R v Sinanovic
[2000] NSWCCA 397
•11 December 2000
CITATION: R v SINANOVIC [2000] NSWCCA 397 FILE NUMBER(S): CCA 60023/99 HEARING DATE(S): 4 February 2000 JUDGMENT DATE:
11 December 2000PARTIES :
Regina
Hakija SinanovicJUDGMENT OF: Wood CJ at CL at 1; Hulme J at 2; Greg James J at 62
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 97/11/0597 LOWER COURT JUDICIAL
OFFICER :McGuire DCJ
COUNSEL : Crown: M Grogan
Appellant: In personSOLICITORS: Crown: SE O'Connor
Appellant: In personDECISION: Appeal dismissed
- 22 -IN THE COURT OF
No. 60023/99
CRIMINAL APPEALWOOD CJ at CL
HULME J
GREG JAMES JMonday, 11 December 2000
Regina v Hakija SINANOVICJUDGMENT1 WOOD CJ at CL: I have read the reasons for judgment of Hulme and Greg James J, and agree with the orders proposed.**********IN THE COURT OF
CRIMINAL APPEALNo: 60023/99
WOOD CJ AT CL
HULME J
GREG JAMES J
Monday, 11 December 2000
REGINA -v- Hakija SINANOVICJUDGMENT2 HULME J: These proceedings are the fifth of 5 appeals brought by the Appellant against convictions in the District Court. Although represented in 2 of the appeals by Mr Coombs of counsel, who appeared for the Appellant in the trial which was the subject of this appeal, the Appellant was not formally represented in the appeal with which these Reasons are concerned. Again Mrs Sinanovic was allowed to speak on the Appellant’s behalf although he himself also addressed the Court on some matters.
3 The relevant conviction occurred on 13 January 1999 and was in respect of a charge that, on 11 December 1995, at Sydney the Appellant did dishonestly obtain for himself a diamond ring by deception viz by representing that he would on that day deposit into the bank account of Stefano Designer Jewellery Pty Ltd a cheque for $27,000.00. The charge is one provided for under s178BA of the Crimes Act 1900 which prescribes a maximum penalty of 5 years imprisonment. On 5 March 1999 Judge McGuire sentenced the Appellant to imprisonment for a minimum term of 16 months commencing on 16 May 2003 - the date after a previous sentence imposed by Judge Horler is due to expire - and an additional term of 12 months commencing on 16 September 2004.
4 In the Appellant’s Notice of Appeal, the grounds of appeal are stated as follows:-5 In support of the appeal the court was provided with a page of written submissions which are impossible to summarise and therefore best to quote verbatim. This I have done. For convenience I have grouped these further submissions and numbered the groups as if they were additional grounds of appeal.
1. Trial by ambush
2. Trial without instructions.
3. No preparation.
4. Denied assistance.
5. Interference with jury members and crown.
6. Improper orders regarding defence’s witness evidence.
7. Prejudice and discrimination.· Trial by ambush.
“8.
· Denied natural justice
· Denied right not to be tried unfairly.
· Forced on notwithstanding the Crown failed to comply with orders to produce complete and full brief, documentation served during course of trial.
· Prejudice towards Appellant not removed to satisfy a fair trial.· No expert evidence or expert witness regarding foreign currency (Nicaragua Cordobas).
9.
· Judge did not hear Mr D Vernon from Westpac on a voir dire to establish if he was an expert witness.
· No documentation Nicaragua Government Legislation, Banking Acts, Banking Circulars produced.· Crown witness Skouras did not appear.
10.
· The absence of his evidence raises a doubt.· There were two separate rings in question.
11.
· The Judge did not once the jury was empanelled put to them if any of them knew any of the Crown witnesses or the accused.
12.
· It was not until the jury retired to the room and returned a juror informed the Judge he knew the accused.
· He was dismissed.
· If may well been discussions regarding the accused with other jurors forming a prejudice within the jurors’ mind (sic).
