Regina v Sinanovic

[2000] NSWCCA 386

CITATION:	Regina v Sinanovic [2000] NSWCCA 386
FILE NUMBER(S):	CCA 60116/96
HEARING DATE(S):	Friday, 8 September 2000
JUDGMENT DATE:	10 October 2000
PARTIES :	The Crown Hakija Sinanovic (Appl)
JUDGMENT OF:	Fitzgerald JA at 1; Newman J at 23; Greg James J at 68

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	94/11/0628
LOWER COURT JUDICIAL OFFICER :	Karpin DCJ

COUNSEL :	W C Dawe QC (Crown) Appl in person
SOLICITORS:	S E O'Connor (Crown) Appl in person
CATCHWORDS:	CRIMINAL LAW - obtaining money by deception - leave to appeal against conviction - unmeritorious appeal
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986
CASES CITED:	R v Lawrence (1981) NSWLR 122
DECISION:	1. Application for leave to appeal against conviction dismissed; 2. Application for leave to appeal against sentence dismissed

IN THE COURT OF

CRIMINAL APPEAL

60116/96

FITZGERALD JA
NEWMAN J
GREG JAMES J

TUESDAY, 10 OCTOBER 2000

REGINA v Hakija SINANOVIC

JUDGMENT

1    FITZGERALD JA: On 17 June 1994, the applicant was arraigned on two counts of dishonestly obtaining money for himself by deception contrary to s 178BA of the Crimes Act 1900. Pursuant to s 32(1) of the Criminal Procedure Act 1986, he elected to be tried by a judge sitting without a jury. His trial took place before Karpin DCJ from 28 November to 1 December 1995. Her Honour convicted the appellant on both counts, which were stated in the following terms in the indictment:

“(1) For that he on or about 18 August 1993 at Campsie, in the State of New South Wales, dishonestly obtained for himself $10,000 by deception, namely, by falsely representing to Denis Xenos that the said $10,000 would be invested in foreign currency and would be repaid in drachma to Denis Xenos within 3 to 4 days at the rate of about 210 drachmas for each Australian dollar when, to the knowledge of the said Hakija Sinonovic, it would not.
(2) Further, for that he on or about 19 August 1993 at Campsie, in the State of New South Wales, dishonestly obtained for himself $53,200 by deception, namely, by falsely representing to Denis Zenos that the said $53,200 would be invested in foreign currency and would be repaid in drachma to Denis Xenos within 3 to 4 days at the rate of about 210 drachmas for each Australian dollar when, to the knowledge of the said Hakija Sinonovic, it would not.”

2    On 11 April 1996, the applicant was sentenced on the first count to imprisonment for 12 months to commence on 29 January 1996 and expire on 28 January 1997 and on the second count to imprisonment to commence on 29 January 1996 and expire on 28 March 1997. The additional term of imprisonment set by her Honour was 16 months to commence on 29 March 1997 and expire on 28 July 1998. The applicant has served the sentences imposed but is now in prison for other offences.

3    The applicant was represented before Karpin DCJ by different counsel at his trial and on his sentencing. He was not legally represented in this Court.

4 The applicant did not appeal against his conviction within the time prescribed by s 10 of the Criminal Appeal Act 1912. At the hearing of these proceedings, an attempt was made to blame some unidentified and unidentifiable registry officer who it was said told the applicant’s wife to wait to appeal against his conviction until after he was sentenced. Although it was claimed that she acted on that advice, the applicant’s wife did not wait until after he was sentenced but lodged an application for an extension of time to appeal against conviction on 14 March 1996, about 2 ½ months out of time. His application for leave to appeal against sentence was lodged after he was sentenced on 11 April 1996.

5    These proceedings were listed for hearing on 12 December 1997, but the applicant was not ready to proceed. The prosecution submissions were filed about a fortnight prior to that date. The hearing in this Court took place on 8 September 2000. Lengthy written submissions were received from the applicant’s wife by facsimile on the previous day. Another submission was received from the applicant’s wife, also by facsimile, on the morning of the hearing.

