Pesic v The Queen

[1998] HCATrans 37

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S127 of 1996

B e t w e e n -

NENAD PESIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 12.27 PM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court please, I appear for the applicant.  (instructed by Paul Townsend)

MR N.R. COWDERY, QC:   May it please the Court, I appear with my learned friend, MR A.M. BLACKMORE, for the respondent.  (instructed by the Office of the Director of Public Prosecutions (New South Wales))

HAYNE J:   Yes, Mr Wendler.

MR WENDLER:   If the Court pleases.  It is my respectful submission, your Honours, that it is in the interests of justice that the applicant be granted special leave to appeal in the circumstances of his case by reason of the fact that the applicant has been occasioned or the victim of a serious, in my respectful submission, and demonstrable miscarriage of justice.  The miscarriage of justice to which I have just referred commenced to occur at the time an adjournment was refused to the applicant before the Court of Criminal Appeal in June of 1996.  He sought a short adjournment so that he could have the assistance of counsel to effectively and efficiently argue his appeal against conviction. 

The application book discloses that initially there was a short adjournment and he was represented by counsel and essentially the matter was adjourned for a number of hours in order that his legal aid status could be determined, following which his lawyers then abandoned him.  He came up to court unrepresented and was, in effect, forced on to argue his own case.  I do not say that the miscarriage of justice arises solely out of the fact that he was unrepresented.  That compounded, the fact of his unrepresentation, compounded what later manifested itself into what I would describe, with respect, as a demonstrable miscarriage of justice.

There are two areas which, in my respectful submission, go to the issue whether or not, objectively, there has been in the circumstances a serious miscarriage of justice warranting a grant of special leave to appeal in the circumstances of this case.

On page 18 of the application book there can be found that portion of the judgment of the Court of Criminal Appeal concerning the applicant’s application in the appeal to introduce fresh evidence.  At line 25 in that paragraph there can be found findings in relation to the credibility of evidence and also in relation to various inferences or deficiencies that might be described concerning a statutory declaration which appears on page 7 of the application book which had been raised by the witness, that the applicant suggested would provide this fresh evidence.

HAYNE J:   Why was the evidence fresh?

MR WENDLER:   Technically, it did not necessarily come within the technical fresh evidence rules.

HAYNE J:   What do you mean by “technical”, Mr Wendler?  Was it fresh or was it not fresh?

MR WENDLER:   It was fresh in the sense that it certainly was not available, or did not appear to be available, at the time of his trial and was not introduced by ‑ ‑ ‑

HAYNE J:   Was not led.  Why do you say it was not available to him?

MR WENDLER:   On my instructions, I understand that the person Taouk, who was the witness that was going to give the fresh evidence, was still awaiting trial apparently in relation to some other offence and, as well as I understand it, was not too enthusiastic before his trial to involve himself in the trial of the applicant.  However, that is not entirely fatal, as indeed the Court of Criminal Appeal set out when it reproduced a passage from an earlier Court of Criminal Appeal judgment, Reg v Hemsley.  On page 18 there can be found in that paragraph which is taken from Hemsley:

That is not, of course, a universal and inflexible rule, but it will be departed from only in unusual circumstances; those circumstances will ordinarily be related to the strength of the fresh evidence in question.

Now, this fresh evidence was strong evidence in the sense that this witness was coming along to say, look, he had no involvement in this supply of narcotics.  Now, if the jury believed that as a reasonable possibility, then one would have to say that that was evidence which would have affected the outcome of the trial and may be evidence which can be described as reasonably dispossessing the applicant of a fair chance of acquittal.

But that is not my point.  My point is this:  the Court of Criminal Appeal, in circumstances of an unrepresented appellant, made findings of credibility on the basis of a document when the witness was outside the court room, the court earlier having made an order that that witness attend.  In my respectful submission, those circumstances give rise, especially in the circumstances of an unrepresented appellant, to an objective sense of unfairness.  On top of that, the appellant suggests that following his submissions, as best he was able to make the submissions, the court then proceeded to give judgment.

Now, he was in no position to make a submission in realtion to reasonable apprehension of bias.  He firmly got the impression that that was a judgment that had already been ‑ ‑ ‑

HAYNE J:   What was the high point of the evidence upon which you rely in this respect?

MR WENDLER:   Reproduced in the application book is a letter written by the solicitor to his Honour Justice Dunford who delivered the judgment on behalf of the Court of Criminal Appeal.  That letter simply asks the question whether or not that judgment had already been written prior to the hearing of any oral submissions.  The response from the associate is a little cryptic, with respect, but it appears to suggest that that in fact was the case.  Now, in the State of New South Wales, the Criminal Appeal Act - may I just invite your Honours to just a portion of it so I can just develop this submission ‑ ‑ ‑

CALLINAN J:   Mr Wendler, I am sorry to interrupt you, but could I just come back to something.  You say the potential witness was outside the court ‑ ‑ ‑

MR WENDLER:   Yes, an order had been made earlier that ‑ ‑ ‑

CALLINAN J:   Is that Mr Taouk?  Who was that witness, Mr Taouk?

