Lo Presti v The Queen

[1994] HCATrans 263

~ ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M65 of 1991

B e t w e e n -

JOSEPH FRANCIS LO PRESTI

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 24 MARCH 1994, AT 2.01 PM

Copyright in the High Court of Australia

Lo Presti 1 24/3/94

MR D. GRACE:  If the Court pleases, I appear on behalf of the applicant. (instructed by Grace Partners)

MR B.D. BONGIORNO. OC: If the Court pleases, I appear with

my learned friend, MS K.E. JUDD, for the Crown.

(instructed by J.M. Buckley, Director of Public

Prosecutions (Victoria))

MASON CJ: Yes, Mr Grace.

MR GRACE:  The first question in this application,

Your Honours, is the issue of bias and the issue is

squarely this: did the circumstances of

Mr Justice Teague's involvement directly or

indirectly with the applicant when His Honour was

president of the Law Institute of Victoria satisfy the test laid down in Grassby so as to require his disqualification from the Court of Criminal Appeal.

This is not a case where the rule of necessity is applicable. It was a simple task for a differently

constituted Court of Criminal Appeal to be

appointed.

TOOHEY J: When you put it that way, Mr Grace, it suggests

that there is no great question of principle

involved, but rather the application of established

principle to the facts of this case.

MR GRACE: There is a question of principle, Your Honour,

and that is this: what are the parameters of the

test that ought to be applied in this particular

case? Secondly, what standard of objective facts

have to be reached before the test is satisfied,

given the factual circumstances of this particular

case?

TOOHEY J: What do you mean by "parameters of the test"?

MR GRACE: Perhaps the two issues are intertwined.

The parameters deal with not putting the standard

of the reasonable bystander or the reasonable

accused at a level where it is almost impossible to

reach so as to apply the Grassby test. In this

case, the court obviously had facts in front of it

which suggested an apprehension on the part of the

applicant that he would not get a fair hearing.

The applicant asserted and submitted that he would

not get a fair hearing because the reasonable

bystander would have a reasonable apprehension of

bias.

MASON CJ: But we are dealing with a reasonable bystander

who is not unintelligent.

MR GRACE: That is squarely the issue, with respect,

Your Honour. The question is whether a reasonable

Lo Presti 2 24/3/94

bystander, not with the capacity of a lawyer, but

as a member of the public, what he would

attribute - - -

MASON CJ: A reasonable bystander, what he or she would

understand once the circumstances were fully

explained.

MR GRACE:  But one must be very slow to assume, in my

respectful submission, at least when considering

the public knowledge of the judicial system, that

the public necessarily are aware of the capacity of

judges to put previously formed views, opinions or

findings to one side in their ability to reach an

impartial view.

MASON CJ: All that occurred in this case was that

Mr Justice Teague signed a document, and that

document had the effect of appointing three people

to an inquiry.

MR GRACE:  There was a preliminary matter that occurred

before the signing of the document, and that pre·liminary matter was a finding of guilt of professional misconduct by the Secretary of the Law

after considering a complaint against a

Institute, and pursuant to section 28(4) of the opinion

Legal Profession Practice Act 1958 of Victoria, the

solicitor of professional misconduct, is of .the

opinion that the solicitor is guilty of misconduct,

he may:

refer the matter to a summary hearing o.f the

tribunal.

So the preliminary aspect is this: the secretary

has to make a finding of guilt of misconduct. What

happens then is that pursuant to section 27(6) of

the same Act -

the secretary shall notify the president -

of the finding of guilt, and the president then appoints members to a tribunal, and that is the

document that His Honour Mr Justice Teague signed.

TOOHEY J: You use the expression "finding", Mr Grace, but

the Act speaks of the secretary being "of opinion"

which I would have thought was somewhat less than

making a finding; and is it suggested that the

matter being referred to the president, the

president then exercises some role by way of

forming an opinion, reaching a view, making a

finding before he assigns persons to constitute the

tribunal?

Lo Presti	24/3/94
MR GRACE:	It is not suggested that is the case unless there

has been a discussion of the issue before the Law

Institute Council, where if Your Honour reads the

preamble words:

the president shall subject to and in

accordance with any resolution of the
council ..... assign three persons.