· There is no evidence to rule that out. (P12 7/1/99 L40). It then continues on P14 the jury asks “why is the accused not in the dock?· The Judge showed and acted with perceived bias.
13.
· Interfered with proper preparation of trial (P17 7/1/99) involving corrective services.
· The Judge took the action to ensure the accused was more crippled and disadvantaged.
· The Judge’s action allowed for the Crown to be notified of what the accused had for his defence at the beginning of the prosecution case.
· I was prohibited to have any communication to assist with the trial.
· Evidence given by the Accused in the witness box.
· There is evidence questions were not put to the Crown witnesses.
· His Honour did not recall the pawn dealer.
14.
· The Crown serving statements during the course of the trial and documentation in relation to the brief at the last minute put the Appellant in a disadvantaged position to prepare properly for his trial.”
6 There was no appeal against sentence.
7 In summary the Crown case was as follows: On 30 November 1995 the Appellant approached Mr Canturi, the Manager of Stefano Jewellery Pty Ltd (hereinafter referred to as “Stefano”) and asked whether Mr Canturi was prepared to make up items of jewellery including a large diamond ring incorporating rubies and sapphires. The Appellant made various other representations calculated to demonstrate that he was wealthy. He subsequently visited Stefano on other occasions to discuss the designs. Other representations to similar effect were made subsequently.
8 On 8 December 1995 the Appellant proffered to Mr Canturi a large bundle of Nicaragua Cordoba bank notes and produced a newspaper clipping setting out an exchange rate which seemed to suggest that the value of the bank notes was $360,000. The notes were retained by way of deposit against the jewellery to be produced, Mr Canturi believing the notes to be of the value indicated.
9 On 11 December 1995 the Appellant attended Stefano and stated that he wished to purchase a ring as a Christmas present for his wife. He selected a 3.1kt diamond set ring said to be distinctive and bearing the Stefano logo on the ring band. The price of the ring was $27,000.00. The Appellant produced a cheque book but was told it was against company policy to accept cheques. After some other discussion the Appellant said he would take the cheque and deposit it in the company’s bank account. Mr Canturi acting under the belief that he was holding a substantial deposit on the jewellery to be manufactured, allowed the Appellant to leave with the ring but no cheque was ever deposited.
10 On the same day the Appellant pawned the ring at the Aceben pawn shop. The amount agreed to be lent was $8,000.00 of which only $4,000.00 was paid pending production by the Appellant of a receipt. Subsequently more of the $8,000.00 was advanced by the proprietor, Mr Heiler. Mr Heiler gave unchallenged evidence that he was a well qualified gemologist with extensive experience in handling jewellery. He identified copies of what he said were the relevant pawn dockets referring to a “ring emerald trillion cut 3cwt 8.4 gr” and identified the ring referred to in the preceding paragraph, inter alia because it bore a Stefano logo.
11 On 1 January 1996 the Appellant redeemed the ring. Some time later it was purchased by a Mr Hondronikolas who by chance went into Stefano to have it valued. Mr Canturi recognised the ring and retained it.
12 A Mr David Vernon was called to give evidence. He was a qualified currency verifier working at Westpac Bank, his expertise involving checking and verifying a variety of world bank notes relating to their currency and genuineness. He gave evidence to the effect that the Nicaragua Cordobas were worthless. It appeared that the sheet of newspaper which the Appellant had given to Mr Canturi was dated 1982.
13 In his case the Appellant gave evidence. Inter alia, he denied purchasing a ring from Stefano and denied there was any agreement to deposit $27,000 in the Stefano account. He said that the ring pawned on 11 December was an 11.6 gram diamond ring and not one of 8.4grams. It was not one inscribed with the Stefano logo. The Appellant asserted that the documents and records produced by Mr Heiller were forgeries and the signatures on them were not his. He denied ever giving to Mr Heiller a ring bearing the Stefano logo. He also denied handing over the Nicaragua Cordobas to Mr Canturi but asserted that they did have a value and were used in business dealings as bills of exchange.
