Regina v Sinanovic

[1999] NSWCCA 216

CITATION:	Regina v Sinanovic [1999] NSWCCA 216
FILE NUMBER(S):	CCA 60460/98; 60575/98; 60819/98; 60150/99
HEARING DATE(S):	19 May 1999
JUDGMENT DATE:	19 May 1999
PARTIES :	Regina v Hakija Sinanovic
JUDGMENT OF:	Levine J at 35,36 & 38; Greg James J at 37; Smart AJ at 1-34

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0597
LOWER COURT JUDICIAL OFFICER:	Shillington DCJ, Blanch DCCJ, Graham DCJ, Mahoney DCJ

COUNSEL:	S G Sexton QC for the Crown
SOLICITORS:	Applicant in person. S E O'Connor for the Crown.
CATCHWORDS:	Criminal Law; Stay of proceedings - access in goal to assistance.
ACTS CITED:	-Nil-
CASES CITED:	-Nil-
DECISION:	Application dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60460/98
60575/98
60819/98
60150/99

DAVID LEVINE J
GREG JAMES J
SMART AJ

WEDNESDAY 19 MAY 1999

REGINA v HAKIJA SINANOVIC
JUDGMENT

1 SMART AJ: Hakija Sinanovic has applied for leave to appeal against interlocutory orders made by Shillington DCJ on 21 August 1998, Blanch DCCJ on 18 September 1998, Graham DCJ on 10 December 1998 and Mahoney DCJ on 1 April 1999.
2 In 1998 the applicant stood charged on two indictments, each containing two counts. One indictment charged that he on 14 July 1995 dishonestly obtained for himself a valuable thing, namely, a cheque for $7000 by deception by representing that Brazilian cruzeiros were the current legal tender of Brazil and as such were able to be exchanged for other currencies.
3 The second count alleged that between 13 July 1995 and 18 July 1995 the applicant dishonestly obtained a cheque for $1000 and a cheque for $4000 by deception by a representation to the same effect.
4 The other indictment alleged that on 11 December 1995 the applicant dishonestly obtained a diamond ring by deception by representing that he would that day deposit into the bank account of Stefano Designer Jewellery Pty Limited a cheque for $27,000.
5 The applicant was charged in the alternative that between 11 December 1995 and 12 January 1996 being the bailee of a diamond ring, the property of Stefano Designer Jewellery Pty Limited, did fraudulently convert that property to his own use.
6 The applicant stood trial on the latter indictment relating to the diamond ring commencing in January 1999 and was convicted. An appeal against conviction and sentence is pending.
7 The trial on the other indictment, which was to follow, was not reached. That trial is now listed to begin on 21 June 1999.
8 Mrs Sinanovic, who has appeared in this Court to urge the case on behalf of the appellant, has furnished a detailed chronology. Her approach was to suggest that there had been an abuse of process from an early stage beginning with the refusal of a magistrate to require a witness to attend to give oral evidence pursuant to s.48E of the Justices Acts, 1902. That abuse, she contends, was continued on 5 September 1997 when Shillington DCJ proceeded with the indictment of her husband, notwithstanding that there was pending before the Administrative Law Division of this Court, a challenge to the Magistrate's ruling. This point lacks substance.
9 Mrs Sinanovic has traced the history of the matter so far as she regards it as relevant to these proceedings. She has submitted that nobody has stopped the abuse of process. She has also emphasised that she has a comprehensive knowledge of all her husband's matters, and that no one else has such knowledge.
10 It was apparent from the lengthy submissions which she has addressed to this Court that her knowledge of her husband's matters, including what he might wish to put in defence and what could be put in defence, is extensive.
11 Mrs Sinanovic has complained that the prosecuting authorities have not complied with various recommendations made by judges of the District Court. She has further complained that the access granted to her by the Corrective Services Department, not by way of contact visits but by way of legal visits to her husband in gaol, has been unduly and unfairly restricted to such an extent that the applicant has been deprived of the opportunity of putting his case fully and fairly. She has stressed the course taken by Brennan CJ in the High Court and Hunt CJ at CL in this Court, in making strong recommendations as to the granting of legal access. Those senior judges were concerned that the applicant should not be disadvantaged by the failure to be able to put his case fully and that there were substantial reasons why he needed the assistance of his wife.
12 Those reasons include, amongst other things, not only her comprehensive knowledge, but also his stated inability to read and write English so that he is in considerable difficulty responding to requests for written instructions. It would also deprive him of the opportunity of going through the necessary documents in matters which are quite wide ranging.
13 Whilst Mrs Sinanovic has dealt with the history of the matter at length, what I have summarised is sufficient for the purposes of the applications before this Court. It is appropriate to turn to the four applications that are made to this Court for leave to appeal.