In this case, I cannot point to any resolution of the council. Simply, there was no evidence before the Court of Criminal Appeal that this matter had

been discussed before the Law Institute Council,

and indeed, the president is, in effect, the

chairman of that council.	So other than that, the
answer is no, Your Honour.	However, when a member

of the public is considering the distinction
between an opinion or a finding, it is submitted

that a member of the public would not readily draw

that particular distinction.

But there is a second crucial aspect to the

president's role in this matter, His Honour

Justice Teague's role, and that is this:

His Honour Mr Justice Teague was president of the

Law Institute at all material times .during 1986 when the applicant's legal practice was being

investigated after complaints from clients. The

complaints from clients had to do with dishonesty

matters, and as a result of those complaints the

Law Institute conducted an investigation. They

seized all the applicant's files from his

solicitor's practice. They brought them into the

offices of the Law Institute and conducted a

thorough investigation of them. His Honour

Mr Justice Teague was president of the Law

Institute at that time.

As a result of the findings of those officers

of the Law Institute, those files were referred to

the Victorian Police fraud squad, and as a result

of that and subsequent investigations by that

squad, the charges that the applicant was later

convicted of and which were the subject of

applications for leave to appeal against conviction

were brought. That occurred in 1989.

So His Honour was president of the Law

Institute at that relevant time, and that is the

second basis of the application for

disqualification.

TOOHEY J:  I am not clear whether you are saying that the

charges that were brought as the result of this

investigation were the identical charges that have

given rise to this application, or are you

referring to some other charges?

Lo Presti 4 24/3/94

MR GRACE:  Identical complaints that were the -

DAWSON J: That is a different thing, identical complaints.

MR GRACE: Perhaps I should rephrase it. Complaints were

made to the Law Institute by previous clients of the applicant. As a result of a number of those

complaints charges were laid which were later the

subject of committal, trial and application for

leave to appeal against conviction to the Court of

Criminal Appeal.

DAWSON J:  It may be that you can infer that

Mr Justice Teague knew of those complaints, but why

does that suggest that he formed any particular

view?

MR GRACE:  One is not suggesting that His Honour was not capable of putting to one side -

DAWSON J:  No, that is not the question. Why does knowledge

of complaints mean that a person has formed any

particular view?

MR GRACE:  That is putting the test too high, with respect,

Your Honour. The test is whether a member of the

public or the applicant might entertain a

reasonable apprehension of bias. The test is put

no higher than "might". It is not a positive or an

absolute that has to occur, and when one is dealing

particularly with the standard - - -

DAWSON J: But one can ask the question: why would it be

reasonable to apprehend bias in that situation?

MR GRACE:  In my submission, when the court is considering

grounds of appeal against conviction which deal

with credit issues, which a number of the grounds

in this application before the Court of Criminal

Appeal did, then the issue of credit being such a

crucial matter, then this issue becomes elevated in

terms of the satisfaction of the test.

DAWSON J:  No doubt the proceedings in the Law Institute

were public, were they not?

MR GRACE:	I do not believe so, Your Honour.
DAWSON J:	The result was public, was it not?
MR GRACE:	No, because the matter was not ultimately

litigated before the tribunal because by then the

applicant had joined the Victorian Bar and the Law

Institute was then without jurisdiction.

DAWSON J: But the results of proceedings before the Law

Institute tribunal are public, are they not?

Lo Presti	24/3/94
MR GRACE:	Yes, they are public.
DAWSON J:	How do you know that all the judges did not know

the results or of the complaints?

MR GRACE:  Those complaints did not result in tribunal

hearings.

TOOHEY J:  No, but every day, Mr Grace, judges read

newspapers and read that somebody has been

investigated or their affairs are being inquired

into, maybe in considerable detail. It is hardly

thought that judges should disqualify themselves

for that reason.

MR GRACE:  In this case, His Honour Mr Justice Crockett

adverted to the potentiality of the problem at an

early stage. I refer the Court to page 58 of the

application book. This was the time of the first

application before that particular notice signed by

His Honour came to the attention of the court, and

that is when the objection was first made. But it

is more to the point at page 65 where His Honour

Mr Justice Crockett at line 18 says this after

considering the new discovery of the document that

was.signed by His Honour:

It is not only that there should be an

avoidance of prejudice; there should be an

avoidance of the appearance of possible

prejudice.

