Rangi & Ors v NSW Crime Commission

[2004] HCATrans 393

[2004] HCATrans 393

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S522 of 2003

B e t w e e n -

GLENDA JANE RANGI

First Applicant

LILLIAN RANGI

Second Applicant

LAWRENCE RAY KELLY

Third Applicant

and

NEW SOUTH WALES CRIME COMMISSION

Respondent

Office of the Registry
  Sydney  No S523 of 2003

B e t w e e n -

LILLIAN RANGI

First Applicant

LAWRENCE RAY KELLY

Second Applicant

GLENDA JANE RANGI

Third Applicant

and

NEW SOUTH WALES CRIME COMMISSION

Respondent

Office of the Registry
  Sydney  No S524 of 2003

B e t w e e n -

LAWRENCE RAY KELLY

First Applicant

LILLIAN RANGI

Second Applicant

GLENDA JANE RANGI

Third Applicant

and

NEW SOUTH WALES CRIME COMMISSION

Respondent

Applications for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 2004, AT 11.43 AM

Copyright in the High Court of Australia

__________________

MR R. NAIR:   Your Honours, I appear for the applicants.  (instructed by the applicants)

MR I.D. TEMBY, QC:   May it please the Court, I appear for the respondent to each of the applications.  My learned friend, MR P.F. SINGLETON, appears with me.  (instructed by the Solicitor to the NSW Crime Commission)

GLEESON CJ:   Yes, Mr Nair.

MR NAIR:   Your Honours, the applicants press all the points of appeal in their application which was drafted by themselves without benefit of legal representation.  I address with regard to these two special leave grounds relied on in the applicants’ supplementary summary of argument, the grounds being:  one, with regard to Part 3.10, sections 128 and sections 132 of the Evidence Act (NSW); two, regarding the failure of the New South Wales Court of Appeal to consider the grounds of appeal to that court connected with the inadequacy of the provision against hardship made by the primary judge for the dependant children and the issues raised therewith. 

With regard to the Evidence Act (NSW) special leave point, section 132 of the Evidence Act (NSW) states:

If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part –

the part being Part 3.10 containing section 128 –

the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision -

being 128.  It appears from the respondent’s summary of argument that the respondent’s entire answer to this special leave point is that the requirements imposed by section 128 do not arise unless a person is already giving evidence and the applicants did not give evidence before his Honour.  Should I take your Honours to that particular - it is in the application book at page 121 at the bottom, the last sentence, bracket:

the requirements imposed by s 128 do not arise unless a person is already giving evidence – and the applicants did not give evidence before his Honour. 

However, what we are relying on is not 128 but rather the obligations imposed by section 132 which is to make a witness or party aware of the provisions on the protections of 128.  The question then arises, what will it avail the respondents in their answer, or will it avail the respondents that in fact the party, in this case the defendants, did not give evidence and indicated they did not wish to give evidence.

Now, section 132 talks of “witness” or “party”.  The definition in the Evidence Act itself, in the dictionary in the Evidence Act - at Part 2 clause 7 of the dictionary states that, and I will read that ‑ ‑ ‑

GLEESON CJ:   Is this the point dealt with on pages 78 and 79 of the application book?

MR NAIR:   Yes, that is the Court of Appeal’s written judgment where the Court of Appeal at paragraph 41 talks of:

The defendants did not put on any evidence to support the case that they were unaware of the provisions of s128 -

et cetera.  Yes, indeed, your Honour, and in particular page 20, which goes on to say in the first paragraph:

Greg James J observed that during the argument he pointed out that evidence given in the proceedings might well be available for use in the criminal proceedings.

As the Court of Appeal observed that could be said to be putting the opposite proposition, opposite to that required by section 132. 

GLEESON CJ:   Well, it is paragraph 42, the first sentence, is it not?

