Salameh v The Queen

[1993] HCATrans 332

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S99 of 1993

B e t w e e n -

IMAD SALAMEH

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
GAUDRON J

McHUGH J

Salameh 1 27/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 27 OCTOBER 1993, AT 3.13 PM

Copyright in the High Court of Australia

MS J.L. SAUNDERS:  I appear for the applicant, if the Court

pleases.	(instructed by Peters Crompton
Worrall)

MR R.O. BLANCH, QC:  May it please the Court, I appear for

the Crown with my learned friend, MR R. KELEMAN,

for the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales))

DEANE J: Yes, Ms Saunders.

MS SAUNDERS:  I have prepared a summary of argument to

assist the Court. If I might hand those up,

Your Honours.

DEANE J: Yes, Ms Saunders.

MS SAUNDERS:  Your Honour, this is a matter that is raising

the basic issue of whether there is an estoppel to

be obtained in a criminal matter against the Crown,

and within that there is a number of smaller heads

that I would like to address. The first of those

is the question of agency, and that is whether

Inspector Small, who made the undertakings to the applicant was, in fact, in a position to make those undertakings, and whether the applicant should have

been, or could have been, able to rely on the fact

that he had the authority to give those

undertakings.

GAUDRON J: That, itself, raises the question whether you

can call them undertakings, does it not?

MS SAUNDERS: Yes, Your Honour, it is the submission of the

applicant that these were undertakings. The

applicant was never told that the indemnity would

be refused on any grounds and, in fact, although

Inspector Small gave evidence at the trial that the

indemnity had been withdrawn, in fact, the

applicant had never been advised that the indemnity

had been withdrawn, and he relied on that entirely

until - - -

GAUDRON J: There was no indemnity granted, was there?

MS SAUNDERS:  The applicant believed that there had been an

indemnity granted, and that is the basis of this

case.

McHUGH J: But that would not make it an estoppel, would it,

simply because he believed that an indemnity had

been granted? Do you not have another difficulty

about this being a suitable vehicle for testing

these points that the Court of Criminal Appeal has

Salameh SAUNDERS 27/10/93

found, as a fact, at the bottom of page 10 that

there was -

no unqualified promise or representation ever

made -

and that they were -

conditional upon future events.

MS SAUNDERS: Well, in fact, Your Honour, that finding of

the Court of Criminal Appeal, in fact, is not as the applicant would put the case. The applicant

would say that, in fact, he provided the

information to Inspector Small in relation to very

serious criminal matters on which the Crown then

relied, and he believed at all times that he was

going to be indemnified against the lesser matter.

McHUGH J:  I understand how you put it, but it would mean

that we would have to make a finding of fact

reversing the Court of Criminal Appeal before we
reach these issues which you seek to litigate, and

does not that make this an unsuitable vehicle?

MS SAUNDERS: Except that, Your Honour, it raises the whole

question of whether the Crown can be in a position

of making undertakings to persons who will then

rely on those undertakings in very serious matters

which, I submit, this is one - - -

McHUGH J: But if that finding stands at the bottom of

page 10, there is no special leave point, and there

is no prospect of you succeeding on an appeal, is

there?

MS SAUNDERS:  The evidence of the applicant would be that

the finding of the Court of Criminal Appeal was, in

fact, not correct, and that although Detective

Inspector Small and his evidence said there was no unqualified promise or representation ever made that is contrary, in fact, to the situation that did exist, and that the applicant was never told that it was an -

unqualified promise or representation.

He was told that Inspector Small would see to it

that the matters were not proceeded with, and he

gave the information to Inspector Small about the

murders in reliance of that representation.	He did
not at any point ever know, according to our

submission, that it was a qualified representation,

Your Honour, and that is what we would be relying

on, that the Court of Criminal Appeal were wrong in

that finding of fact.

Salameh	3	27/10/93
MCHUGH J: Yes, I am sorry.

DEANE J: But, where would it all lead to though, in that

the appeal to the Court of Criminal Appeal was

solely an appeal against sentence, as I understand

it? '

MS SAUNDERS:  Yes, Your Honour.

DEANE J: Well now, where would an argument of estoppel lead

on, in this case, in an appeal against sentence?