6    The “Grounds For Appeal” stated in the document sent by facsimile on 7 September were:

“Denial of natural justice
Abuse of process
Unfair procedure
Denied a fair trial and committal proceedings
Prejudice and Discrimination
Miscarriage of justice
Unlawful arrest and procedures
Malicious prosecution with intent
Conspiracy and corruption
Abuse of human rights
Abuse of international laws
Ignorance of the laws, rules and regulations
Absence of factual evidence
Absence of expert evidence
No power to prosecute
No power from judge to listen
Crown conduct resulted in miscarriage of justice
Defence counsel conduct resulted in miscarriage of justice
Trial judge conduct resulted in miscarriage of justice
Perceived bias from trial judge towards appellant
Denied to exercise constitutional right to proceed with appeal before concluding sentence and parole
Wrongfully, illegally and unlawfully detained in custody”

7    The further document sent by facsimile on 8 September was headed “Conspiracy and Corruption”.

8    The documents sent by facsimile on 7 and 8 September contained extensive legal submissions on a variety of issues, with references to numerous cases. In addition, the “Authorities for the Appellant” were nominated as follows:

“Butterworths NSW Criminal Practice and Procedures
Director of Public Prosecutions NSW (Prosecution Policy)
Laws of Australia
Halsburys Laws of Australia
Criminal Law NSW (Watson, Blackmore, Hosking)
Australian Constitutional Laws
Chamberlain v R (1984) 51 ALR 225
Tim Anderson, Alister Dunn v R (1983) The Ananda Marga Conspiracy Case.”

9    When the proceedings came on for hearing in this Court on 8 September 2000, the applicant asked to be represented by his wife, who appeared in court a little later. The applicant’s wife said that she wished to represent him. When asked the reason, she said:

“Your Honour, the appellant is unrepresented. I have been preparing this appeal, I have full knowledge of this appeal and it would be in the interests of justice, bearing in mind that the appellant cannot read or write in English and requires assistance. He has asked that I appear on his behalf to raise any matters in submissions for this appeal.
…
One other thing further. I have been granted leave by other courts and represented Mr Sinanovic in respect of his legal matters. The first leave was granted by the High Court, Brennan CJ, and from that moment on I’ve sought to grant leave of the courts and they have subsequently granted that leave. I do have full knowledge of all of Mr Sinanovic’s matters and I also have in my possession all the documentation in respect of this appeal at the moment. Thank you, your Honour.”

10    Over the prosecution’s objection, the Court granted the applicant’s wife leave to represent him subject to the withdrawal of that leave if the Court considered it appropriate to do so. In the course of the hearing, the applicant’s wife referred to him for instructions, which involved delays as they conversed in a foreign language. It was obvious that the applicant understood the submissions which his wife had been making and her discussions with members of the Court. Part-way through the hearing, with the applicant’s consent, his wife withdrew to let him “deal with it”. He did so without difficulty. Subsequently, after the applicant had concluded his submissions, his wife again addressed the Court, although perhaps not as comprehensively as she would have done if permitted to continue indefinitely.

11    Throughout the hearing in this Court, attempts were made to elicit details of the applicant’s generalised assertions in order to ascertain whether there was any substance in his appeal which, in summary, contends that there has been a miscarriage of justice because he was unfairly tried and wrongly convicted.

12    The prosecution case was that the complainant, Denis Zenos, was told by a Mr Smalios that the applicant had said that he could obtain Greek drachma at a highly favourable rate in exchange for Australian dollars. On 18 August 1993, in the course of a discussion at premises occupied by the applicant, he represented to the complainant that he could supply 210 Greek drachma per Australian dollar within a few days. The exchange rate at the time was approximately 162 drachma to the dollar. On the basis of the applicant’s representation, the complainant gave the applicant $10,000 in cash that day and a further sum of $53,200 in cash on the following day.

