Sinanovic, Application by

[2001] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S73 of 2001

In the matter of –

An application by HAKIJA SINANOVIC for leave to issue a proceeding

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 MAY 2001, AT 2.34 PM

Copyright in the High Court of Australia

MRS M.A. SINANOVIC:   Your Honour, I am seeking leave of the Court to represent the applicant.

MR S.C. KAVANAGH:   If your Honour please, although the Crown is not a party to this application, I seek leave to appear for the purpose of assisting the Court, if that becomes necessary.  (of New South Wales Director of Public Prosecutions Office)

HIS HONOUR:   Thank you for coming today.  Yes, Mrs Sinanovic.  Mrs Sinanovic, normally applications of this kind are dealt with only on the papers.

MRS SINANOVIC:    Yes.

HIS HONOUR:   However, because your husband is in custody and you are seeking an order that affects his liberty, I have taken the course of listing the matter today.

MRS SINANOVIC:    Thank you, your Honour.

HIS HONOUR:   However, I intend to maintain you to the time limit which is normal to a special leave application.  There is no reason why you should have more time on a motion of this kind than you would have if you were before the Court again on a special leave application.  So you will have no more than 20 minutes and I would ask you to address yourself in such a way that you can complete your submissions in that time or shorter, because normally these matters are simply dealt with on the papers.

MRS SINANOVIC:    Yes, thank you, your Honour.  I was unaware that it was a 20‑minute hearing.

HIS HONOUR:   Well, I am sorry, that is as much as you will be given.

MRS SINANOVIC:    May I seek – if I do go a bit over, may I seek the leave the Court.

HIS HONOUR:   You will have 20 minutes.  You will have a warning at 15 minutes and I take it that you are reading the affidavits which you have filed in this matter, so that they are formally before the Court.

MRS SINANOVIC:    Yes, your Honour.

HIS HONOUR:   Could you just identify those for the record.

MRS SINANOVIC:    The first affidavit is the affidavit in support of the notice of motion, which is filed in the High Court on 12 April 2001, sworn by me on the 12th day of April 2001.

HIS HONOUR:   Yes.

MRS SINANOVIC:    And that is together with the ex parte application for leave and then yesterday there was filed an affidavit – a further affidavit, my affidavit, sworn on the 17th day of May 2001.

HIS HONOUR:   Yes, thank you.

MRS SINANOVIC:    And I rely on those two affidavits.

HIS HONOUR:   I have read those affidavits.  Yes.

MRS SINANOVIC:    Your Honour, may I ‑ ‑ ‑

HIS HONOUR:   I should say that I have also read the reasons that were given by Justice Gummow on behalf of himself and Justice Callinan in dismissing the application which was brought by your husband against the order of the Court of Criminal Appeal which ordered that your husband should be retried on the matter in respect of which that court, the Court of Criminal Appeal, had allowed his appeal from the sentence entered by Judge Stewart following his conviction by a jury.

MRS SINANOVIC:   It actually was a decision based on conviction and sentence, not just on sentence alone.

HIS HONOUR:   Yes.

MRS SINANOVIC:    I have to commence, your Honour, by putting on objection the difficulty it would be to argue this case, one, based on the transcript that you do have available before you, and the reasons for that is there are four pages missing out of the transcript, thus making it very difficult to proceed with this matter.

HIS HONOUR:   Yes, but you have to understand that the Court has heard an application.  The application was itself unusual in that your husband had succeeded before the Court of Criminal Appeal.  The application was, therefore, confined only to challenging the order which the Court of Criminal Appeal had made in relation to whether there should be a retrial ‑ ‑ ‑

MRS SINANOVIC:    That is correct.