MS SAUNDERS:  Your Honour, in my submission it would lie in

the matter being returned to the Court of Criminal

Appeal for consideration of the fact that this
matter, perhaps, should have been dealt with

originally in the early stages by an application

for a stay on the basis of abuse of process and,

regrettably, that did not happen for reasons that I

do not know. Given that that did not take place
before the trial, we would say that the fact that
the prosecuting authorities brought the
indictments having promised the applicant that they

would not, the breach of the duty of the Crown was

fundamental in that we would say they were estopped

from being able to bring that prosecution at all,

and that on sentence there should have been a

greater discount based on that injustice.

DEANE J: Well, there was some discount.

MS SAUNDERS:	Yes, there was, Your Honour.
DEANE J:	I can understand your saying there should be a

greater discount but, apart from that, I have

trouble seeing how one deals with the estoppel

argument in an appeal against sentence.

MS SAUNDERS:  It is the applicant's case that the matter

should not have been brought to the prosecution at

all. It should not have been prosecuted. It

should have ended before prosecution, and that

should have been done in another way, but as it was

not, and the matter has now proceeded to sentence

and then to review of that sentence, the applicant

seeks to have that matter reviewed by this Court.

McHUGH J: What order would you seek in your notice of

appeal if this ground was upheld?	What would be
the order?

MS SAUNDERS:  That the matter be remitted to the Court of

Criminal Appeal.

McHUGH J:  To do what?

Salameh SAUNDERS 27/10/93

MS SAUNDERS: For the Court of Criminal Appeal to

consider - it would have to be an appeal on

conviction.

McHUGH J: But we could not do that, could we, because the

Court of Criminal Appeal has never had any such

issue before?

MS SAUNDERS:  Yes, Your Honour. It is my submission that it

is within the jurisdiction of this Court to

consider the general area in relation to this

matter, and that it would be permissible to remit

it to the Court of Criminal Appeal on that basis.

McHUGH J:  We are bombarding you from all sides,

Ms Saunders.

MS SAUNDERS: Yes, I am well aware of that.

McHUGH J:	You just advance the argument as you would like to advance it.
MS SAUNDERS:	Thank you, Your Honour. Within the question of whether the Crown is estopped at all, then
raises the other issues of the question of
voluntariness, the question of the voluntariness of the information that the applicant gave to the
police in relation to the other matters upon which
he informed.  The whole question of estoppel is
relating to the Crown in criminal matters, the
prejudice to the applicant in the running of his
trial which came six and a half years after the
date of arrest, and the general question of
abuse of process that arises from the Crown having brought the indictment four years after arrest.

Is there any particular part of that which

Your Honours would wish me to elaborate on? I have

a feeling that I may have lost Your Honours at an

earlier point, and I do not know whether - - -

McHUGH J:  I think we are always open to persuasion, and add

to which you should never think that the High Court

cannot be persuaded, Ms Saunders.

MS SAUNDERS: If I could take Your Honours to exhibit Bin

the application book, the evidence of Inspector

Small, on page 8 at point 15, under

cross-examination by the Crown, the Crown

Prosecutor says to Inspector Small:

Q. I suggest to you inspector that without

prior approval it was somewhat of an

inducement which was beyond your authority?

and Inspector Small says:

Salameh 27/10/93

A. It was something that I could never have

accomplished, but it would only be a matter of

advising others.

The applicant submits that, in fact, that was not

the understanding the applicant had and there is

reference in the application book to a conference

that was held between Inspector Small and the

applicant's legal advisers, that is exhibit D, in

which undertakings were given that this matter
would not be further prosecuted. There was never

any suggestion that Inspector Small did not have

the authority which he purported to have at that
time and, in fact, it was only after the matter was

resurrected, as it were, that the applicant and his

legal advisers knew that there had been no

indemnity signed by the Attorney-General in

relation to this.

On the question of voluntariness, the

applicant gave the information in relation to a

number of murders and other matters which have not

been detailed here.

GAUDRON J:  Ms Saunders, did your client have legal

representation at this conference?

MS SAUNDERS: Yes, in fact, he was not present, but the

persons present were the applicant's counsel and

his solicitor.	The applicant himself was not
present.

GAUDRON J:  One imagines that they would understand that

there would be no authority in Inspector Small to

effect what it is that you now say was the

undertaking.

MS SAUNDERS: Yes, Your Honour, I appreciate that point.