13    Between then and October 1993, when he complained to police, the complainant only obtained $12,800 drachma (equivalent to about $700) from the applicant. In the meantime, the applicant had given the complainant some Peruvian currency (which could not be converted into Australian currency in Australia) which the complainant returned to the applicant the following day, and, subsequently, some documents purporting to be cheques drawn on the Dirina Bank (Ex D), which the complainant also returned to the applicant on the following day. Correspondence exchanged between solicitors for the complainant and the applicant and statements made by the applicant to Detective Long in October 1993 contained unfulfilled assurances by the applicant that the complainant’s claim would be met.

14    The applicant gave evidence at his trial. According to that evidence and his assertions in this Court, he was told by the complainant that he had $70,000 to $90,000 to invest and he told the complainant that he believed that a profit could be made by investment in Peruvian currency. He did not receive any money from the complainant on the day when they first met or until after a series of meetings over a period of about 10 days. He and the complainant signed a contract relating to investment in Peruvian currency, written in the Italian language, at or after a meeting in a solicitor’s office. His wife then wrote the contract out in English and he and the complainant signed it. He gave the complainant Peruvian currency (as their contract recorded). The complainant owed the applicant “some $72,000” in addition to the money which he gave to the applicant - “over and above the $63,000 he paid [the applicant]”. The complainant’s son took the Peruvian currency illegally from Australia and banked it in the Philippines; and the Peruvian currency, or other currency into which it was converted, was used in the purchase of property for the complainant in Greece.

15    The applicant also said that he gave the complainant drachma, a ring and Canal Bank notes on the basis that they would be returned and that a ring which was tendered in evidence by the prosecution was not the ring which he had given to the complainant. He said that the prosecution evidence that there were discussions between him and the complainant about renting a property were incorrect - the discussions related to a purchase of the property. Further, when Detective Long spoke to him he threatened him and offered not to proceed with charges if the applicant paid him $100,000.

16    In this Court, the applicant’s complaints were to the following effect:

(a) The Director of Public Prosecutions had no power to prosecute the applicant and the District Court had no jurisdiction to try or convict him because the offences of which he was convicted involved “foreign currency”.

(b) The applicant could have been sued “civilly” and should not have been prosecuted.

(c) Bail conditions had restricted the applicant “from going overseas to obtain funds and evidence foreign required for his trial bearing in mind that the charges were foreign related not Australian”.

(d) Despite the applicant’s request, there was no Italian interpreter present at his trial;

(e) Amendments were made at the commencement of the trial to delete a reference to “investment” in the counts on which the applicant had been arraigned on 17 June 1994.

(f) The trial was not adjourned to enable the applicant to have earlier charges involving “foreign currency” (of which the prosecution was aware) determined first or to allow him to investigate, obtain and produce or subpoena additional evidence in answer to the present charges. The additional evidence which the applicant wished to produce related to (i) his transactions with the complainant, including their contract written in the Italian language; (ii) evidence and documentation relating to discussions at a solicitor’s office between the complainant and the applicant concerning their transactions; (iii) “activities that the Crown witnesses were involved in”; (iv) the complainant’s dealings with his relatives, from whom it was said that the complainant obtained all or part of the money which was the subject of the complainant’s second payment to the applicant; (v) the removal of foreign currency from Australia to the Philippines by the complainant’s son; (vi) the purchase of property in Greece by or on behalf of the complainant; and (vii) unspecified instructions which the appellant had given to four solicitors who, at different times, had written to the complainant on his behalf, each of whom he said had disobeyed his instructions. The applicant said that some of this additional evidence had been in the applicant’s possession at the time of his trial, namely a videotape of events within his study and “all the paperwork, … from the Direna Bank, Central Bank of Middle East and … other currency issue”. He had not used the evidence in answer to the present charges because, on counsel’s advice, he wished to use it first to defend other charges. He intended to use the evidence later to set aside his convictions on the present charges but, a few days after he was convicted, a “key witness” against him, apparently one “Terks”, stole the evidence from his car. Additional evidence which the applicant said he wished to obtain by subpoena included bank records of the complainant and his son, including records from the “Central Bank” of the Philippines.