HIS HONOUR:   ‑ ‑ ‑ and the retrial was ordered, on the face of things, apparently normally, because of the fact that the Court of Criminal Appeal held that there was evidence to sustain the conviction.  Normally, in those circumstances, a court does not usurp the function that belongs to the Executive Government, that the Crown, or the Director of Public Prosecutions, and then it is left to the Director of Public Prosecutions whether to proceed with the trial.  The court simply orders that the new trial be had.  So that you are already running uphill appealing against an order in a successful appeal seeking that this Court intervene only to substitute an order of acquittal or an order for a stay and that the Court hearing the application said it would not do.  So we cannot just go back to square one.  It is a very unusual thing for the Court to reopen a dismissal of an application for special leave to appeal.  Just imagine what chaos there would be if everybody could come along and could seek reopening.

MRS SINANOVIC:    I agree with your Honour.  You are totally right and I do agree with you and we do have an obligation to the public that these occurrences should not really occur and the reason for that application in the High Court was – was actually in the public interest to not allow retrials when there is no evidence before the court, as was directed by the Court of Criminal Appeal to say there was ample evidence before the court that would bring in a conviction.

It is the duty, and the moral duty, of the DPP to address these matters and once it has been brought by a party, which in this case it has been the applicant, to consider the position to try and evaluate – to assist the courts to not try to clog them up with matters that should be dealt with then and there when it should have been dealt with in the Court of Criminal Appeal and was not, went to the High Court and also the High Court did not.  Now, what the process now is, we have got another trial that has been commenced.  We have got ‑ ‑ ‑

HIS HONOUR:   The matter, I was told earlier in the week – and I assume there is no objection to my sitting in this matter, having heard the earlier application earlier this week – I was told that there was a trial proceeding as from Monday.

MRS SINANOVIC:    Yes.

HIS HONOUR:   I take it that that trial is the trial in relation to the order which the Court of Criminal Appeal made ‑ ‑ ‑

MRS SINANOVIC:    Yes.

HIS HONOUR:   ‑ ‑ ‑ which is challenged in these proceedings.

MRS SINANOVIC:    That is correct, your Honour.

HIS HONOUR:   Yes.

MRS SINANOVIC:    And I believe your Honour sat on the bail application which ‑ ‑ ‑

HIS HONOUR:   That is right, yes.

MRS SINANOVIC:   ‑ ‑ ‑ was in reference to the trial into this matter.

HIS HONOUR:   Yes.  I was told by Mr Terracini ‑ ‑ ‑

MRS SINANOVIC:    Yes.

HIS HONOUR:   ‑ ‑ ‑ that there was a trial proceeding, even as we were proceeding, and that – I did not really understand at the time what that trial was about, but I now understand that arose out of the order for a retrial made by the Court of Criminal Appeal.

MRS SINANOVIC:    Yes, yes.  Your Honour is quite correct.  It is unusual to challenge when one has got a conviction set aside with a new trial ordered, but in this case, this is a case where on the evidence itself that was before the Court of Criminal Appeal did not constitute a retrial because the evidence itself that was very clear constituted a civil matter and not a criminal matter.  It is the role of the courts to not make it an open day for the Crown to say, “Right.  Well, you got it wrong the first time.  Go back and see if you can change it.”  Because here is a matter where we have to take public interest.

As the publics we are living in a democracy where the publics are paying for these courts and we have a duty to ensure that we do not abuse the process, hence the reason for the leave to appeal to the High Court.  On the evidence itself did not constitute a retrial.  There was not ample evidence and the difficulty that we find in the High Court, especially in an unrepresented applicant, more care should be made in the area of law, firstly, by the Crown and, secondly, by the judges, to ensure that we do not abuse the process.

We are not here to say, “Well, I’ll ignore that.  We’ll send him back and they will spend more moneys and we’ll try and do it a bit different because we’re interested in getting convictions.”  It is not the way it works, your Honour, and this is exactly what has happened in this case.  What is also supported in the last affidavit that I have filed, if your Honour has said that you have read that affidavit ‑ ‑ ‑

HIS HONOUR:   Yes.

MRS SINANOVIC:   ‑ ‑ ‑ the last one.