14 On 21 August 1998 Shillington DCJ dismissed an application seeking an order that the applicant remain in custody in Sydney on the basis that the Court had no power to direct where the applicant should be held in custody. The applicant was then due to stand trial on 2 November 1998 and wanted to remain in Sydney to prepare for that trial. He asserted that he needed a place where he could work effectively and consult with his wife. The applicant told the judge that he could not read and write and required the assistance of his wife to go through all the papers. The applicant's solicitor, who happened to be present in court, but not appearing for the applicant on that occasion, told the Court that the applicant was not happy with the proposed arrangements for communicating his instructions to her. The applicant and his wife regarded the charges as involving matters of some complexity.
15 The Crown has informed this Court that the applicant has remained in custody in Sydney from 4 June 1998 to date. The applicant and his wife recall him being sent to and from Junee on a number of occasions and were unable to confirm that date. But as I understood it from them, since at least Christmas 1998 he has been in custody in Sydney. The probabilities are that the departmental records are correct and that, despite talk of moving the applicant to Junee, he has not in fact been moved there from Sydney since June 1998.
16 Neither the District Court nor this Court has power to direct where a person is to be held, or to control the legal access which is to be granted to him.
17 On 18 September 1998 Blanch DCCJ dismissed for the same reason a second application.
18 A trial date of 2 November 1998 was vacated and the trials were scheduled to commence on 4 January 1999. On 10 December 1998 Graham DCJ dismissed an application that the applicant's trials scheduled to commence on 4 January 1999 be stayed as an abuse of process. It was intended that the two trials be run sequentially.
19 The application came before Graham DCJ on 20 November 1998 when the judge spent some time listening to the applicant and his wife and endeavouring to sort the matter out. On 10 December 1998 Graham DCJ spent considerable time hearing the application. The transcript extends over 34 pages and there was documentary material which required and received the judge's attention. The judge delivered a judgment of eight pages.
20 The applicant's recorded submissions were quite lengthy. Graham DCJ gave careful consideration to the matters raised, including some documents being unavailable. The judge thought, correctly, that none of the problems which were raised, either alone or in combination, warranted the granting of a stay. He gave directions as to the provision of documents to the applicant.
21 In late March 1999, after the applicant had been sentenced on the diamond ring offence, application was made by the applicant to "move the Court to a hearing in respect of (1) Abuse of human rights and (2) Abuse of process."
22 On that application, which was heard on 1 April, 1999 Mr Sinanovic appeared for himself. We have been told that he had no affidavit in support, and that Judge Mahoney declined to allow him to give oral evidence. It seems that the applicant had been told that he was about to be moved to Junee and that at the hearing attention was directed to the applicant being kept in Sydney until his trial commenced on the currency matters on 21 June 1999. The Department of Corrective Services was proposing to move the applicant to Junee on 24 April 1999.
23 It seems that the applicant told the judge he wanted to be able to remain in Sydney so he could have many visits from his wife so she could read to him the multitude of documents to be considered in preparing for his trial. The judge found it hard to accept that the applicant was unable to read and understand what had been written in English. The judge noted that in the past six months the applicant had had 51 legal visitations. Mr Sinanovic gave an explanation about these to this Court. The judge thought that the period from 1 to 24 April gave the applicant's solicitors adequate time to consult with him at Long Bay or Silverwater. The judge ruled that the allegations of abuse of human rights and an abuse of process, involved an over statement of the position. No stay was granted.
24 In this Court complaint was made as to the judge's refusal to allow the applicant to give oral evidence and his alleged failure to listen fully to the claim of abuse of process. The applications filed have not necessarily been couched in terms in respect of which legal relief could be given. It was not made clear in the motion filed before Mahoney DCJ that a stay was being sought.
25 In the written submissions of Mrs Sinanovic, the grounds of appeal have been stated or summarised thus: " Abuse of process, equality and discrimination; common law right not to be tried unfairly; adequate time and facilities to prepare; denial of natural justice."
26 The applicant's wife asserts on his behalf that he is presently in custody as a result of wrongly being found guilty of a number of offences by gross miscarriages of justice. He has appealed against all convictions. She has complained that the trial listed to start on 4 January 1999, and actually starting on 6 January 1999, was forced on in circumstances where the applicant had insufficient knowledge of the Crown brief, and his case had not been thoroughly prepared.
27 As the trial on the diamond ring matters has been concluded, it is not appropriate, or indeed open to this Court, to make any orders in relation to that matter on these applications. The background that I have narrated only bears upon the forthcoming trial.
28 In her written submissions the applicant's wife has summarised the matters upon which she relies, thus:

"1. He is in custody.