His Honour loosely applied the Grassby test at that

time. But the conclusion that was reached at

page 69, it is submitted, did not properly apply

that test, and certainly there were no reasons

given of an extensive nature - and one looks

through pages 69 to 72 of the application book -
the court merely came to a conclusion after

reviewing the authorities at line 25 on page 72 by

saying this:  Having had regard to the matters to which

our attention has been drawn by way of

evidence and the principles to be found in the

reported cases to which we have been referred,

including cases in which it is said that the

facts have some similarity to those with which

we are concerned with the present application,
the Court is clearly of the opinion that the
test for disqualification of this Court from

hearing the matter has not been met.

One does not know what aspect of the test was not

met. The court did not explain.

Lo Presti 6 24/3/94

MASON CJ:  You can hardly blame the court for that because

the court was compelled to look at the cases for

itself without any guidance as I understand it.

MR GRACE:  No, it did have guidance in the final wash up by

the appointment of counsel at page 68 to argue this

particular point, and counsel did argue the point.

MASON CJ: But in any event the decision was given extempore

and shortly as they always are in applications of

this kind. You do not expect a long excursus by

the judge or the court.

MR GRACE: Certainly. It is submitted, with respect, that

at least there should have been some explanation as

to what aspect of the test had not been satisfied,

and this Court is left therefore in some doubt as

to what it was that was not satisfied in this

particular case. There is certainly no analysis of

whether it was because a reasonable member of the

public would not have had the necessary

apprehension or whether it was the applicant. I

cannot put it any higher than how I put it in the

written summary of argument and in the submissions

I have made. But it is submitted that the due

administration of justice would be brought into

disrepute if the contrary view was held that a
higher level than the word "might" be introduced

into the prevailing standard when applying the

Grassby test at least to members of the public.

I was wondering, Your Honours, if I could now move on to the second issue, and that concerns the

question of the jury questioning. In this case, it

is submitted that procedural irregularity which was

found by the Court of Criminal Appeal prejudiced

the applicant by reason of the matters set out on

page 8 on the summary of argument which I will not

read to Your Honours. The particular pages of the

application book that are relevant are pages 84 to

93. At those pages the Court of Criminal Appeal

sets out the part of the transcript whereby the

jury were allowed to ask questions unfettered by the trial judge, and on some occasions questions

were asked via the trial judge.

TOOHEY J:	I think you have this difficulty in this respect, that if there were a rule of law that precluded
absolutely the asking of questions by jurors, then that would be on much stronger ground, but the cases seem to go no further than advice, guidelines, admonitions, so that in the end you
really have to erect into a special leave point for
consideration by the Court of Criminal Appeal that
having regard to what was an undue intervention by
the jury, nevertheless, there had been no
Lo Presti	24/3/94

miscarriage of justice. Are you really asking this

Court to review that assessment?

MR GRACE:  The situation, at least in New South Wales, is

such that the practice of the jury asking questions

has all but been abandoned, and the matter is

highlighted by a number of recent decisions of that

court. If I could refer Your Honours to a decision

of Sams, (1990) 46 A Crim R 468.

TOOHEY J:	But in the end you put your application and your grounds of appeal in terms of miscarriage of
justice or prejudice, not on the basis that the
mere asking of the questions of itself constituted
a miscarriage of justice.
MR GRACE:	I cannot put it that high.
TOOHEY J:	No, I appreciate that, and that is why it is

difficult to erect it into a special leave point.

MR GRACE: 

It is submitted that this whole area of jury

questioning of witnesses is a matter that is worthy
of -consideration of this Court, and that this case
presents the appropriate vehicle for that sort of
consideration. One has the situation in New South

Wales where the practice has been admonished and

the judges of the Court of Criminal Appeal
repeatedly over the past decade in New South Wales

have formed the view that the practice should not
be continued. In Victoria we have the situation

where there has been strong judicial comment
against the practice, particularly in the case of

Cvijic, an unreported decision of the Court of

Criminal Appeal delivered on 21 February 1986, and

there has been a review of that authority and a

number of earlier authorities in the Court of

Criminal Appeal judgment in this particular case.