MR NAIR:   Yes, that says:

There would be absolutely no reason for Greg James J to suppose –

yes, your Honour.  What we say first is, yes, section 132 is clearly related to a situation – in order to answer your Honour’s question, or what I believe to be your Honour’s question - section 132 is clearly intended for a situation such as ours where the defendants chose not to give evidence and it can clearly be inferred, or should have been inferred that they did not wish to give evidence because they were afraid that not being granted the adjournment in the civil matter anything they said they might say under cross-examination, et cetera, something that may avail against them in the criminal matter and instead of making them aware - and we say the obligation intended by legislation is an obligation on the court itself – instead of making them aware of the protection under 128, it can be inferred that the primary judge directed them otherwise and as much is conceded by the respondents. 

Then the next question arises and that is the question which is the special leave point with regard to interpretation of legislation.  It would be fair to say that it is now the law in New South Wales, as enunciated by the Court of Appeal that the requirements or obligations of section 132 are met – the requirement that the court satisfy itself – these requirements are met if it is possible to infer that the trial or primary judge was themselves satisfied and this notwithstanding that it is also possible and can clearly be inferred that the trial judge – well, first not before I go to inference, that one, the trial judge did not themselves make the applicants aware and, two, it can be inferred and in fact in reality it can be shown in reality the applicants were not in fact aware of the provisions or the protections under section 128.

The question is, what is the nature of the obligation imposed by the words, “the court must satisfy itself” as used in the legislation.  It would appear that the Court of Appeal satisfied itself – was held that his Honour the primary judge was satisfied because the Court of Appeal held, and this is now the law, that if you have in simple terms legal representation in some part of the proceedings and if it can be inferred that the judge was satisfied that these legal representatives would have advised you of the protection and therefore you chose not to give evidence because you were so advised then that is all that is needed to satisfy the requirements of the legislation in section 132.

We submit, with great respect, that the Court of Appeal erred in this regard.  That is not the law intended by Parliament.  The Parliament of New South Wales intended that it is the courts of New South Wales who should have the obligation to ensure the awareness of these fundamental protections and that this duty and obligation should not be left to mere, if I might put it that way, mere legal practitioners.  The wisdom of Parliament, if I might phrase it that way, in so intending, as we say it was the intent of the legislation, is in fact illustrated by the subsequent turn of events in this matter itself and I say in this matter, I talk both of the civil matter, the confiscation of assets and the subsequent criminal proceedings.

There was an adjournment made in the civil matter which happened before the criminal trial took place for an adjournment of the criminal matter because the defendants wished to change their plea from guilty to not guilty and were told by an earlier judge that in the civil matter, a different judge, that in a sense coming to the court with a plea of guilty would really prejudice the civil case against them.  However, the adjournment was not granted.  The assets forfeiture order was made and then subsequently a few months later the matter went before the criminal jurisdiction of the District Court of New South Wales where his Honour District Court Judge Coorey, granted leave to change the plea and did so largely on the basis of evidence from two legal practitioners, one the barrister who acted for one of the applicants, Miss Glenda Rangi, and the solicitor who acted for Miss Rangi and both the solicitor and the barrister gave evidence.

It was the evidence of the barrister, and if I might summarise it without naming him, Mr Barrister of counsel:

conceded that Miss Rangi had never admitted that she committed any crime and that she had urged him to defend the matter. 

He said:

“Glenda, if you don’t accept my advice I can withdraw or you can sack me”. 

Mr Barrister conceded, and this is from the judgment of his Honour Judge Coorey, Mr Barrister:

conceded that he said he said to Miss Rangi, “Laurie –

her husband –

is going to plead guilty so I suppose you are going to plead guilty -

as well.  The lawyer, Mr Lawyer, the solicitor for Miss Rangi also gave evidence that he said to Miss Rangi:

“You have the right to change your plea.  If you are not happy you can change it.”  Miss Rangi, was not told that she could not withdraw her plea of guilty unless the Court gave her leave. 

As his Honour noted, and I say this without – as his Honour noted the legal representatives acted in every professional and proper manner but nevertheless the legal representatives were wrong and wrong in many regards and this underscores, as I have earlier submitted, the wisdom of Parliament in entrusting this duty of ensuring the protections upon the courts and accordingly, with the greatest of respect, I submit that the law as laid down by the Court of Appeal is wrong and this is the special leave point.  The point is that Part 3.10 of the Evidence Act (NSW) is a law of everyday general application.  It is a law related to fundamental protection.  If, as we respectfully submit, the Court of Appeal is wrong and that is not the law in New South Wales today, is not the law intended by Parliament, then respectfully, the law cries out to be rectified. 