(g) The prosecution adduced evidence, which had not been produced at the material committal hearing or notified to the applicant prior to his trial, which was prejudicial to the applicant in that it supported the prosecution case; namely:


(i) There were differences in detail between the complainant’s evidence at the trial and his evidence in a statement which he had earlier made (or perhaps at committal), and in particular his evidence at trial did not use the word “investment”. Further, Exhibit D was not the subject of the complainant’s evidence at the committal hearing a notice to the applicant prior to the trial. He had no opportunity to instruct his counsel in relation to those documents. A copy of Exhibit D, not the original, was admitted into evidence; the prosecution did not call an expert witness to prove that the applicant’s handwriting (or signature) was on Ex D. The applicant’s evidence at his trial was that he never gave Ex D to the complainant and it was “more than likely this evidence was fabricated or stolen or someone else had made up that evidence...”. A seemingly associated complaint was the “[t]hey said that I handed it to them and I said that they stole it from my study”.

(ii) Mr Smalios gave evidence of his relationship and dealings with the applicant, some of which was said to be irrelevant in that it did not “go to the elements of the charges” or “advance the Crown case”.

(h) Despite the applicant’s requests, the prosecution failed to prove, or to call expert evidence to prove the following matters which were essential to its case and/or which would have been helpful to the applicant’s case and were essential to a fair trial, namely:


(i) the contract in the Italian language between the complainant and the applicant;

(ii) the source of the money which the complainant gave to the applicant and whether it was “from good clean origin”;

(iii) the bank records of the complainant and others whose bank records the applicant wished to have in evidence;

(iv) whether Peruvian currency (and perhaps Greek drachma) were “valid” currencies;

(v) the controls on the removal of foreign currency from Australia;

(vi) the documentation necessary to take foreign currency from Australia to the Philippines or that permission for the removal of the Peruvian currency had been given by the applicant as its owner;

(vii) that the complainant (and/or his son) took Peruvian currency to the Philippines (contrary to the controls on the removal of foreign currency from Australia);

(viii) that the complainant (and or his son) had used the money obtained in the Philippines with the foreign currency taken from Australia to buy property in Greece;

(ix) whether the Direna Bank and the “Central Bank of Middle East” existed.

(At times, some or all of these complaints related to “200,000 or 300,000 Peruvian currency” and at times to “gold coins $50 million worth”. Later, in another context, the applicant referred to other charges against him involving “6 million and $92 million”. It is possible that the large amounts referred to were merely exaggerated examples.)

(x) whether the complainant would have received 210 drachma per dollar “if not maybe more” if the Peruvian currency handed by the applicant to the complainant and returned to the applicant had been converted into Greek drachma (presumably outside Australia). An associated complaint appeared to be that a Reserve Bank official who gave evidence (i) lacked necessary expertise and/or (ii) did not give all the evidence which he should have given.

(i) A statement by the arresting police officer, Detective Long, which had not been made and recorded as soon as it should have been, was read out in evidence.

(j) The prosecution failed to call the second police officer who was present when the applicant was arrested to corroborate the evidence of Detective Long.

(k) The prosecution failed to call evidence to explain its failure to produce items which had been tendered or referred to at the committal hearing, which were described as “a ring, gold coins, Greek bank notes and mobile telephones.” An associated allegation was that the prosecution had destroyed all or some of these items.

(l) “.. the Crown and defence counsel did not concentrate on the elements of the charges in question.” “The Crown’s questioning of the appellant was not of one to establish facts to support a finding so as to arrive at the truth but to engage in an improper manner of questioning, a fishing expedition, so forcing the appellant to say a wrong word and use it against him.” The example given by the applicant was that he was asked questions concerning statements which he had made at the committal hearing.

