Love v Ackland

[1990] HCATrans 265

M -!.J,,~u. STRALIA,,l!'" -~'.)>~~-««<-''

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P22 of 1990

B e t w e e n -

BRIAN LOVE

Applicant

and

FRANK ACKLAND

Respondent

Application for special

leave to appeal

MASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 25 OCTOBER 1990, AT 4.00 PM

Love 1 25/10/90

Copyright in the High Court of Australia

MR J. COURTIS:  If Your Honours please, I appear for the

applicant in this matter.	(instructed by Claudio
Russo Shaw)

MR R.J.M. ANDERSON, OC:  If the Court pleases, I appear

with my learned friend, MR D.W. NEWNES, for the

respondent. (instructed by Mallesons

Stephen Jaques)

MASON CJ:  Yes, Mr Courtis.

MR COURTIS:  Thank you, Your Honour. The special leave

points in this application are, firstly, that fraud

vitiates a judgment or conviction and, secondly,

that it vitiates procedural difficulties in the

path of an aggrieved applicant, as in this case, to obtain redress or, in the alternative, if it is the

view of the Court that the procedural difficulties

are insurmountable then we would submit, with

respect, that under section 37 of the Judiciary Act

this Court has power to make a declaratory judgment

which would have the effect of entering a verdict
of acquittal rather than of conviction as in the

present case.

There are no authorities that I can find, and

it seems from my learned friend's list of

authorities there are no authorities that he can

find in Australia, and certainly of this Court,
that deal directly with these issues, that is, the

effect of fraud on judgments, procedural matters or

difficulties in the path of the applicant and, with

great deference, may I say, bearing in mind the

identity of this respondent and of the respondents

that follow, in the application that follows. For

these reasons, if Your Honours please, we would

submit that this is a matter suitable for special

leave.

Now, the factual background, very briefly, is that there was a trial in 1980 where my client, the

applicant, was charged and tried on a charge of

creating a false entry in a minute book of a
company.	Now, at that trial the Crown led a

document called "the brown binder" and said, "This is the minute book of the company". In fact, upon

the evidence of two Crown witnesses the Crown, on its own case, proved the brown binder was not the

minute book of the company. The applicant was

acquitted of that charge and the trial judge made a

comment afterwards to the effect that he agreed

with the verdict of the jury.

Two years later the applicant was then tried

on a charge of fabrication of evidence and of

perjury which goes back to and relates back to the

brown binder, and this is the central complaint of

Love 25/10/90

the applicant, and has been the central complaint

all the way through and up the judicial hierarchy.

He says that this was a fact fatal to the

prosecution case in the second trial, namely, at
the first trial the brown binder, the very document
in issue in the second trial, was proved on the
Crown case to not be the minute book of the company
and yet when the applicant attempted to raise the
matter by way of a plea of autrefois acquit with

the trial judge the plea was rejected, the trial

proceeded, and I might add the applicant was

representing himself at the trial.

The trial proceeded in a way where the judge

expressed and demonstrated impatience, anger, and

the applicant would say bias against him and he was
convicted and imprisoned. Subsequently the
applicant did, in fact appeal to the Full Court of

the Court of Criminal Appeal and he initially filed

a long notice of appeal of handwritten grounds of

appeal. Many of the grounds, I would concede, were

not relevant. However, some of the grounds did go

directly to his basic complaint, that is, that the

very document on which he was convicted on the

second trial was proved by the Crown evidence in

the first trial to not be the minute book of the

company.

Unfortunately his then counsel abandoned all

of those grounds and substituted his own and the

grounds substituted by his then counsel really were

directed to the rudeness of the trial judge to the

applicant and the whole difficult nature of the way

in which the trial was conducted by the trial

judge. Now, with one justice dissenting, the Court

of Criminal Appeal dismissed that appeal and the
applicant appealed to this Court for special leave

but special leave was denied.

So, I concede at the outset that the applicant

has, in fact, exhausted the normal appellate

procedure and, of course, on his case his basic

complaint about the minute book of the company or

the brown binder not being the minute book of the
company.	The basic complaint was never dealt with
on its merits by any court.	Consequently he

applied, again in person, for certiorari to bring

up the record of the district court so that the

conviction can be quashed.

Now, I concede that there are numerous

procedural difficulties in the path of the
applicant and, indeed, the court below, in a
unanimous judgment, spent considerable time dealing
with each and every one of those procedural

difficulties, but again it seems that somehow the

central complaint was missed or lost in some way

Love 3 25/10/90

because, again, it seems somehow that the basic
proposition that fraud - if indeed this be fraud -

if fraud did exist, that it vitiated the judgment

and vitiated the procedural difficulties.

In my respectful submission, that is precisely

the point at which we are today and this is why the

applicant is here today. He says, "Somehow, all

the way along the line from the trial judge all the

way through, my basic complaint has not been heard,

has not been dealt with, has not been determined."

Now, that may be as it may, because normally I

would concede that would not be a special leave

point, but the reason why, it is my respectful

submission, it is a special leave point, is

precisely because, and again with great deference

to the identity of the respondents and the nature

of the issues raised and complained of, that the

whole question of the effect of fraud upon a

judgment, the effect of fraud upon the conduct

complained of as against the respondents, is a

question that has not been determined by this

Court. It is a question of general application.

It is a matter that is fundamental to the administration of criminal justice, and it is

Australia wide.

With great respect, that is the case for the

applicant. I could go further, but I think I will

only be repeating myself. If Your Honours please,

that is our argument.

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

Court is not persuaded that any appeal in this

matter would have any prospect of success. For
that reason the application for special leave is

refused.

MR ANDERSON:	If the Court pleases, may I have costs?
MASON CJ:	You cannot oppose that, can you, Mr Courtis?

MR COURTIS:	No, Your Honour, I cannot.
MASON CJ:	The application is refused with costs.

AT 4.08 PM THE MATTER WAS ADJOURNED SINE DIE

Love 25/10/90