I will now, if I might, go onto to the second point and the second point is with regard to the hardship orders made in regard of the children.  The first aspect of that point is notwithstanding that it is clear that the point was raised in one of the three appeal draft notices of appeal to the Court of Appeal, the Court of Appeal simply did not deal with the point.  It is probably a simple mistake, but it did not deal with the point.  It referred to the point in its initial - in part of its judgment where it gave that point a particular number, a file number if I might call it that, where there were three notices of appeal and this point was raised in the draft notice of appeal in CA40108 of 2003.

I have made a small, well two mistakes in my written submissions.  I said that other than notwithstanding that the CA judgment referred to the three applications for leave there is no further mention in this judgment to the issues raised in the draft notice of appeal.  That is incorrect.  At page 64 of the appeal book, at paragraph 12 under “Applications for leave to appeal” the Court of Appeal confirms that:

The defendants sought leave to cross-appeal against the quantum of the order made on 17 March 2003.

This is file matter CA40108 of 2003.  So that appeal did get before the court, but other than these two references, no reference is made whatsoever to that particular ground of appeal.

GLEESON CJ:   What was argued before the Court of Appeal?

MR NAIR:   What was argued?  The clients represented themselves.  In a sense, there were a number of affidavits.

GLEESON CJ:   But reasons for judgments of courts usually respond to arguments that are put to them.

MR NAIR:   In a sense, they said that it was not an adequate provision of ‑ ‑ ‑

GLEESON CJ:   Well, $20,000 was the ‑ ‑ ‑

MR NAIR:   Yes, $20,000 because there were three children aged six, eight and 13 and that that would not be adequate.  The fact is, if they had to sell the house for instance, they would incur – they were all on social security - they would incur an additional rental expenditure of between $100 and $200, which roughly works out, I presume, to about $5,000 to $10,000 a year, a provision of $20,000 in total.  It can be inferred that for three children of that age, and in circumstances where some of the assets have been removed, and if for instance, a house particularly is removed, other expenditure has to be directed away from the children towards some other – towards providing accommodation and it is fairly clear, and I believe that was argued.

Unfortunately, I did not represent them and the transcripts do not in detail cover what was said, but I think it is fair to say that they said it did not provide adequately for the hardship and that where the interests of children are concerned that the courts should make special inquiry, I think that much was suggested, into the actual needs of the children.  I believe they also referred in this regard to the Family Provision Act (NSW) as indicating that the courts had some obligation under this confiscation of crimes assets to, in fact, inquire into the actual hardship caused to the children, and what compensation would compensate, if I might put it that way, for the hardships that would be suffered.

It is true that the applicants represented themselves.  There would be problems with that, nevertheless, there are important issues which are outlined in the supplementary argument, summary of argument, related to this issue which were not considered by the Court of Appeal simply because they omitted to consider the ground altogether and since this relates to the very important issue of children, I mean, the legislation – it is not incidental that the dependants were children of these applicants.  That is not the matter at all.  The legislation itself is intended for children, it is in that sense universal, who might fall foul of any misdoings on the part of their parents and yet nevertheless, being innocent require protection.  The legislation is

specifically directed to that protection and to the questions based therein.  I notice the lights.  Thank you, your Honour.

GLEESON CJ:   Just one matter.  What the Court of Appeal had before it were applications for leave to appeal.

MR NAIR:   Yes, yes, and what they did was grant – in some cases, dismissed the leave to appeal and in some cases actually allow the leave, application for leave but in the case the applicant’s application for leave only to the day of the hearing itself and then not grant the appeal itself, because what was before them were draft notices of appeal and cross‑appeal.

GLEESON CJ:   Yes, thank you, Mr Nair.  We do not need to hear you, Mr Temby.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this case.  The applications are dismissed with costs.

AT 12.05 PM THE MATTERS WERE CONCLUDED