14 I turn to the grounds of appeal.
Grounds 1, 8 and 14
15 Precisely what matters are relied on under these grounds is not clear. However, it may be that they include the following. In January 1999 when the matter was apparently listed, there was an application on behalf of the Appellant for an adjournment upon the ground that the Appellant’s then legal advisers, who had only been engaged for some 4 weeks (although elsewhere it is said the matter had been assigned to the Appellant’s solicitors on 25 November 1998), had not seen certain exhibits on the court file and had been substantially hampered in their access to the Appellant by prison staff. There was also a complaint that one page of a statement from a principal Crown witness had been missing. The matter was adjourned until Wednesday. His Honour suggesting or perhaps directing, that there be prepared a list of things said to be outstanding and an Affidavit detailing what material had been requested and what responses had been received.
16 On Wednesday 6 January 1999, Mr Coombs asked firstly for an hour’s adjournment as Mrs Sinanovic had not arrived and when she did would need to read the Affidavit to the Appellant. His Honour indicated he would not grant this request. Mr Coombs also asked for a shorter period of time to have the ring on which the prosecution relied valued, this being said to be relevant to the question of identification. Access was also sought to some pages from the notebook of a Constable De Souza.
17 Mr Coombs also asserted that great difficulty was being had in obtaining instructions from the Appellant because he did not read or write English. However after some discussion as to the extent and nature of Mr Coombs’ problem, Mr Coombs indicated that while the Appellant had some difficulty, mostly he could make himself adequately understood to give his legal advisers appropriate instructions.
18 On that day the Crown also sought a ruling from Judge Maguire permitting it to tender the statement of a Mr Skouras who was apparently overseas. Some evidence was called on that topic and His Honour ruled that he was not satisfied that all reasonable steps had been taken to secure the attendance of Mr Skouras and in those circumstances he did not propose to admit that person’s statement.
19 The final matter dealt with was a statement by the Crown to the effect that it proposed to lead further evidence from Mr Heiller going beyond that contained in the statement supplied. It was intimated that a statement of the further evidence would be supplied to Mr Coombs by 12.30 pm. After his Honour asked whether there was anything further outstanding and received a negative response, the matter was adjourned for the day and, judging from the transcript, sometime round about 11.30am. Earlier there had been discussion to the effect that it should be possible for Mr Coombs to interview his client in the cells for the rest of the day if necessary.
20 The transcript of the following day indicates that the trial then commenced without any application for a further adjournment or complaint of unpreparedness.
21 Later that day, the 7 January, it became apparent that the Crown was proposing to tender some jewellery designs which Mr Canturi had made. Objection was taken to the effect that these had been sought by the defence some time previously but were said to be unavailable. His Honour adjourned for some 20 minutes directing the Crown to show Mr Coombs what the documents were and anything else it was proposed to show to witnesses. On his return his Honour was told that the matters were resolved.
22 On 8 January, just after lunch, the trial judge asked whether there was going to be some evidence as to the value of the Nicaragua Cordobas. The Crown Prosecutor intimated that he proposed to call a David Burman (sic) from the Westpac Bank, a remark which elicited a response from Mr Coombs that there had been no statement of that person served, that the defence had only just been advised and they objected. The transcript recorded that discussion ensued but no details of the discussion appear. Nor is there any indication in the transcript that his Honour made a ruling on the objection - a fact which disposes me to the view that the issue was resolved. Later that afternoon, Mr Vernon of the Westpac Bank was called. He was cross examined and his evidence concluded on that day.
23 I should perhaps add that it is clear from the transcript that the matter had been before the District Court on a number of prior occasions including that on which it had been set down for trial. When one has regard to the adjournment of the trial from the Monday to the Thursday, to the extent to which the matters, the subject of complaint by Mr Coombs, were rectified, and to his indication that there was nothing further outstanding at the time proceedings were adjourned on the Wednesday, I see no basis for concluding that there is any substance in these three grounds of appeal.24 Except in so far as they may relate to the matters to which I have referred above, it is not apparent what the complaints are which are intended to be encompassed by these grounds. Insofar as the grounds do relate to the matters already dealt with, there is no substance in them. It is clear that the Appellant was represented by Counsel who considered himself as able to conduct the trial.