(m) All lawyers who represented the appellant at his trial and on his sentencing disobeyed his instructions and were incompetent. His trial counsel omitted to put to the complainant or other prosecution witnesses matters of which the applicant proposed, but was not permitted, to give evidence. A perusal of the three pages in the appeal record to which the Court’s attention was directed indicates that the objections were not formally ruled on but were otherwise resolved. Another question recorded on one of the three pages was properly disallowed on another ground. After submissions, the topic the subject of the first objection was proceeded with in the form of altered questions to the applicant. The topic the subject of the second objection had already been covered by the applicant’s evidence, which remained on the record. The third objection related to the tender of a document by the applicant. The tender was withdrawn, but the subject matter was covered by the applicant’s evidence.

(n) The trial judge was either biased or perceived to be biased. Her Honour had refused the applicant an adjournment on an another occasion, showed aggression at the trial, argued a lot with the applicant’s counsel, reprimanded him for “giggling” on one or two occasions during the complainant’s evidence, described him as “childish” although she later described him in her sentencing remarks as “experienced”, and “[f]rom the beginning didn’t want to believe [the applicant]”. In sentencing the applicant, her Honour described him or his behaviour as “bizarre”. The “best example” of the trial judge’s bias or perceived bias was “when she interrupt me to answer the full question”.

17    An additional complaint made by the applicant in relation to his sentences was that the trial judge had erroneously noted 13, not 14, months imprisonment on the warrant on the indictment and had subsequently amended the error in the absence of the applicant.

18    The trial judge accepted the complainant’s evidence. It was plainly open to her Honour to do so and to be satisfied beyond reasonable doubt on that evidence that the applicant was guilty.

19    (a) The applicant was arraigned 17 months prior to the commencement of his trial and acknowledged that he had some months’ notice of the trial date. The amendment of the counts in the indictment at the beginning of the trial were not substantial and did not raise any new issue. The applicant had ample time in which to prepare, including to conduct investigations, obtain evidence and issue subpoenas. Although the conditions of his bail prevented him from leaving Australia, he was represented by a solicitor and barrister.

(b) No application was made to the trial judge for an interpreter or for the adjournment of the trial, or that her Honour decline to hear and determine the charges against the applicant.

(c) No objection was made to the prosecution evidence, which was opened early in the trial, to the prosecution’s omission to adduce other evidence, or to the cross-examination of the applicant. Further, some of the applicant’s complaints relate to steps taken by the prosecution which were the subject of agreement or concession. For example:

(i) No objection was taken to Mr Smalios’ evidence, which provided part of the context for the dealings between the complainant and the applicant. On the contrary, prior to Mr Smalios giving evidence, the prosecutor and the applicant’s counsel had agreed on what evidence from him was admissible.
(ii) The applicant’s counsel stated at the trial that he had no objection to the corroborating police officer not being called.
(iii) At the trial, the validity of the foreign currencies referred to was not disputed by the prosecution.

(d) None of the points raised by the applicant in this Court was raised at the trial.

(e) There is no basis for a suggestion that:

(i) the applicant was hindered in his cross-examination of prosecution witnesses or the presentation of his defence;
(ii) the applicant’s trial was unfair in any respect;
(iii) the applicant was impermissibly deprived of a possibility of acquittal;
(iv) the applicant was incompetently defended; or
(v) the trial judge was biased or appeared to be biased.

(f) The amendment to the term of imprisonment noted on the warrant was a mechanical correction of a patent error to have the warrant coincide with the sentence imposed on the applicant according to the transcript.

20    Proceedings in which a variety of ridiculous assertions are combined with scandalous allegations against trial judges and unjustified criticism of legal representatives present special challenges. Time and resources are pointlessly wasted, and other cases delayed. Nonetheless, the Court must strive to discover whether there is any legitimate grievance buried in the morass.

21    I have undertaken that task, and am in no doubt that the applicant’s complaints are totally devoid of merit. It would be otiose to say more.

