Hoser v The Queen

[2001] HCATrans 28

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M50 of 2000

B e t w e e n -

RAYMOND HOSER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 FEBRUARY 2001, AT 3.39 PM

Copyright in the High Court of Australia

MR R. HOSER appeared in person.

MR J.D. McARDLE, QC:   If the Court pleases, I appear for the respondent.  (instructed by Mr P. Wood, Solicitor for Public Prosecutions (Victoria))

GUMMOW J:   Mr Hoser, you are appearing for yourself.

MR HOSER:   Yes, your Honours.

GUMMOW J:   Now, you need an extension of time as well, do you not?

MR HOSER:   That is correct.  The reasons for the extension of time are covered in the affidavit which is part of the appeal book.  I assume you have read that affidavit.

GUMMOW J:   Yes, we have.  You understand you have up to 20 minutes.

MR HOSER:   Yes, thank you, your Honour; your staff have been very helpful actually, I must commend them.  They have, within their jurisdiction, advised me of all the necessary ‑ ‑ ‑

GUMMOW J:   Well they do their job as well as they can.

MR HOSER:   Yes.  Bear in mind I am not representative, I go off the deep end, appear disrespectful, say the wrong thing or something out of place, please bear with me; it is not intended to be disrespectful in any way.

I assume that in terms of the extension of time and in terms of all my arguments, you have read all the various arguments that I have put in the appeal book, so I will not do the full 20 minutes because they are all covered in the appeal book basically or referred to in documents that might not necessarily be in the appeal book, but referred to by way of citation in that book.  I will not repeat all my arguments and points now, save for a few, which might not necessarily be the most important ones I might add.

GUMMOW J:   Now, what is the date of the decision in the Court of Appeal?

MR HOSER:   That was 1997.

GUMMOW J:   Three years ago, is it not?

MR HOSER:   Yes, that was 1997.  The appeal was lodged with the High Court within the appropriate time.  I was incarcerated in prison.  If you have got the statutory declaration you will see ‑ ‑ ‑

GUMMOW J:   Yes, we see that.

MR HOSER:   And basically, as best as I could, I crossed my i’s and dotted all my t’s, the problem was is I was dealing with a lawyer who had been referred to me and being incarcerated did not help.  The lawyer was a man by the name of David Perkins, who I have since found out has actually appeared here a number of times, and I do not know the exact ‑ ‑ ‑

GUMMOW J:   We see what you say about that.  You say he went in and out of the matter at various stages.

MR HOSER:   No.  Well, I had trouble contacting him and what happened was he said he had it all under control.  His office was just down the street there in Queen Street and when I went to the office it had all been closed up and the people in the adjoining office said that he had been thrown out, they had locked the doors, locked all his books and things in there, changed the locks and he had owed them back rent or something, and I could not contact him by any way by hook or by crook.  When I contacted this Court I was told that he had, in fact, commenced seeking leave for appeal within the appropriate time, but it had been what they call deemed abandoned because the letters had been sent to him and unanswered.

Now, the instructing solicitor - I understand now my definitions here might be a bit out, but I understand Perkins was a barrister - was a man by the name of Alex Tees in Sydney and he had a big Family Court matter, and I assume that is federal so you can probably whip it up on the computer, and he also left his office and my understanding is that when the High Court sent correspondence to Mr Tees asking him to file appeal books or whatever the case may have been, the letters were not answered by whoever was at the office.  So, to cut a long story short, through no fault of my own, it was out of time and deemed abandoned.  Now, one of the salient points though, which I should impress upon you, is at all stages of the equation, from the day I was convicted or re-convicted in he appeal court, I have sought the appeal to this Court and within my limited abilities I have done everything possible to further that.

Now, after I was advised of the deemed abandonment, bearing in mind a lot of other constraints like, after being incarcerated for four months you do tend to lose most of what you own as in finances go a bit haywire because your bills still mount up while you are not earning any money, but I did reapply to seek leave, which is what I am doing now I presume, and went through all the various motions and your own staff will tell you that as fast as they sent me letters or faxes or whatever, I would answer them, I would do everything in a correct format as best I could, I would check it with them, and they will tell you that if they said “jump”, I would ask “how high?”.  So, on the basis of the delay factor in terms of being statutory out of time, bearing in mind that I have, in fact, done everything within my ability to prosecute the appeal, I would ask that you give me that extension of time.