Grounds 2, 3 and 4
Grounds 5 and 12
25 The transcript records that prior to the empanelling of the jury, the Crown Prosecutor read out a list of witnesses and outlined the nature of the charge. Later that morning His Honour received a note from the jury to the effect that one of the jurors thought he might know the accused. Mr Coombs submitted that that juror should be discharged saying he was happy to proceed with the remaining eleven. There was no objection by the Crown Prosecutor and His Honour excused that juror and proceeded with the trial.
26 It was submitted by Mrs Sinanovic that his Honour had failed to comply with s38(7) of the Jury Act 1977. That sub-section provides:-
“Before the selection of the jury at a criminal trial, the judge must, subject to the regulations:
(a) direct the person prosecuting for the Crown to inform the jurors on the panel of the nature of the charge and the identity of the accused and of the principal witnesses to be called for the prosecution; and
(b) call on the jurors on the panel to apply to be excused if they consider that they are not able to give impartial consideration to the case.”
27 Although the transcript does not record in exquisite detail the steps to which the sub-section refers, the notation in the transcript to which I have referred is the customary way in which compliance with s38(7) is recorded. Despite the later intimation of a juror to which I have referred, I am not persuaded that there was any failure to comply with s38(7).
28 I would also add that as the issue of the continuation of the trial with the remaining jurors was dealt with in accordance with the Appellants’s counsel’s submission, no error of the kind identified in Wu v The Queen (1999) 73 ALJR arises. There was, and is, no basis to apprehend nay prejudice to the Appellant.
29 At the same time as the juror was discharged His Honour answered another question raised by the jury as to why the Appellant was not in the dock, telling them that while that is the usual situation, as a matter of convenience in the circumstances of the trial, he had allowed the accused to be elsewhere in the court.
30 After the luncheon adjournment on 7 January, application was made to discharge another juror on the basis of instructions Mr Coombs had received to the effect that the discharged juror and one of the remaining jurors had been in a lift which descended to the basement, that the lift doors opened and those jurors were able to see the Appellant standing in one of the legal interview rooms forming part of the cell complex. Some prejudice was said to arise from the indication that the Appellant was in custody.
31 After counsel, on His Honour’s instructions, inspected the lift and the interview room and Mr Coombs obtained further instructions, the situation was described to be that it was possible to see somebody in the interview room from the lift if that person was on the right hand half of the room and Mr Coombs said he thought the Appellant might well have been on “that side”. His Honour said that he would not discharge the jury and any prejudice could be displaced by a direction. He asked Mr Coombs if a direction was requested and Mr Coombs said no.
32 The transcript records that his Honour gave reasons for this decision. However the decision his Honour made was obviously one within the legitimate exercise of his discretion and provides no basis for allowing the appeal. I would for my part have come to the same view as did his Honour.
33 Many accused persons are in custody at the time of their trials. While, to reduce or eliminate the possibility or suggestion that a jury may be influenced by extraneous factors, it is preferable that it not occur, often the fact of such custody must be obvious to a jury. Not infrequently this will arise in consequence of the presence or actions, sometimes necessary, of officers of the Corrective Services Department. If the fact such custody becomes known to a jury is to be treated as entitling an accused to a discharge, many of society’s worst offenders would never be tried. For my part, I have more confidence in the jury system, than to think that persons will be convicted because they are seen to be in custody prior to a jury’s verdict. No error is shown in his Honour’s refusal to discharge the jury in this case.
34 Otherwise, a consideration of the transcript of the trial reveals nothing of possible significance which could be encompassed within these grounds. They also fail.