However, I would say that given that nobody ever

got back to the applicant or his legal advisers to

inform them that the indemnity had not been

provided as it was promised led everybody involved

to believe that the indemnity had been provided,

and that Inspector Small had taken it upon himself

to see that that would be done and, in the absence

of any information to the contrary, everybody

believed it had been done.

GAUDRON J: But, what I am putting to you Ms Saunders is

that apart from gross dereliction of duty,

everybody at that conference would understand that

Inspector Small was in no position to give an undertaking, or to do anything to bring about the

situation that you claim was brought about.

MS SAUNDERS:  I cannot speak for the people who were

present whether they did understand that or not,

Salameh 6 SAUNDERS 27/10/93

but that certainly has remained the understanding

of the people present, and certainly the applicant

that - - -

DEANE J: Except, if you look at Mr Worrall's letter at

page 22 line 31, it is clear enough, I think, as he

puts it elsewhere, that there was a gentleman's understanding but it was quite clear that there

would be no formal indemnity.

MS SAUNDERS:  Yes, Your Honour, I see that on that page.

DEANE J: It is there, as he puts it, "a gentleman's

agreement" .

MS SAUNDERS:  Yes, I-see that. But given that that was the

situation, then immediately the applicant then gave Inspector Small the information that he required on

very serious matters. So there can be no doubt

that the applicant relied on what he thought was an

undertaking by the Crown to indemnify him.

DEANE J:	By Inspector Small.
MS SAUNDERS:	Yes, Inspector Small.

DEANE J: But the problem here is that if, in a context

where it is known that there can be no formal

indemnity, a member of the police force could, as

it were, estop the Crown from bringing criminal

proceedings, you would have a very strange

situation. In other words, you would have a member

of the police force able to control the proceedings

in the courts by giving an assurance that he was

unable to give effect to.

MS SAUNDERS: Yes, that really is the crux of this whole

case, but the applicant says that that is a

situation, that a police officer did give an

undertaking upon which he, the applicant, relied, only to find out quite some years later that what the undertaking had purported to do did not, in

That is the whole gist of this case really: is the	fact, come about, and that he had relied on it.
Crown estopped by the actions of its agents, or by
people who purport to be its agents, even if they do not, in fact, have the authority to act? Certainly section 13 of the Criminal Procedure Act
says that the Attorney-General has the power to
grant an indemnity, and there is certainly no doubt
about that.

But in this case, we submit that a police

officer purported to exercise that discretion - and

that is what we are asking for review of, in that

the Crown be estopped from resiling from that

undertaking by its agent, or a person who purported

Salameh 7 27/10/93

to be its agent and that is the crux of this case,

that we relied on that to our detriment.

It raises further the question of

voluntariness. Certainly not voluntariness in the

sense of confessions about our own wrong doing, but

voluntariness about materials to which we were

privy. The material that is referred to in the

application book refers to a murder. There are, in

fact, a number of murders and other very serious

matters and in the course of informing to the

police on these murders, the applicant's brother

was informed on by the applicant. So these were

very serious matters which he gave only in return

for what he thought was an indemnity. He certainly

relied on that very much to his detriment. He is

in the special protection unit at Goulburn prison and suffers under threats for his life constantly.

He has obviously relied very much to his detriment

on the promise made by Inspector Small in this

case.

I would submit that the question of

voluntariness of the information that he gave to

the police has to be considered in the light of the

inducements that were offered to him. He says he

would never have given the information had he not

been under the impression that he was going to be

indemnified for what were comparatively to the

murder charges, that is, relatively minor criminal

charges.

McHUGH J: It is a question of procedure to a large extent.

I would have thought that your complaint should have been that the proceedings against him should
have been stayed in some way because they were an

abuse of process. Now, why that course was not

taken is a matter for speculation. It may be that
to do so would have required him to reveal

publicly the part he had played in falling on

various people, which was something he did not

want. But there being no application to stay the

proceedings, it just seems to me that these matters
have really got nothing to do with the question of
sentence, and that is the only matter that has been

before the courts, and is before us.

MS SAUNDERS:	Yes, Your Honour.
McHUGH J:	You cannot make a silk purse out of a sow's ear,

I suppose, and you only have the materials you have

in front of you, but that seems to me to be one of

your difficulties on this application.