Another point raised by the previous barrister - I am not a legal practitioner, so I have just overheard things that have been said - he did mention one of the tests as to whether leave should be granted, was whether it would adversely affect the other side in terms of disadvantaging them.

GUMMOW J:   Well this is the Crown here, so it is rather a different matter.

MR HOSER:   Yes.

GUMMOW J:   One of the matters that is central to it all is what prospects an appeal to this Court would have.

MR HOSER:   That is correct.

GUMMOW J:   Now your grounds are set out at 56, I think, and 57 and 58 of the application book and what Mr McArdle says against it is that all of it, except 27, 28 and 29, is new, here.  In other words, it was not put to the Victorian Court.  Now, is that right?  It seems to be.

MR HOSER:   You will find that grounds 2 - I am looking at page 56 - right through - most of those grounds - I assume there are 31 - most of those 31 were, in fact, put to the appeal court.  Now, my instructions to the barrister at the time was to prosecute every single one of those, because – I hate to use a colloquialism but the things that were wrong in the original trial stuck out like dog’s testicles, and I asked him to prosecute every one of them.  The problem was that the barrister, Mr Chris Dane, QC, was also defending a man by the name of Brooks, in a murder trial in an adjoining courtroom, and that trial went some weeks and my understanding was, considerably longer than Mr Dane had, in fact, anticipated.

GUMMOW J:   We are looking at page 37 of your application book, which explains what President Winneke saw as happening in the Court of Criminal Appeal.

MR HOSER:   That is correct, but, taking a step back from that, you asked why the various grounds, some of them were not prosecuted.

GUMMOW J:   Well it does not matter why.  The fact is the court was dealing with counsel, as it must, and that is what was on the face of it and that is what binds people.

MR HOSER:   Fine.  Now in terms of section 28 and 29, I believe that, based on what I have written and what I will tell you in a minute, there are things that would give us a very good prospect of success.  In particular, his maintenance of the judicial control of the admission of evidence and in identifying evidence and also, like in the charge itself, he made a number of statements that were demonstrably false, which may well have influenced the jury in making its decision, which - had the trial judge, Mr Neesham, made truthful statements, the result could well have been totally opposite.

You see, your Honours, bearing in mind that I have been unrepresented throughout, with the exception of the appeal hearing, where I may as well have been unrepresented because Mr Dane actually tried to get an adjournment that morning and was refused by Mr Gaffney.  Now, had Mr Dane got the adjournment and had Mr Dane read the full transcript of the hearing and been able to find all the various reasons and actually know what I wanted him to do, it may well never have got further than the appeal court and it would all be over and I would be a happy man and not have done four months of gaol.

If I could just address some of those other issues – does that make sense to you what I have said to your Honour.

GUMMOW J:   Yes, please go ahead, but bear in mind the time.

MR HOSER:   Yes.  Now, in terms of the matters in terms of prospects of success – I am just reading from some notes here – the case is well known as a miscarriage of justice and I will go to the most important reason.  I was charged with perjury.  Now, unlike a lot of law that can rely on loop holes and grey areas, perjury basically is a charge of whether I told the truth or whether I lied in court.  Now the most important evidence was, in fact, a tape recording I had made of the proceedings in which I was alleged to have committed perjury and at all materially relevant times - I was raided the following day after those proceedings – the police seized the tape, they denied it for some nine months, it came out by accident at the committal hearing that they possessed it and from then on they refused to relinquish the tape or produce it in court in spite of repeated requests for them to do so.

Now, if I had supposedly told a lie - in theory it would have been quite simple for them to have played the tape - and my evidence only ran, I think, about six or seven minutes, because there was an adjournment, but it is a ball-park figure – identified the sentence I had said, which was incorrect, and then that would have been it; we could have argued over the exact words.  Now, to this very day, they have never cited a given word that I have said that was false.  Now, the police have admitted in the transcripts of the hearing that they possess the tape and that they have made copies of the tape.  Now, presumably we could get to - one of the things of the court: we could argue points of law all day, but, at the end of the day the central issue is, is whether or not a perjury was committed and if there is indelible evidence that shows there was not a perjury, it strikes me as odd that a court like the High Court cannot overturn such a blatant miscarriage of justice.  Now, I am not a lawyer so I cannot whip up the case laws to identify self‑serving evidence that would lead you to re-assess the evidence, like a barrister said earlier, but that just strikes me as odd that your Court would not be interested in such a thing.

