AT 1.06 PM THE MATTER WAS CONCLUDED