MS SAUNDERS:  On the question of the abuse of process, we

would submit that where there is evidence of

improper motives by the Crown that that matter

Salameh SAUNDERS 27/10/93

should be considered. In this case, the applicant

would say that there were improper motives on the

part of the police who did bring the proceedings

four years later. He resurrected the proceedings

four years later, and the applicant is seeking

review of the exercise of that discretion by the

Crown, saying that it was the use of discretionary

power for improper purposes, and there would be

evidence educed on appeal in relation to that

matter.

This is not a case where there could have been

a direction to a jury or evidence refused admission

to cure any problem. This is a case where the

injustice went to the root of the proceedings

themselves and, in our submission, the proceedings

were wrongly brought.

McHUGH J: But having been brought you have passed the abuse

stage and you are now in a different area of

discourse, and the case is all about sentence.

MS SAUNDERS:  Yes, Your Honour. I have nothing further.

DEANE J: Thank you, Ms Saunders. Yes, Mr Blanch.

MR BLANCH:  The matter as the Court has observed has

proceeded on the basis of an application for leave

to appeal against sentence to the Court of Criminal

Appeal, and the Court of Criminal Appeal has dealt

with it on that basis.

DEANE J: There is a most disturbing undercurrent in this

case, though, really, is there not? Somebody on

a witness protection scheme, and in gaol in these

circumstances in the face of what was a clear

enough understanding.

MR BLANCH: Well, Your Honour, a clear understanding only in

the sense that the police could give such an

understanding.	Your Honours have seen the relevant
pages of the transcript and my friend has referred
to them.	It is quite clear from that that the

police have spoken in terms, qualified terms, about

what might happen.

DEANE J: But if it had just stopped there, one would not

have the uneasy feeling that one gets in the light

of the subsequent delay of, what was it, three

years, after that understanding in which anyone
would really think that the understanding was being

carried into effect.

MR BLANCH:  Except that Your Honour will see that there was

correspondence in 1991 about the committal

proceedings and a letter - - -

Salameh	9	27/10/93
DEANE J:	How long was that after the understanding?	I am

using that as a fairly neutral word?

MR BLANCH:  Yes, I understand what Your Honour is saying.

On page 6 the question was:

Q. Did you have a conversation with the

prisoner back on 26 January 1987?

DEANE J: Well, you see, that is at least three years. The

assurance is given, and then four years are allowed

to pass.

MR BLANCH:  Yes, there are four years.

DEANE J: It leaves one with a feeling that whatever our

powers might be, there is something that should be

looked at very carefully by someone here.

MR BLANCH:  Yes, that may well be, Your Honour. I do not

know in the circumstances of this case why that

took so long. In other cases what sometimes occurs

is that investigative agencies put out feelers for

information being in possession of material

themselves. They then carry out their

investigations without furthering either the

prosecution or the seeking of an indemnity, but do

that at some later stage.

GAUDRON J: Except that in this case, Mr Blanch, it seems to

be the case that the charge had been laid, and it

just lay dormant in the magistrate's court, or in

the local court in Tamworth. It sort of leaves a

feeling that the courts are being ill-used.

MCHUGH J:  I must say what I find disturbing is the letter

from the applicant's solicitor to the magistrate

which apparently the Crown is a party to.

Information is given to the magistrate, then he is

asked to keep it in a sealed envelope on a court

file.

MR BLANCH: Except, Your Honour, that the Crown is not a

party to it. Your Honour will see the next letter

is a letter from the Crown saying, "We are not

going to agree to this. We are going to oppose

this application for an adjournment."

MCHUGH J: Yes, I see that.

MR BLANCH:  I hope that the situation that has changed in

New South Wales since that time, is that since the office of the DPP has taken over the prosecution of

committal proceedings, these matters go straight

into the hands of that office, rather than staying
in the hands of the police because at this time

when police were prosecuting cases it was possible

Salameh 10 27/10/93

for the matter to sit dormant for a period of time
without anybody knowing about it. That is just not

possible now - I hope.

DEANE J: Thank you, Mr Blanch. Ms Saunders have you

anything you want to say in reply?

MS SAUNDERS:	No, thank you, Your Honour.
DEANE J:	The Court considers that an appeal in this case

would necessarily fail. Accordingly, the

application for special leave to appeal is refused.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE

Salameh 11 27/10/93