One of the issues addressed in the various grounds of appeal, including up to the original 29, I assume you are trying to treat the original ones, numbers 1 to 26 as abandoned and you do not want to re-entertain them, is that correct?

GUMMOW J:   I think you better concentrate on 27, 28 and 29.

MR HOSER:   But, of the original 26 grounds, 1 to 26, are you telling me that you are not interested in them at all?

GUMMOW J:   I am not telling you anything at the moment, but you have got limited time.  What the Court of Appeal dealt with was 27, 28 and 29.
Now, prima facie, we do not deal with matters that were not dealt with by them.

MR HOSER:   Right, well they were dealt with them, and I draw your attention, if you look on page 37 of the appeal book, Mr Winneke said:

At the outset of this hearing Mr Dane advised the Court that he would be pursuing only these last three grounds and would not be pursuing the grounds identified as 1 to 26 inclusive.

So they were, in fact, entertained by the appeal court.  The appeal court also read a letter from Mr Neesham, the judge in a previous case, which also entertained grounds 1 to 26 and they were live issues throughout.  Now, going on Mr Winneke says:

He informed us that his instructions would not permit him to abandon those grounds, but only that he did not propose to advance any arguments in support of them.  As I indicated to Mr Dane at the time, such a course will be treated by this Court as necessarily implying an abandonment on the grounds not pursued (cf. R v McNamara, Court of Appeal –

et cetera.

GUMMOW J:   That is undoubtedly the law.

MR HOSER:   What I am saying though, your Honour, is that is a precedent, and I do not have a copy of that precedent in front of me, and I understand you are bound by precedent to an extent, however, my understanding is, it would be highly unlikely that the McNamara Case that has been cited would be a situation where the appellant, as in myself, has expressly instructed the barrister to pursue all grounds of appeal and the barrister has then flown, in the face of his client – and it is clear from Mr Winneke’s own statement – and not pursued them.  It was clearly contrary to the instructions of his client.  Now, my one of my many arguments – I will not have time to get through them all, which is why I seek a leave for the appeal – is if counsel has so flagrantly disregarded the instructions of his client in a matter as materially important as this, it should be and can be revisited by your Court, notwithstanding R v McNamara, and as I say, I do not have the case in front of me, but I would bet my house that it was not a case where the client had expressly said, “I refuse to allow you to abandon those grounds”, and that is why I want to revisit all of those 26 grounds and, as I said, some of them are so blatant and so outrageous in terms of what happened, it would be grossly remiss of your Court, or any court, not to look at them, particularly when they have been so succinctly spelt out throughout.  I gather you have been given copies of this book, which has a summary of the case, and also goes through – I do not know if you have had time to read it – some of the things that went on during the course of the trial, which were clearly in contravention of rules, procedures, flew in the face of evidence, or whatever.  So, you understand my argument in relation to revisiting grounds 1 to 26?

GUMMOW J:   Yes, but you have to overcome the ordinary situation that courts deal with what counsel tell them.  That is why counsel is there.

MR HOSER:   I understand that.

GUMMOW J:   If you have got a complaint against counsel, well that goes somewhere else.

MR HOSER:   I understand that, but your Honour, having said that for the purposes of this ‑ ‑ ‑

GUMMOW J:   Counsel is not here either, do not forget.

MR HOSER:   I understand that, but, your Honour, the transcript here on page 37 of the appeal book is quite clear.  The grounds of appeal were there and the client did not want them abandoned.  It is there in black and white.  Unless your transcript is lying, it is there in black and white:  me wanted those grounds of appeal pursued and if you look further in the appeal book, or actually I think it is earlier, you will see the letter from Judge Neesham to the appeal court, that is pages 28 to 30, where he addressed issues raised in points 1 to 26.  They were clearly issues that were being dealt with by the appeal court.  As I said, R v McNamara - and perhaps you should look at that judgment before you rule on this - I am sure ‑ ‑ ‑

GUMMOW J:   It is not a new principle; it happens in many occasions.