22    The applications for an extension of time to appeal against conviction and for leave to appeal against sentence should be refused.

23    NEWMAN J: This is an application for leave to appeal out of time against conviction and an application for leave to appeal against sentence.

24 The applicant was tried before Karpin DCJ sitting alone on two counts of dishonestly obtaining money by deception pursuant to s 178BA of the Crimes Act 1900. The maximum sentence prescribed by that subsection is five years imprisonment

25 An appropriate election for trial by judge alone pursuant to s 32(1) of the Criminal Procedure Act 1986 had been completed by the applicant and the Crown.

26    In the event the applicant was convicted by her Honour and (while there was a dispute about the term) was sentenced to a fixed term of twelve months imprisonment on the first count and a head sentence of two years six months consisting of a minimum term of fourteen months and an additional term of sixteen months. The minimum term of fourteen months expired on 28 March 1997. Her Honour convicted the applicant on 1 December 1995.

27 Notice for application for extension of time was filed on 14 March 1996. Section 10 of the Criminal Appeal Act requires notice of appeal to be filed within twenty-eight days of conviction - accordingly the need for the applicant to apply for leave to appeal out of time. In cases of extended delay this Court has held that to obtain leave an applicant must demonstrate that exceptional circumstances exist. See R v Lawrence (1981) NSWLR 122.

28    Where the delay is of a similar duration to that which existed here this Court, as a matter of practice, reviews the merits of the appeal in determining whether or not to grant leave. Should the applicant establish that the appeal is meritorious, that is, likely to succeed, then this Court, where the time delay factor is as here, will grant leave and allow the appeal. However, where the applicant is unable to demonstrate merit this Court will use its discretion to refuse leave.

29    I turn then to the Crown case. The Crown alleges that a Mr Xenos, a real estate agent, who had been told by a Mr. Smalios that the applicant could obtain Greek drachma at a highly favourable rate in exchange for Australian dollars, met the applicant at premises at Campsie occupied by the applicant and his family. In fact Mr Xenos had gone to those premises to collect a “To Let” sign which had been erected by him at a time when he was acting as agent for the owner of the premises.

30    In a discussion which ensued inside the premises the applicant claimed that he could obtain drachma at a rate of 210 to the Australian dollar for Mr Xenos.

31    Evidence was given by a senior foreign exchange executive of the Reserve Bank in the trial that at the relevant time, namely in August 1993, the exchange rate was 162.00 Greek drachma for an Australian dollar.

32    Xenos claimed that he gave the applicant $10,000 in cash on 18 August 1993 and on 19 August he gave the applicant a further sum of $53,200. Xenos stated that some days later the applicant gave him and his son a mobile telephone each, a ring and some Canal Bank notes.

33    Some days after that, at another meeting, the applicant gave Xenos Peruvian currency which he claimed was some 230,000 Peruvian currency units.

34    On the following day Xenos returned the Peruvian currency to the applicant who told him it was good he brought them back because they could not be exchanged in this country.

35    Thereafter Xenos sought to have his money returned which resulted in two further financial transactions occurring between the pair. The first involved the applicant in October 1993 giving Xenos documents which appeared to be cheques which were stamped Dirina Bank. Xenos returned these cheques to the applicant the next day.

36    In a further conversation the applicant in fact brought or gave Xenos 12,800 drachma which was equivalent to $A700. Thereafter Xenos engaged solicitors to recover his money and an exchange of letters occurred between Xenos’ solicitors and the applicant’s solicitors.

37    No return of either Xenos’ money in Australian dollars or in drachma occurred.

38    Again, in October 1993 following a complaint made by Xenos, a Det Long spoke to the applicant at his home. There the applicant agreed that Xenos had given him $63,200. A delay had occurred but Xenos would get his money within a couple of days.

39    The applicant in reply to the Crown case said that Xenos had told him when they met that he had between $70,000 and $90,000 Australian dollars to invest and that he, the applicant, had informed Xenos that he believed one could invest in Peruvian currency as a means of making a profit.

