Henke v Director of Public Prosecutions [2011] HCATrans 42

[2011] HCATrans 42

[2011] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M11 of 2011

B e t w e e n -

IAN SIDNEY HENKE

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for stay

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 22 FEBRUARY 2011, AT 4.29 PM

Copyright in the High Court of Australia

MR I.S. HENKE appeared in person.

MR W.J. ABRAHAM, QC:   May it please the Court, I appear for the Crown.  (instructed by the Director of Public Prosecutions (Cth))

HER HONOUR:   Thank you.  Now, Mr Henke, I have written material.  You have an application for removal of a matter pending in the Supreme Court of Queensland which was filed on 28 January 2011, an affidavit by yourself filed that day and you also have a summons for an adjournment and other orders of criminal proceedings pending in that court filed 11 February 2011 together with an affidavit by yourself in support, and a further affidavit was filed on 17 February 2011.

MR HENKE:   That is correct, your Honour.

HER HONOUR:   I think that is your material together with the written submissions which you have filed.

MR HENKE:   That was the material I filed, your Honour.

HER HONOUR:   Yes, thank you.  Ms Abraham, I think there are two affidavits in response by David James Henschell filed on 18 February last, and I think the shorter one was filed today.

MS ABRAHAM:   Yes, correct.

HER HONOUR:   Thank you.  Together with your submissions.  I have read the material and the submissions, Mr Henke.  Do you have any further submissions you wish to make in relation to either the removal or the application?

MR HENKE:   Yes, your Honour, I do, not at this stage in relation to the removal, but in relation to the application.

HER HONOUR:   The focus of which really is on the stay or adjournment of the proceedings.

MR HENKE:   That is exactly right, yes.

HER HONOUR:   Could I ask you, the question of legal aid was reviewed externally after Justice Mullins heard the application for stay and after her Honour refused?

MR HENKE:   Yes.

HER HONOUR:   It was confirmed, and you have declined it on the basis that – it was not clear to me, either your wife had declined to make the property available or you did not consider that the condition was appropriate?

MR HENKE:   Your Honour, the situation is this.  My wife is a polio sufferer.

HER HONOUR:   Yes, I read of her condition in your affidavit.

MR HENKE:   And the result is that the house is set up for her to be able to live and work in.

HER HONOUR:   The property is held in her name?

MR HENKE:   Yes, held in her name and was purchased basically with her money and her inheritance while she was working.

HER HONOUR:   Has she declined to make it available, or is it you who consider that the condition is onerous?

MR HENKE:   Well, yes it is onerous, your Honour, because I am some years older than her.  It is highly likely with my own medical condition that I will die sometime before her – and it is just being realistic, I am not being sadistic about it – in which case she is probably going to have to go into a nursing home at some stage.

HER HONOUR:   All I really want to know is it was a joint view that you have come to together?

MR HENKE:   Yes.

HER HONOUR:   It is not that she is denying the availability of the property, but you do not think it is principally your opinion?

MR HENKE:   Well, your Honour, firstly, we have looked at the property as being the security for her to be able to go into a nursing home when she needs to and in Victoria they are charging something like $232,000 deposit to go into a nursing home.  The house is not worth a great deal more than that and so the value of the house has got to be preserved in order that that remains an option for her.  I would love to have had counsel in the matter that is – at the moment, but it was – to me it was not an option that I felt we had.

HER HONOUR:   Well, you certainly seemed to be able to have made some applications on your own behalf however.

MR HENKE:   Your Honour, I have and ‑ ‑ ‑

HER HONOUR:   That is not to underestimate the complexity of the trial that you are facing.

MR HENKE:   In fact, your Honour, that is one of the principal issues that, in fact, I am – this is concerned about.  This is why this application should ‑ ‑ ‑

HER HONOUR:   Before you make the additional submissions that you have foreshadowed, the other matter I wanted to raise with you was that it was mentioned in submissions for the Director of Public Prosecutions for the Commonwealth that there had already been an argument raised on the question of the sufficiency of the indictment before her Honour the trial judge and that she had ruled upon it.

MR HENKE:   Your Honour, there were certain items ‑ ‑ ‑

HER HONOUR:   This goes to the removal question, of course.

MR HENKE:   Yes.  There were certain items in that which her Honour indicated that she thought she should hear.  And let me say right from the outset, I have absolutely no complaint about the way the trial judge is treating me.

HER HONOUR:   No.

MR HENKE:   She is treating me with the greatest concern and the greatest courtesy and I have no issues with that.

HER HONOUR:   Well, her Honour, as I understand it, has also expressed the view, if not made the ruling referred to, that she is in a position to make rulings on questions which raise constitutionally related questions pertaining to the offences in the indictments as they arise.