HIS HONOUR:   Yes.

MRS SINANOVIC:    Going through the points of that affidavit, what has the High Court, when they made that decision, has sent the applicant back to a new trial.  First, his – the applicant was informed that the Crown would enter a no bill.  He finds himself therefore unrepresented.  Now, the chronology in the abuse of process, it is not the duty of the courts to allow this to occur but, in fact, it is occurring.  What is going on now at this very moment, the process of what the applicant has had to endure is he finds himself retrialled on evidence that he should have been fully acquitted; he seeks to have an adjournment so he could be in a proper position to prepare his trial; finds himself that is immediately refused.

Now, there were notices of motion prior.  Those – both notices of motions were appealed section 5F.  He finds himself before the trial judge, another application refused, not even two weeks adjournment to allow him to be in a position to prepare for trial.  He – they go one step further.  He is forced on unrepresented.  He puts the points of his disadvantage.  It is then appealed.  He finds himself unrepresented before the Court of Criminal Appeal.  He is not assisted by me and I have been denied access to even inform him of procedure.  He already had an unfair hearing in the Court of Criminal Appeal for interlocutory.

Then we go one step further.  He cannot appeal against Luland’s decision, which would be in time to stop this prejudicial trial, because he was unaware he had to do the procedure to seek leave.  Now, what is happening now before the courts is Mr Sinanovic cannot prepare for a trial; the question on expert evidence, of running the case exactly like they did before; the question on law was raised before the High Court in expert evidence remained unchallenged by the Crown and yet he is going to be forced back to do the whole same thing again and, your Honour, what are we going to do?  Go through these courts until one day someone is going to listen and say, “We should not be doing this”?

HIS HONOUR:   Who is the trial judge in the retrial?

MRS SINANOVIC:    Luland.  Now, I have found myself, your Honour – I even sought leave if I could have five minutes discussion with Mr Sinanovic before I appear here and I have to put this on the record.  That has been taken away.  I have had two letters that allowed me to present that I have legal access to him in the prison.  That has not been returned.  The abuse of ‑ ‑ ‑

HIS HONOUR:   Well, that is not relevant to the matter that you have before me.  You are seeking leave to file process and the only thing we have to concentrate on is whether that most exceptional leave should be given, having regard to the fact that you had your chance to argue these matters; it was heard before two Justices of the Court in the normal way and reasons were given as to why it was refused.  And I have to tell you that it is – I sat on the Court of Criminal Appeal for many years and it is extremely rare for the court, where there is evidence, to – not to order a retrial because that province belongs to the Executive Government; it does not belong to the courts and it is left to the Executive Government to decide whether or not to proceed with a retrial in the circumstances.

MRS SINANOVIC:    But the order was made from the judicial trial – from the judicial power was made.  I do agree it is the executive power that makes the agreement to prosecute but it is the duty of the courts that must address all the evidence before them and if they have erred in that, then what are they doing?  They are assisting to the executive to say, “Go ahead and retrial him again, notwithstanding with what the evidence I can see before him doesn’t constitute a retrial.”

It was very clear – one could not be more clear than to address the indictment and address the evidence, the evidence that was presented as factual evidence did not support the elements of the indictment and no one until today has been able to get out from the DPP’s office and say, “I have to inform the court the applicant is wrong.”  There is more than enough evidence through notices of motion; it has gone through Court of Criminal Appeal; it has gone through this High Court; it has gone back to notices of motion and still we have not got someone from the DPP to get up and inform the court and say, “We are wrong.”

We have been brought back to start the process again more prejudicial than what we had in the first trial, different evidence.  Your Honour, this is a man who has been subjected without any understanding of what his position is.  I am very much aware that if you commit the crime, you are charged with it, you have your day in court, you must be prosecuted fairly, have a fair trial to get a right conviction or a proper acquittal.  That is what the law is, but this has not applied here.