MR HOSER:   Okay.  Now, in terms of identifying evidence that was capable of corroborating Crown witnesses, the learned judges erred there as well, and I will explain why.  They argued that a number on one of the top corners referred to a traffic light intersection and because I had used that number on an outgoing letter that implied I knew, when I tendered the letter in court, what that meant.  However, that was not the case, because you have a situation where the outgoing letter and my appearing in court, there was a substantial time gap between it, my guess, some weeks.

Now, bearing in mind that my house is like a mail exchange and the police’s own evidence corroborated that, because they found about 20 filing cabinets full of files, it would not be surprising that a person will just tender a letter in a court not knowing where all the numbers and bits and pieces at the top of the letter are.  So the mere fact I tendered a letter, which had the same number on it referring to an intersection at traffic lights, does not mean for a moment that I actually recall what the number meant or what its relevance was.

The proof in the pudding there was demonstrated when we tendered other letters in the case, with other letters from Vic Roads, some with reference numbers, some without numbers, and the important thing in terms of reference numbers, none of them related to intersections and traffic lights, thereby implying that the reference numbers were for Vic Roads purposes, not for my purposes, therefore in terms of 29, that is just one of many examples of where the judge was wrong in directing the jury as to what corroborated evidence, because clearly it was not.  Taken to its logical conclusion, the fact that I sent a letter to Vic Roads and got a reply that said, “Vic Roads” at the top of the letter, that could also be used as corroboration, and that is clearly preposterous.

Even in the High Court you do not have a transcript of the three judges when they were speaking, but the three judges looked at the letter and assumed it was the typist’s name, which was actually a step further than I got, because when I received the letter it disappeared into a drawer of the filing cabinet ready for my day in court and I never even bothered to look at

it in terms of what the numbers and so on meant, because they were not relevant; the relevant part of the letter was the body of the text and so be it.  So, in terms of 29, there are several areas where we do have a chance, a good chance.

Other issues to address, of course, include the evidence itself as assessed by the judges and the trial judge Winneke made a number of statements that were wrong – I know my time is up, is that right?

GUMMOW J:   Yes.

MR HOSER:   I will just round up the sentence.  Trial judge Winneke actually said that I gave evidence that I had received a fax from Vic Roads, and the fact of the matter is the evidence at all times was that I had received a fax through my fax machine while I was out.  Now, it would be physically impossible for me to – bear in mind that I had received a fax while I was out – give evidence I had received a fax from someone, to be convicted of saying something I had not actually said.  So what you actually have is a situation where the trial judge and the appellant court judges have wrongly misinterpreted the evidence to say I gave evidence, saying I received a fax from Vic Roads, where the evidence was, I had received a fax, not knowing where it had come from, and because I was convicted of falsely swearing that I had received a fax from Vic Roads, because I have never actually said that, it goes to follow that at no stage had the jury been directed that I had given evidence saying that I had received the fax from Vic Roads, because I never had.  As I said again, the tape recording of the original ‑ ‑ ‑

GUMMOW J:   Well, do not say it again, Mr Hoser.  Time is up.

MR HOSER:   That you, your Honour.

GUMMOW J:   The applicant seeks an extension of time for a special leave application regarding a decision of the Victorian Court of Appeal delivered on 24 April 1997.  The applicant, who appears today in person, offers a detailed explanation of the lengthy delay.  Three grounds were argued in the Court of Appeal.  Arguments were not advanced by the applicant’s then counsel in support of the other grounds.  Even if the explanation for the delay be accepted, there nevertheless are insufficient prospects of success in this Court in an appeal against the decision of the Victorian Court of Appeal.  Accordingly, the extension of time is refused.

MR McARDLE:   If the Court pleases.

GUMMOW J:   I should have said we do not need to call on you, Mr McArdle.

MR McARDLE:   I was wondering, however, if your Honours would allow me just to say one thing as an indulgence.

GUMMOW J:   Yes.

MR McARDLE:   It is this:  Mr Dane, of course, is not in Court and has no opportunity to respond to the matters put.  I looked at the records in relation to the case of Brooks.  The verdict adverse to Brooks was delivered on 23 April 1997, which is the same day that this case commenced argument in the Court of Appeal.  Judgment in that was delivered on the following day.

GUMMOW J:   On the following day, yes.

MR McARDLE:   Thank you.

GUMMOW J:   Thank you.

AT 4.03 PM THE MATTER WAS CONCLUDED