40    The applicant denied receiving money from Xenos on that day or the next day. He said that he had met with Xenos on a number of occasions over the next week and a half. In fact, his evidence was that those subsequent meetings were held in hotels, namely the Ritz Carlton or a hotel he described as the Park Gardens in Elizabeth Street.

41    Ultimately on 18 August 1993 the applicant claimed that a written agreement in Italian was signed by Xenos and the applicant which involved a transaction involving the exchange of Australian dollars into Peruvian currency.

42    He agreed that he had subsequently given Xenos drachma, a ring and the Canal Bank notes on the basis that they would be returned to the applicant. A ring which had been tendered in evidence by the Crown as being the subject ring was said by the applicant, in evidence, not to be that ring. He also denied stamping Dirina Bank on documents referred to earlier.

43    He claimed that when Det Long approached him he threatened him but said he would not proceed with charges if the applicant paid him $100,000.

44    Her Honour accepted the version given by Xenos and accordingly convicted the applicant.

45    At the appeal leave was granted to the applicant’s wife to appear. However, during the course of the hearing it became apparent to the court that she was dependent in making her submissions, on her husband for instructions. At that time the applicant himself took over the conduct of the appeal but later his wife was again given leave to make further submissions on his behalf.

46    The headings of grounds of appeal in written submissions prepared by his wife were these:

Denial of natural justice
Abuse of process
Unfair procedure
Denied a fair trial and committal proceedings
Prejudice and Discrimination
Miscarriage of justice
Unlawful arrest and procedures
Malicious prosecution with intent
Conspiracy and corruption
Abuse of human rights
Abuse of international laws
Ignorance of the laws, rules and regulations
Absence of factual evidence
Absence of expert evidence
No power to prosecute
No power from judge to listen
Crown conduct resulted in miscarriage of justice
Defence counsel conduct resulted in miscarriage of justice
Trial judge conduct resulted in miscarriage of justice
Perceived bias from trial judge towards appellant
Denied to exercise constitutional right to proceed with appeal before concluding sentence and parole
Wrongfully, illegally and unlawfully detained in custody

Despite diligent attempts by all members of the bench, it was extremely difficult to see how any of the matters sought to be put under each of these headings could relate to the trial. Such as could be in some way related showed no basis for concern.

47    I am of the view that no matter raised on behalf of the applicant is in any way meritorious. All submissions were, in my view, totally unarguable and I do not propose to deal with a myriad of unarguable propositions by dealing with them seriatim which would involve an otiose exercise in explaining the unarguable and dealing with such propositions with reference to law and logic. However, I believe it appropriate to demonstrate what I have just said by reference to two of the propositions advanced.

48    Let me say at once that these are not the most extreme examples of what I have described as unarguable propositions above. The first is an argument raised that this Court ought to admit into evidence a video recording which supports the evidence given by the applicant at the trial.

49    In written submissions dated 19 May 1997 signed by the applicant’s wife on his behalf the following statement occurs:

“The appellant had a ‘video’ of his study which showed all the ‘going-ons’. Before the trial the Crown was made aware of this video. The appellant was advised by counsel not to produce the video because of his other cases pending and that in the event he lost this case, this evidence would prove otherwise. The appellant lost the case.”

50    In later submissions dated 8 September 2000 that is the date of the hearing before this Court, a claim was made that the video recording and other papers had been stolen by a man named Terkes after conviction on 17 January 1996. Not only was the video stolen but other papers which were relevant to this appeal.

51    At a time when the applicant was conducting his own appeal he stated that the decision not to produce the video at the trial was his and not counsel and repeated that the material had been stolen after the trial was completed.

52    While, in these circumstances, the material could not in law, be considered as fresh evidence it should also be observed that the video was said to have been taken in the applicant’s study.

53    On the other hand in evidence at the trial the applicant deposed that the only meeting at his home between Xenos and himself was the first and the other meetings had occurred in hotels.