My presence before the Court in the special leave application, as it has been put in my affidavit.  I did not even get my 20 minutes.  I was not treated with such respect as – because I am – I am aware QCs appear in this Court.  It is not a Court that mainly the lay people do appear.

HIS HONOUR:   You have five minutes.

MRS SINANOVIC:    Your Honour ‑ ‑ ‑

HIS HONOUR:   As far as I am concerned, you will be treated with respect and you will be listened to.  You are the wife of a person who is in custody.  You are entitled to speak to me about it, but you have to focus your attention on the very peculiar motion that you bring before the Court ‑ ‑ ‑

MRS SINANOVIC:    Your Honour ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ which must be peculiar, because everybody came along, or even if a few people came along, and asked to have a second go, the burden on the Court would be even greater than it is.

MRS SINANOVIC:    Your Honour, it is not a question of a second go.  We are asking that it was done properly from the beginning.

HIS HONOUR:   Well, as far as I can see in the transcript of the proceedings before two Justices of the Court it was done entirely regularly and reasons ‑ ‑ ‑

MRS SINANOVIC:    Your Honour, the transcript is ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ were given as to why the matter should be dismissed.

MRS SINANOVIC:    Well, the transcript is not complete.  Your Honour has no reference to what areas of law was raised in the transcript because you do not have it before you.

HIS HONOUR:   I have the transcript before the High Court.

MRS SINANOVIC:    Already we are disadvantaged.  Yes, before the High Court.  There are five – four pages missing.  I am aware what your Honour has pointed out to me, but where is this a fair hearing, even for your Honour to know exactly what was said, what has been omitted.  There is your – your Honour to say yourself, “Well, what is in those pages that may assist the applicant in these proceedings?”.

HIS HONOUR:   There are no pages missing.  There are eight pages and I have the eight pages.

MRS SINANOVIC:    I have page 4, page 6, page 8 ‑ ‑ ‑

HIS HONOUR:   Well, somebody has obviously copied the back page of pages.

MRS SINANOVIC:   ‑ ‑ ‑ missing out of my transcript.

HIS HONOUR:   Well, I have all pages and I have had regard to them.

MRS SINANOVIC:    Well, your Honour, I am facing before this Court with only ‑ ‑ ‑

HIS HONOUR:   Do you have – do you have page 8?  You seem to have the even numbers.

MRS SINANOVIC:    I do not have page 8.

HIS HONOUR:   Page 8 has the reasons of the Court.

MRS SINANOVIC:    I do not even have the reasons, no.

HIS HONOUR:   Where did you get what you have?

MRS SINANOVIC:    From the Registry.

HIS HONOUR:   Hand Mrs Sinanovic the transcript.

MRS SINANOVIC:    Even if your Honour looks at the transcript, I was interrupted most times when I was speaking, as you can very well see.

HIS HONOUR:   That is not unusual.  That happens to QCs as well.

MRS SINANOVIC:    With all due respect to your Honour, I do not – not as much as what it happens to me.

HIS HONOUR:   Well, it is interchange between the Court.  Because we only have a short time we want to focus whoever is making the submission on the matters that are relevant to the decision.

MRS SINANOVIC:    Your Honour, I may have to just put this:  the reasons why these proceedings have been brought because Mr Sinanovic has not had the law and justice applied right from the beginning and it is very clear, the processes of what – there is ample evidence now that the way Mr Sinanovic has been treated before the courts has been an abuse of human rights.  He is entitled under democracy to a fair trial ‑ ‑ ‑

HIS HONOUR:   This is not relevant to the question of whether I should give you leave to file process to reopen a special leave application that has been heard and concluded.

MRS SINANOVIC:    The reasons are, your Honour, that the law was not addressed by the High Court before Gummow and Callinan.  There are the reasons.  The law was ignored and on the ‑ ‑ ‑

HIS HONOUR:   Well, on the face of the transcript it does not appear to be ignored and the only law that you have addressed to me is general statements about human rights.  That is not really going to be very helpful.