Ground 6
35 It is not apparent what this ground relates to unless it be the rejection of portions of the evidence sought to be tendered on behalf of the Appellant. A review of the transcript shows that there were only two instances where evidence of possible significance to the result of the trial was sought to be tendered through defence witnesses. One tender was of a document purporting to be a photocopy of a document issued by the Aceben pawn shop. The document described the weight of the ring pawned to be 11.6 grams, whereas other documents from that shop described the weight as 8.4 grams. Originally the document was rejected, there being no evidence as to the non-availability of the original and there being some grounds in the evidence of Mr Heiller and a police officer Mr Mason for thinking that the photocopy might have been forged. However, what seems to have been the same document was admitted during the evidence of the Appellant as Exhibit 6.
36 The second tender was of some extracts of the London Financial Times, directed to proving the value of Nicaraguan Cordobas. Discussion recorded in the transcript at the time of the tender and rejection of these documents indicates that the basis of rejection was the absence of evidence that the London Financial Times was speaking of the same type of Cordoba as had been handed to Mr Canturi. Mr Vernon, the expert witness for the Crown had given evidence to the effect that there were at least 2 types, the one shown to him having been “demonetised” in May 1991. The admissibility of evidence as to value depended on it being established that the extracts from the Times were concerned with the same notes or currency as had been handed to Mr Canturi. There was no such evidence and, particularly in light of the evidence from Mr Vernon, those extracts were properly rejected.
37 Accordingly, this ground also fails.
Ground 9
38 Mr Vernon’s qualifications to express an expert opinion was the subject of challenge before the Jury. His Honour allowed questioning bearing on Mr Vernon’s expertise to continue and later the Crown Prosecutor is recorded as saying “Your Honour I seek to go on from that stage”.
39 No objection to this request is recorded and accordingly I would infer there was none. The transcript does not record any response from His Honour following upon that request but it seems clear from the questions which were then asked that His Honour acquiesced in the request having been notified by the witness’ qualification. The evidence given by Mr Vernon established his expertise and there was no obligation on the trial judge to hold a voir dire inquiry first. Nor was there any requirement for legislation or other documents from Nicaragua to be produced. This ground fails.
Ground 1040 Mr Hondronikolous, the person who purchased the ring the subject of the charge, and who then sought to have it valued by Stefano gave evidence that he had purchased the ring from Mr Skouras who was an acquaintance or customer. Other evidence, not challenged, of Senior Constable Douglas and Mr Michael Canturi established that it was on 13 January 1996 that Mr Hondronikolous sought to have it valued. Mr Heiler’s evidence supported by his business records show redemption occurred on 11 January. There is thus nothing to suggest that any evidence Mr Skouras could have given went beyond describing dealings with the ring during the period between 11 and 13 January and possibly its identification. To ensure that justice was done to the Appellant this Court was in fact supplied with a copy of Mr Skouras’ statement. A reading of it reinforces what I have just said. Mr Skouras does state that he looked at the ring through a microscope although what follows as to his observations seems to refer to only the stone in it. Earlier Mr Skouras had said that he did not notice any inscription on the ring and not, as Mrs Sinanovic asserted in submissions to this Court, that “there was no marking on the ring”.
41 There was evidence at the trial that Mr Skouras was in Greece and nothing to suggest that his absence then had any sinister significance. In these circumstances that absence could not reasonably raise, or contribute to raising, any reasonable doubt.
Ground 11
42 As I have indicated above, the Crown case was that the Appellant agreed to purchase and then took away a 3.01Kt diamond ring which he subsequently pawned and which later came into the possession of Mr Hondronikoulos. The Appellant denied such an agreement or the taking away of such a ring. He agreed that on 11 December he pawned a ring at the Aceben pawn shop but asserted it was one weighing 11.6 grams and not one which bore the mark of Stefano Jewellers.
43 The Appellant also said that there was a ring which belonged to him and in which Stefano Jewellers had inserted one or more diamonds which he had supplied.
44 Whether there was more than one ring is irrelevant except insofar as it bears on the issue of whether the Appellant received a ring from Michael Canturi. If the ring pawned by the Appellant on 11 December 1995 corresponded with the description of the ring that Michael Canturi said the Appellant had taken on that day, the Crown case would be much advanced.