MR HENKE:   She, in fact, has certainly indicated that and that was the reason why at one of the preliminary hearings I, in fact, submitted some of those questions in writing to her so that she could, in fact, make such rulings as she saw fit at the time.  I felt it was better that if they were made by her beforehand, then at least they were there as – they were dealt with as issues before the trial proceeded.

HER HONOUR:   Now, then, what were the additional submissions you wished to make in relation to the stay or adjournment of the criminal proceedings?

MR HENKE:   Well, your Honour, the additional submissions arise out of the nature of the matter as it is proceeding.  As you say, I have been able to do reasonably limited applications but in a particular way, but I have absolutely no experience of the criminal trial procedure and I have noted two things.  Firstly, Mr MacSporran, who is the senior counsel for the Director of Public Prosecutions, specifically laid down nine elements that was supposed to be the case against me.  Now, they are, I submit, fairly simple elements and they are ones which can be proved or disproved, and I believe they can be disproved. 

We are now in a position where more than a thousand documents have been submitted.  I have sitting at home five boxes this dimension of other documents.  There are something like 30,000 documents.  It is just not physically possible for me to either bring them here, because I am 2,000 kilometres away from home, or where I am, I do not even have access to the internet of a night to be able to peruse them eTrial system.

HER HONOUR:   These, of course, are matters that you can raise with the trial judge during the currency of the proceedings.

MR HENKE:   Yes, your Honour, I realise that.

HER HONOUR:   As you say, her Honour would no doubt make all efforts that could reasonably be made to accommodate you.

MR HENKE:   Your Honour, as I said, I cannot complain about the way the trial judge has accommodated me as best ‑ ‑ ‑

HER HONOUR:   Mr Henke, the real difficulty which faces you in relation to the application for a stay is that the question referred to in Dietrich’s Case of potential unfairness to you has been raised before her Honour the trial judge and she has obviously considered it, had regard to your abilities and made a decision upon it.  That leaves the question of, what is the role of this Court?  It is not to review her Honour’s decision, it is not to sit in an appeal upon it.  The appropriateness of applying separately to this Court and fragmenting the criminal process is a very real one that – it is difficult for you to address really.

MR HENKE:   Your Honour, I did make this application before the trial had commenced and there was, in fact, at that stage some possibility of hearing before the trial commenced.  So I did endeavour to avoid the fragmentation of the process. 

HER HONOUR:   It was understood the parties, yourself included, left over the hearing before this Court until her Honour had ruled upon the matter.

MR HENKE:   Well, I made the application in Melbourne, as your Honour can see.  There was at that stage a possibility that I would be able to be before a Justice of this Court on the Friday or the Monday before the case, in fact, commenced.  That did not eventuate.

HER HONOUR:   In any event, it was entirely appropriate that the trial judge dealt with an application for a stay, indeed, probably the correct course, and her Honour has now ruled on that matter.

MR HENKE:   Your Honour, the issue that has become most urgent in my mind has, in fact, occurred during the process of the trial and that is that the events that are said to involve me occurred before what we might call the scheme, which the trial was about, commenced.  The first point at which that commenced was, in fact, on 1 February.

HER HONOUR:   Is this relevant to your application for stay or the removal?

MR HENKE:   Well, it is, your Honour, because what has happened now is that we have had a huge number of documents filed into which I had no input, I played no part, I was not a signatory to, I did not make any – I did not issue any component of and, what is more, I did not know the people who did so.  A lot of this has occurred in Vanuatu.  I  have never been to Vanuatu in any stage of my life and I do not know any of the people concerned. 

The fact about it is is that I am now finding – and this is the reason for my additional information to your Honour this afternoon – I am now finding that I can see, in the pattern of the documentation that the DPP is presenting, there is a pattern of people doing things in groups, each of them signing multiple documents with the same signatures appearing time and again and I feel that at the moment the way the trial is proceeding, I am being tried by imputation of what the other people are doing and how in a place and a time in which I had absolutely no capacity to influence or be part of.  Now, my problem, and this is what I bring into this Court ‑ ‑ ‑

HER HONOUR:   I think I understand the point that you are making, but it is still not entirely clear to me why that cannot be dealt with by the trial judge.

MR HENKE:   Well, my problem ‑ ‑ ‑

HER HONOUR:   It is a question of whether or not you at some point consider there is a sufficient case made out against you.

MR HENKE:   Well, the problem that I see, your Honour, and this is what I place before you, is that I do not know how, I literally do not know how, to deal with, in a meaningful way before the other court, all of the evidence that I consider is irrelevant to me.  I do not know how to put, I do not know where to put it, I do not know who to put it to and I do not know the mechanics to do it with, and that to me is the essence of the problem that I now have.  The things that I do know about, I can deal with.  I can produce evidence about the things that I do know about, but I cannot produce evidence and material about things I know nothing about.  I am now in a position of where I face another two or three weeks of a trial in which I will literally be a passenger for most of it.  I am listening to it, I am watching what is being done, but most of it does not concern what I was said to be involved with or how.