2. His place of classification is Junee Correctional Centre.

3. All his matters are in Sydney.

4. He cannot read or write in English.

5. He has been denied his common right to time and facilities to prepare for his trial and other court matters, including appeals.

6. His position before the Court is crippled.

7. He is discriminated and faces prejudice because of his handicap (cannot read or write English).

8. He is refused to be listened to (bias from certain judicial officers).

9. He faces courts not having any knowledge of contents of documentation thus denying his 'natural justice'.

10. All his court procedures have been 'abuses of process'.

11. He has been refused legal access to Mrs M A Sinanovic who has been legally assisting and representing the appellant and has knowledge of the fine details of all the appellant's court matters.

12. The DPP always fails to comply with the rules and orders in respect of producing all relevant documentation with proper adequate notice to the appellant in respect of his trials."
29 Mrs Sinanovic has elaborated upon those submissions in oral argument relevant to the forthcoming trial. She has asserted that her right to legal access was terminated on the transfer of her husband to the MMTC Long Bay complex shortly after September 1998. Since that date she has only had contact visits. Two contact visits a week are allowed and papers and documents may not be taken on those contact visits. If she has legal access, then an area having some privacy is provided, as well as a table and chairs, and she and her husband can work through and prepare for the forthcoming trial.
30 Mrs Sinanovic has also complained about any move to Junee. On 14 May 1999, in a further application to the District Court, Woods DCJ noted:

"1. Accused should be kept in custody in Sydney pending trial on 21 June 1999 so legal preparation for his defence may proceed. If the preparation of his case is made impractical the trial date may be jeopardised.

2. Solicitors and counsel are properly briefed at the trial. They are the persons who should confer with him.

3. It is likely that if the accused changes solicitors or counsel he would lose legal aid. If this occurred it should not be a basis for adjournment of the trial."
31 I should also have recorded that there was an application heard before Armitage DCJ on 30 April 1999.
32 It is important that the applicant's wife have legal visits to the applicant and I would experience disquiet if that did not happen. It may lead to the trial on 21 June 1999 not proceeding. This is not a case in which the applicant should be restricted to contact with his legal advisers. We were reminded of the practicalities of legal aid and that only a very limited number of conferences are allowed in the sense that only a limited number are paid for. This would seem to be a case where the conferences needed might be extensive, and there is substance in the view that to obtain a fair trial, that is one in which the applicant's case is thoroughly and fully prepared, his wife needs to have legal access.
33 I do not think that this Court should accede to the request to treat these applications as applications to this Court for a stay of the proceedings. For my part I think that leave to appeal should be refused in respect of each of the applications. However, if the applicant is not able to prepare sufficiently thoroughly for his trial, and I doubt that he can do that without the assistance of his wife, then an adjournment would have to be granted and, if the refusal of access persists, it may be that the District Court would have to entertain an application for a stay.
34 The formal order which I would propose in each matter is that leave to appeal be refused. More important are the comments which have been made as to the future conduct in respect of the forthcoming trial.
35 LEVINE J : I agree with the orders proposed by Smart AJ and with his comments as to the further conduct of this matter.
36 I, for myself, add that it could hardly be necessary to state that it is desirable in everyone's and every institution's interest that finality be reached in proceedings involving the applicant. It also should be remarked that nothing should imperil the fair trial listed to be heard by anything failed to be done by authorities or, indeed, anything done or failed to be done by those who represent the interests of the applicant.
37 GREG JAMES J : I agree with the orders proposed. I agree with the reasons given by Smart AJ. I endorse the comments and adopt them. I adopt the comments also of Levine J presiding. I would emphasise that it is in the community's interests that this trial be permitted to proceed without impediment.
38 LEVINE J : The orders of the Court will therefore be as proposed by Smart AJ.
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