45 The proposition that there was more than one ring came from, or was solely dependent upon the evidence of, the Appellant. Whether that evidence should be believed or was sufficient to cast a reasonable doubt over the case of the Crown was ultimately a question for the jury. I am not persuaded, having regard to the other evidence, that the floating of this proposition was such as to give rise to such a doubt. There is no substance in this ground.
Grounds 7 and 13
46 It is convenient first to deal with the specific matters raised in the ground I have numbered 13 which offers to be a particularisation of the somewhat vague ground 7.
47 At page 17 of the transcript of 7 January 1999, three topics are dealt with. One is the sighting or possible sighting of the Appellant in an interview room by members of the jury. I need add nothing to what has been said above concerning that topic. A second was a claim that Corrective Service Officers had taken from Mrs Sinanovic some photographs that she was in the process of showing the Appellant. His Honour said that he had no jurisdiction to order their return but the transcript records that after certain remarks of His Honour they were handed back.
48 The third matter referred to on that page commenced with a remark of His Honour to the effect that he had received a call at lunch time from a Corrective Services Officer down in the cells seeking clarification as to the status of the Appellant’s wife.
49 It is clear that the Appellant’s wife seems to have acted as his adviser in and about a number of aspect of the proceedings and as his spokeswoman in one or more of his many court appearances. From observations made elsewhere in the transcript it seems that she may have sought to enjoy access to her husband while he was in custody similar to that commonly granted to legal advisers.
50 Against this background His Honour, having raised the topic said:-
“… Regardless of what orders might previously have been made, as far as I am concerned I am making, giving the visits by the accused wife to him in the cells, or any other place the accused is represented by highly competent counsel and the competent solicitor, and as far as I am concerned the trial will proceed in the normal fashion, whereby if there are to be instructions obtained from the accused it will be obtained by the solicitor and by his counsel. So that there is no doubt about it, I am giving no directions to the Corrective Services officers with regard to visits by the accused’s wife.”.
51 No reasonable criticism can be made of anything appearing in the passage just quoted or of His Honour for anything else appearing on that page of the transcript or in other areas of the transcript where preparation on the part of the Appellant for his trial was the subject of debate. A fortiori there is no basis whatsoever for concluding that His Honour was motivated “to ensure the accused was more crippled and disadvantaged”.
52 I turn to the issue of notification to the Crown of the Appellant’s defence. On page 1 of the transcript of 6 January 1999, Maguire DCJ is recorded as asking Mr Coombs what was the issue in the trial. It was not an unreasonable request in the circumstances then existing. Mr Coombs of course had a wide latitude in responding to this question although given that it was asked in the course of an adjournment application he was making, it is not surprising that his reply contained a degree of particularity: Obfuscation was not calculated to improve his chances upon the adjournment application. Mr Coombs’ reply was “the issue is whether or not Mr Sinanovic took from Stefanos Jewellery shop, without paying for it, a diamond ring”. He went on a little later to indicate that the identity of the ring was an issue.
53 Later, while cross-examining Mr Canturi, Mr Coombs asked:-
Q. So if I told you that it (the bundle of Nicargaruan Cordobas said to have been handed to Mr Canturi) was worth more than a million dollars would that surprise you?
The question was hypothetical and it was not, on its face, likely to have elicited a relevant answer. Not surprisingly it prompted McGuire DCJ to ask what Mr Coombs was putting and elicited a reply to the effect that Mr Coombs proposed to call evidence showing that the notes had a value.
54 Neither of these situations provides grounds for legitimate exception to be taken to His Honour’s seeking to be advised as to the nature of the defence case even if any response meant that the Crown was notified also of what that case was. Indeed, in my view, there is nothing wrong in a judge seeking to be advised of the nature of the defence in a criminal trial. The answer may well assist in an objection, or an issue as to admissibility.