HER HONOUR:   That is often the nature of conspiracy trials.  You just have to keep your ears pealed.  I am sure the trial judge would be conscious of the fact of you being alerted to evidence which is being put forward against you when the conspiracy is said to touch you.

MR HENKE:   Well, in fact, your Honour, yesterday afternoon I raised some of this issue with the trial judge of where there were references being made to my company of 10 years ago as being a company that was involved in taxation schemes and Mr MacSporran, in fact, conceded yesterday afternoon that, in fact, it was not and that this is the only scheme type matter that I am considered to have been involved with.  Now, I still argue that I was not, but that is a concession that Mr MacSporran made yesterday afternoon.

So we have shifted slightly from the original position of where it is put, but my greatest problem, of course, is the fact that the matters are 10 and 12 years old.  Many of the people who were involved are now dead and the ones from whom I can obtain evidence that is necessary to help me, some of them are quite sick and I may be able to use them or not, but there is, in fact, evidence that they have which would demonstrate that a number of the things ‑ ‑ ‑

HER HONOUR:   Those, of course, are matters which sometimes arise in criminal proceedings.  They are not limited to people who are not legally represented. 

MR HENKE:   Yes.

HER HONOUR:   I realise your point that it makes it more onerous for you.

MR HENKE:   Yes, particularly since the matter was not – there were no charges done for eight years and then there was nothing else then done for another year on top of that.  So it was nine years just before there was any possibility of raising any of the issues.  So it is a particularly onerous set of circumstances that has been imposed and I have reached the point of where I have come here as a pensioner, I am sort of living with friends because that is the only way I can do it, and travelling to and from the outer suburbs on a daily basis.  I am not complaining.  That is just the way things are. 

I feel that I needed to have representation that would deal with the issues in such a way as to separate the issues that are concerning the other defendants and myself, particularly since a lot of the evidence that has been submitted is against people who are not before the court and will not be before the court ever.  It is a very peculiar mix, that one of the other people named died in January 2006, two of the others are residents of Vanuatu and will not come near Australia and there are a number of other people who regularly appear in what we might call the cast are people who are not here, will never be questioned and will never be here.  Now, that makes any hearing for me a very, very difficult proposition, not on the basis of what I have done, but on the basis of what I cannot query. 

So that is really the essence of why I am here, your Honour.  It is delayed.  It was not intended to be delayed to this point.  I do acknowledge the fact that there is now an element of the fracturing of the criminal process involved in this.  It was not my intention in the first place for that to happen.  I was, in fact, looking at that stage to perhaps separate myself off into a situation where I might, in fact, be able to deal with the bits that I needed to deal with separately and directly and be able to dispose of them fairly quickly, but as things have progressed, I have now got another two or three weeks, at least, in Brisbane without facilities and attempting to deal with the matter.  Thank you, your Honour.

HER HONOUR:   Thank you.  Ms Abraham, can I ask you about the reference in the submissions to the trial judge having ruled upon a matter relating to the indictment.  Is it the question about the sufficiency of the offence?

MS ABRAHAM:   There was argument about the sufficiency of the indictment at the pages we have.  At the end of the – in terms of chronology, the jury were empanelled last Tuesday, if memory serves.  It was then adjourned off and there was further applications in relation to legal aid.  There was an occasion on 16 February, which is in tab 20 of the affidavit, DH‑20 of the affidavit, where it was put before her Honour, in

case you have not formally ruled, can you rule on these matters and she, in fact, says that she had ruled and then formally dismissed a number of applications.  That is at pages 12 and 13. 

At the bottom of page 12, for example, Mr Henke conceded the issue about the Crimes Act.  Does your Honour see that?  So at the top of page 12 there is reference to dismissing applications filed on the 31st and over the page on the 1st.  There is a list of those, by the way, in the next annexure to Mr Henke’s affidavit.  Your Honour can see item number 12, for example, on that list in exhibit DH‑21 is the offence provisions, for example.

HER HONOUR:   I was not sure whether that was to the question of whether or not the offence was extant at the time of the offending conduct, which was a point, I think, taken in earlier proceedings before Justice Crennan.

MS ABRAHAM:   Taken here as well.  They seem to be interwoven.  As your Honour will have seen, the indictment, in fact, has 29D on it. 

HER HONOUR:   Yes.

MS ABRAHAM:   So there was discussion.  There is no doubt that it was apparent from the discussion that it is 29D that has been charged because that is what the argument became about.