54    Additionally, of course, it was the applicant’s claim that the material had been stolen and thus could not be adduced as evidence before this Court in any event.

55    I should add that the applicant, when making submissions to this Court, appeared to be fluent in the English language and did not appear to have any difficulty in understanding matters raised with him by members of the court.

56    The second example involves a written submission made and taken up in oral argument by his wife that the letters written by certain of his solicitors in relation to the matter, were not written in accordance with his instructions.

57    The first of these letters dated 3 September 1993 challenged in a minor degree the amount claimed by Xenos and that the money would be returned to Xenos in approximately six to eight weeks. Reference was also made to a claim made by the applicant that he required the return of 124,000 Greek drachma, two mobile telephones and two sheets of uncut Canal Bank notes.

58    A second letter written by a different by a different firm of solicitors on 20 September 1993 adverts to the sum of $A63,200 being converted into Peruvian currency.

59    In a final letter written by the same firm who wrote on 20 September, a claim was made on the applicant’s behalf for the return of the property referred to in the letter written by the first solicitors, to which I have made reference, in exchange for a bank cheque.

60    The applicant, neither by way of oral or written submissions to this Court suggested what instructions he had in fact given. He placed no affidavit evidence before this Court or oral testimony to say what his instructions were. No oral or affidavit evidence was advanced by the applicant from the solicitors themselves - nor was there any suggestion that he had waived professional privilege in this regard.

61    As I have said these two examples are by no means the most extreme in terms of sustainability As I have indicated it would be an exercise in futility to deal with the others matters raised by the applicant or his wife.

62    I am thus of the view that as there is no merit in any matter raised the application for leave to appeal should be refused.

63 I turn then to the application for leave against sentence. No suggestion was raised on the applicant’s behalf that the sentence imposed was excessive. Having regard to the amount involved and the maximum penalty prescribed by s 178BA and the applicant’s prior record of false pretences this is hardly surprising.

64    What is raised is that on the warrant contained on the indictment the minimum term there recorded was thirteen months rather than the fourteen months which the applicant served.

65    There are two things which may be said about that submission. The first is that the transcript of her Honour’s remarks on sentence clearly indicate that she sentenced him to a minimum term of fourteen months in regard to the second count. The matter upon which the applicant relies involves a warrant contained on the indictment. The warrant contains the following:

“A minimum term of thirteen months to commence 29 January 1996 and to expire on 28 March 1997.”

66    That is a sentence of fourteen months. Plainly enough the written thirteen months is an error of transcription and the specified dates on the warrant indicate that her Honour did in fact, sentence the applicant to fourteen months. Thus there is no basis in the point raised on the applicant’s behalf.

67    Accordingly leave to appeal should also be dismissed.

68    GREG JAMES, J: The nature of the case at trial and the complaints made on appeal are explained in the judgments of Fitzgerald, JA. and Newman, J. which I have read in draft.

69    I gratefully adopt what their Honour's say in that respect. Although each adopts a slightly different approach to the substance of the appeal, they reach the same conclusions and for the same reasons, viz. that all grounds of appeal or complaint raised before us, or such as we, for ourselves, could find, were completely untenable and that therefore the applications for extension of time to appeal against conviction and for leave to appeal against sentence should be refused. I agree.

70    I also agree with the observations by Fitzgerald, JA. concerning the burden placed upon the court when an appeal is conducted in the way in which this has been.

71    I sympathise entirely with Newman, J.'s view that there were asserted "a myriad of unarguable propositions".

72 The applicability of s.18(3) of the Criminal Appeal Act 1912 which provides that in the event of an unarguable or frivolous appeal the court may order that time in custody with special treatment should not count towards sentence, was not raised during the appeal. It is therefore inappropriate that consideration be given to it at this stage. However, this case does raise the prospect that in an appropriate case the court may need to give consideration to hearing argument on whether some such order as s.18(3) provides for should be made (see The Queen v. Costache (CCA, unreported 13 November 1990)).

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