55 The next complaint, viz that the Appellant was prohibited from having any communication to assist with the trial is, as a matter of fact, simply wrong. It is clear that in granting the adjournments which he did and in the observations made during the debates on that topic, His Honour was concerned to facilitate communications between the Appellant and his legal advisers. His Honour’s permitting the Appellant to sit on the floor of the court outside the dock was also directed to assisting communication.
56 Again it is not clear what is being referred to by the statement “Evidence given by the Accused in the witness box” unless it be connected with the earlier “submission” to the effect that the judge showed and acted with perceived bias. However a consideration of the evidence and of the events transpiring during the time the Appellant was in the witness box makes it clear that neither by frequency nor content did interventions by the trial judge provide the slightest indication of bias on his part.
57 I can only presume the assertion that there is evidence questions were not put to the Crown witnesses refers to statements by the trial judge to this effect. Certainly there were a number of these including one where his Honour explained to the jury that it is one of the rules under which the courts operate that, if one wants to contradict a witness, one has to be fair to him and give him the opportunity of dealing with a matter that is going to be subsequently raised. Some of the occasions when the matter was considered arose by way of objection by the Crown and his Honour can hardly be criticised for dealing with such an objection. On a few occasions his Honour raised the topic himself. However when one has regard to the rationale behind the rule, it does not seem to me that by his Honour doing so, it can be reasonably suggested that he displayed bias. And although, as Mr Coombs acknowledged at one stage, there had been a failure to put certain matters on which the Appellant gave evidence to Crown witnesses who could have been expected to have been cross-examined on those matters, the Appellant was not precluded from giving evidence about them.
58 The gravamen of the final complaint dealt with under this ground is difficult to understand. In consequence of Mr Coombs not cross-examining one or more of the Crown witnesses along the lines of evidence emanating from the accused when he was in the witness box, his Honour permitted, over objection, the recalling of Mr Frank Canturi in reply so that some such matters could be dealt with. However, there was no application by any one for the recall of Mr Heiller and his Honour was certainly under no obligation to recall him.
59 That concludes all I need say about ground 13. Ground 7 does not obviously add anything to that ground but in any event, I have seen nothing to indicate any prejudice or inappropriate discrimination by the judge or otherwise, in the trial. Both grounds 7 and 13 fail.
60 In my view the appeal should be dismissed.
Other Matters
61 There is a final matter to which I should refer. After the decision was reserved in this and the three other appeals heard at the same time, the Court received further submissions and supporting documentation apparently from Mrs Sinanovic. Details of these, and my reasons for regarding this material as of no assistance to the Appellant, are referred to in my Reasons in proceedings 60564 of 1997.
IN THE COURT OF
CRIMINAL APPEALNo. 60023 of 1999
CORAM: WOOD, CJ. at CJ.
HULME, J. GREG JAMES, J.
Monday, 11 December 2000REGINA v. HAKIJA SINANOVIC
JUDGMENT62 GREG JAMES, J: In this matter, as in the other matters, I have had the benefit of seeing the draft judgment of Hulme, J.
63 I share his Honour's view that the appeal has no substance and should be dismissed. I share his Honour's view that there is nothing in the additional material and submissions provided to us that raises any concern. For myself, I have read the trial transcript closely and, as his Honour has done, attempted to give significance to the oral and written submissions provided by and on behalf of the appellant without regard for any technical stricture to see whether any matter, whether set forth or related to the grounds of appeal, might exist which would raise for me any concern. I have been unable to find any.
64 Such arguments as were presented on the present matter were in the main distractions from the issues at trial and the mode of presentation of those arguments, in my view, were such as to present the greatest difficulty in the court dealing with the matter.
65 I have already, in respect of this appellant's arguments on the appeal from the trial conducted by Karpin, DCJ., referred to the possibility that in the future questions of whether an appellant mounting an entirely unarguable appeal, should raise the question subject of whether an order that the time spent pending the appeal should not count as part of the sentence, might need to be considered. I reiterate those observations in respect of this appeal and the other appeals other than that from the conviction before Stewart, ADCJ. decided today.
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