HER HONOUR:   Yes.  Unless there is anything further you wish to add, I do not need to hear anything further from you.

MS ABRAHAM:   No, your Honour.

HER HONOUR:   Thank you, Ms Abraham.

The applicant is currently standing trial in the Supreme Court of Queensland on a charge of conspiracy, with two others, to commit an offence against a law of the Commonwealth (s 86(1) Crimes Act 1914 (Cth)). The conspiracy is alleged to have involved a scheme by the use of dishonest means, by overt acts, to strip companies of their assets so that they were unable to meet their obligations to the Australian Taxation Office, with consequent effects upon the revenue of the Commonwealth. Particulars of overt acts have been provided.

The matters presently before this Court are an application for removal of the matter pending in the Supreme Court, filed 28 January 2011, and a summons for orders seeking an adjournment or stay of the proceedings in that court or an injunction prohibiting the respondent from further action, filed 11 February 2011.

The indictment alleging the conspiracy offence was presented on 2 November 2009.  A provisional allocation of a hearing date in January 2011 was made in March 2010 and the dates officially confirmed by August 2010.          The applicant was represented until a time close to the trial, although he was aware of some difficulties in relation to his representation prior to that time.  He has represented himself in the criminal proceedings since 20 January 2011 and he has filed several pre‑trial applications for rulings and directions in the Supreme Court which have been dealt with by the trial judge, Justice Mullins.  One of those was his application for a stay of the proceedings, inter alia, on the ground that he is without legal representation.  Justice Mullins refused that application on 14 February 2011.  The trial commenced with the empanelment of the jury on 15 February 2011 and is continuing.

The argument which is said to relate to the Constitution and to qualify the proceedings for removal under section 40(1) of the Judiciary Act 1903, is that the indictment fails to specify an offence against Commonwealth law. On a previous application to this Court the applicant challenged whether section 86(1) was in force at the time of the offending conduct. Justice Crennan held that it was. The applicant made a similar submission, unsuccessfully, to the trial judge in the criminal proceedings now on foot.

The applicant now contends that section 86(1) does not disclose an offence and that an offence of asset stripping cannot be created by Commonwealth law.  Even if the argument had merit, it would not justify an order for removal.  More relevant to the application is the point made by the applicant himself that the Supreme Court has an obligation to ensure that an indictment discloses an offence.  Far from supporting the applicant’s application, the point reinforces the role of the Supreme Court in the conduct of those proceedings.  That role extends to questions such as that raised here.  I am informed that some questions concerning the indictment have been raised and ruled upon by the trial judge.  Moreover, as Justice Crennan noted in earlier proceedings, M14 of 2009, brought by the applicant, this Court has repeatedly said that criminal proceedings should not be fragmented.  No public interest can be served in doing so in this case.

The remaining matters of complaint raised by the applicant in his materials – as to the sufficiency of evidence and the conduct of the prosecution – do not provide any basis for an order of removal.  The summons for removal is refused.

The basis for a stay or adjournment is the same as that agitated before Justice Mullins, namely, that the applicant is indigent and has no legal representation.  In some cases, such circumstances may result in a trial which is unfair to an accused, as was recognised in Dietrich v The Queen (1992) 177 CLR 292. Since this summons was filed, Justice Mullins has considered the circumstances pertaining to the applicant and has refused an order for a stay. The Legal Aid Office had then made an offer of legal aid, but upon conditions relating to the property of the applicant’s wife which were not acceptable to him and his wife. The offer of legal aid on those terms has since been confirmed.

Justice Mullins considered the timing of the applicant’s loss of representation and his evident ability to act for himself.  Whilst not ideal, her Honour clearly enough considered that the applicant was sufficiently able to represent himself.  That decision having been reached by the trial judge, who is better placed to understand the complexity of the litigation, and an order refusing a stay made, an application to this Court for the same relief is not appropriate.

The additional matter raised today by the applicant – as to his alleged conduct pre‑dating the scheme the subject of the conspiracy, is also a matter which may be raised with the trial judge should the applicant consider that there is no true case for him to answer.  Any further matters concerning his difficulties with meeting and  presenting evidence are also matters which can be and to date have been raised with the trial judge. 

There is no basis for orders prohibiting the respondent from further action. Reliance upon this Court making a ruling that section 117 of the Constitution has been infringed, because the applicant is a resident of Victoria and the trial is to be conducted in Brisbane, is misplaced. As Justice Crennan has noted, questions as to change of venue can also be dealt with as part of the criminal process. The application is dismissed.

Did you seek further orders, I think?  Are you pressing orders for costs?

MS ABRAHAM:   Not in the circumstances, no.

HER HONOUR:   Thank you.  There are no further orders sought, the Court will now adjourn.

AT 4.58 PM THE MATTER WAS CONCLUDED