MR WENDLER:   Yes, Mr Taouk, he was outside.

CALLINAN J:   Was there any application by your client to call him?

MR WENDLER:   Yes.  He says is his affidavit which was filed some time ago and is identified as one of the documents relied upon, he said that on a number of occasions he asked the court, “Look, I’d like to call this person”, and that was refused.

CALLINAN J:   Is there any ruling of refusal?

MR WENDLER:   No, there is not.  My concern about this, of course, is here is an unrepresented appellant wishing to agitate a very important ground of appeal, with a witness outside, who the court decides in its discretion would not be called.  As a result, findings are then made in the judgment on issues of credibility and deficiency in the affidavit - in the statutory declaration - findings which, in my respectful submission, may have not been made had the court made an order or invited that witness to attend.  In other words, what he said in his statutory declaration, contrasted with the evidence in the trial, may have moved the court to make other findings favourable to this particular appellant.

HAYNE J:   It is said against you that the evidence of Taouk was assumed to be or taken to be, stated at its highest, in the statutory declaration or other paper that was put to the court.  What do you say about that?

MR WENDLER:   That is what he said in his statutory declaration but the failure to have him called may have resulted in different findings in the judgment.  Just because there is something ‑ ‑ ‑

HAYNE J:   Why?  It is put against you that his evidence, at its highest, was in the statutory declaration.

MR WENDLER:   Well, that is put against me but ‑ ‑ ‑

HAYNE J:   Yes, but what is your response to it?

MR WENDLER:   In my respectful submission, that evidence, if it were accepted, would have been enough, in my respectful submission, to have raised a serious concern as to whether or not the applicant had been dispossesed of a fair chance of acquittal because, put at its highest in the statutory declaration, he was saying he was not involved.

CALLINAN J:   Mr Wendler, how could that witness have improved upon the material which was already before the court in oral evidence and presumably subjected to cross-examination?  How could there be any improvement in that situation?

MR WENDLER:   The court found, as it were, discrepancies ‑ ‑ ‑

CALLINAN J:   No, how could he have done better, the witness, than he did in his statutory declaration?

MR WENDLER:   He may have done better in relation to answers that came out in cross-examination or answers from the Bench; he may have done better than what was put in the statutory declaration.  That is a possibility.

CALLINAN J:   How could he do better when he was tested than the way in which he was doing untested, as it were, in the document?

MR WENDLER:   I take your Honour’s point.  If it goes no higher than that, nevertheless that is evidence which is exculpatory of the criminal responsiblity of the applicant.

CALLINAN J:   But inconsistent - with inconsistencies, as the Court of Criminal Appeal found, and which you do not dispute that those inconsistencies existed.

MR WENDLER:   I do not dispute it; it is the way they found, that is where the miscarriage of justice objectively arises, because had he been called, it may well be that those discrepancies and inconsistencies may have been explained.  That is the problem.  You have an unrepresented appellant handling what, on the face of it, is a difficult appeal on any occasion, involving introduction of fresh evidence with a potential of examination‑in‑chief and cross-examination.

HAYNE J:   That brings us back to the point that Taouk was available to give evidence at the trial but was not called.

MR WENDLER:   No, he was not called, although the appellant sought that he be called.

HAYNE J:   At trial, I speak of, not on appeal.

MR WENDLER:   Quite, he was not called at trial. But nevertheless, I move back to the issue, that that is not a universal and inflexible rule when it can be demonstrated it is connected to a miscarriage of justice.  The court will always introduce fresh evidence, irrespective of whether the rules have strictly been complied with, if it is obvious that not to introduce it would occasion a miscarriage of justice.

The other matter of some importance, in my respectful submission, arises in this way.  Can I just invite your Honours to a portion of the Criminal Appeal Act.  Section 5 of the Criminal Appeal Act, of course, gives an appellant a right of appeal against conviction.  Section 15 provides that:

An appellant shall be entitled to present the appellant’s case and the appellant’s argument to the court in writing if the appellant so desires.

Implicit in that statutory language is an indication that oral argument is the method of persuasion, it is the method of resolution, to cases involving appeals against conviction and applications for leave to appeal against sentence.  If the court has formulated a judgment before a person, especially a person who is unrepresented, has an opportunity - has formulated a judgment, then of course that diminishes the right given by section 15, apart from the fact it is suggestive of an apprehension of bias by reason of

prejudgment.  So that was another matter that the appellant was loaded with, as it were, in his circumstances:  unrepresented, matter involving a difficult application and a matter where it appeared, at least to him and on the face of the objective evidence available, that the court had a prepared judgment which it then proceeded to deliver.

So, if the Court pleases, a combination of those matters are suggestive, in my respectful submission, of a demonstrable miscarriage of justice.  He has not had a fair go, that appellant, and I am inviting your Honours to interfere in the circumstances of this case.

HAYNE J:   Thank you, Mr Wendler.  We will not trouble you, Mr Cowdery.

The prospects of success of the application are not such as to warrant the grant of special leave.  Special leave will be refused.

AT 12.41 PM THE MATTER WAS CONCLUDED