But the guidelines that the Court of Criminal

Appeal came up with in this case, it is submitted,

are not appropriate guidelines, and the view and

the approach of the Court of Criminal Appeal in New

South Wales, it is submitted with respect, to be

the appropriate approach.

Perhaps the gravamen of the complaint in this

particular case and why it is said that by reason

of the jury questions there has been a miscarriage

of justice, is summed up by His Honour

Mr Justice Kaye in Cvijic's case at page 16, and I

am reading from the second substantive paragraph on

page 16. There His Honour says this:

For my part, I have grave doubts about

the wisdom of the trial judge inviting and
permitting a juror to question a witness in a

criminal trial. There is a serious risk of a

Lo Presti 24/3/94

juror asking a question which is objectionable

and that counsel, in the interests of his

client, might be constrained not to object to

the question for fear lest the juror might

feel aggrieved by the question being

disallowed. Difficulties arise in controlling

proceedings if the course which was permitted

in this trial were to be followed.

Then over the page on page 17 in the third line,
His Honour goes on to say:

Above all, the procedure of a juror asking questions directly of a witness, particularly of either the accused or the prosecutrix, leads to the juror assuming an inquisitorial

role. That is not the function of a court or

of a juror. The function of a court is to

determine, and have the jury determine, the

charges laid against an accused person upon

the evidence which the Crown chooses to adduce

in support of the charges and which the

accused chooses to adduce in his defence.	The
procedure of permitting a jury to

cross-examine in the way in which occurred in

this trial might very well have influenced

improperly the juror or jurors in their

deliberations.

And so it is said in this trial the applicant was

prejudiced and he was not able to effectively

counter the jury questions by objections, even

though there was some objection at some stage,

because of the fact that the jury might have an

untoward approach or attitude to that particular

objection. This was recognized in Sam's case by

the Court of Criminal Appeal in New South Wales.

The Court of Criminal Appeal in this case made

great moment, and I particularly refer to pages 91

to 93 of the application book, of the failure to

object to the irrelevant yet possibly highly

prejudicial question asked of the police witness, Payne, by the member of the jury to the effect as

to how long the record of interview was. It will
be recalled that the record of interview was, in

fact, four hours in length, but because there had

been a successful application for separate trials,

the record of interview that was relevant to the

trial in question was only of half an hour

it the import that possibly the defendant, the accused, the applicant was up to other wrongdoing

duration, or that part of the record of interview. with

and the jury were entitled to therefore speculate

on what the possible other wrongdoing was.

Lo Presti 9 24/3/94

This would have been an impermissible question

if asked by the prosecutor. What was counsel for

the applicant to do when the jury sought to ask
that question? If he objected he was left in the

bind where the jury would speculate as to what the

defence had to hide about that question being

asked. If he did not object, which was the case

here, he let into evidence prejudicial material

that was completely irrelevant to the charge under

consideration. The result of that, in my

submission, was a miscarriage of justice in this

case, and special leave, it is submitted, should be

granted in this case particularly in relation to

this issue because of the substantial miscarriage

of justice, and because this case provides a
vehicle in which this Court can examine this issue

of jury questioning. If the Court pleases.

MASON CJ:  Thank you, Mr Grace. The Court need not trouble

you, Mr Bongiorno.

On the issue of apprehended bias, we are not

persuaded that Mr Justice Teague or the court below

fell into error in concluding there was in the

particular circumstances no reasonable apprehension

of bias.

On the issue arising from the questioning of witnesses by members of the jury, we are not

persuaded that there is a firm rule of law

prohibiting the asking of questions by jurors.

Clearly enough, such questioning is undesirable and
in this case it seems to have been permitted to an

extent which we find surprising. However, it did

not result in any miscarriage of justice. In the

circumstances, the application for special leave

must be refused.

AT 2.25 PM THE MATTER WAS ADJOURNED SINE DIE

Lo Presti 10 24/3/94