MRS SINANOVIC:    There is the question on law and expert evidence.  That was never addressed by the High Court.  If it remained – the question on law is this.  The way it works there is the respondent, there is the applicant.  We put the arguments.  We put the questions.  The respondent must argue and challenge.  In the absence of them arguing and challenge, they accept what the applicant said.  This applies to this case.  That was before the High Court.

Now, the High Court made a decision in the absence of the challenge of the respondent, therefore, one question raises, “How did the High Court reach that decision?  Did they reach that decision” ‑ ‑ ‑

HIS HONOUR:   The High Court had your submissions and it had the Crown’s submissions and all of those matters, in the processes of the Court, are carefully read and considered before the hearing.  So it had all of that material before it, considered it and gave reasons as to why the application was dismissed.  Now, do you have any submission as to any fact that was overlooked or legal principle that was overlooked that is a reason why process should now be permitted?

MRS SINANOVIC:    Yes.  Well, for one – one that does come to mind is the expert evidence, remained unchallenged by the Crown.  The question that the matter presented in the form presented was in a civil jurisdiction, not a criminal jurisdiction, remained unchallenged by the Crown.  Now, that already in itself, the High Court had to address when they were confronted the question that this was a matter that should not be prosecuted in a criminal jurisdiction.  There was no challenge by the respondent so, therefore, the High Court now has to consider have they made a decision outside their jurisdiction, thus making the decision invalid, because bearing in mind, your Honour, when we argue these cases first and foremost we must be in the correct jurisdiction.

In the absence of the Crown submitting even on paper that it is not a matter of a civil jurisdiction, the High Court is in error to say, “I have made a decision to dismiss it.”

HIS HONOUR:   Yes.  Your time is up, Mrs Sinanovic.  Will you hand back the transcript of the argument?

MRS SINANOVIC:    May I have a copy of this, your Honour, made available?

HIS HONOUR:   Yes, I will have that copied and provided to you.  Mr Kavanagh, though you have leave and though you have kindly come today, it is not really necessary for you to be before the Court.  Is there any factual matter that you would like to correct on what Mrs Sinanovic has said or not?

MR KAVANAGH:   Only one issue, if I may, your Honour.  Although it is not strictly relevant to the application that is before the Court, Mrs Sinanovic said that the – asserted that the Crown had indicated that the trial would not go ahead, in other words, that the Crown would be entering ‑ ‑ ‑

HIS HONOUR:   I think there is something to that effect in the affidavit.

MR KAVANAGH:   There is.  That statement is vigorously contested, your Honour.

HIS HONOUR:   Disputed, I see.

MR KAVANAGH:   Yes.

HIS HONOUR:   And, in fact, the proof of the pudding is that the proceeding is going ahead even as we speak.

MR KAVANAGH:   Exactly, yes, yes.  So that is the only issue that I wished to raise.

HIS HONOUR:   This is the second time in a week that Hakija Sinanovic (the applicant) has been before this Court.  However, the proceedings today are only distantly connected with the proceedings that were before me earlier.  They involved an application for bail in relation to a special leave hearing yet to be heard by the Court.  The applicant was represented on that occasion by counsel.  He is presently in custody serving a sentence of imprisonment.  Today he has not been legally represented.  However, I have allowed his wife to speak for him, having been satisfied that she does so with his knowledge and authority and upon his instructions.

Application to reopen a special leave application

The present application is for leave to issue proceedings in the Court.  Under Order 58 rule 4(3) of the High Court Rules, a Justice of the Court, after considering the process filed on behalf of the applicant, directed the Registrar to refuse to issue the process without leave of a Justice first being obtained.  Pursuant to that order the applicant has sought such leave.  The application for that purpose was referred to me.  The Court is empowered to deal with such applications on the papers and commonly that is what occurs.  However, because the applicant is in custody, seeks to challenge a judgment upon which his custody depends, is unrepresented and, according to the affidavit, illiterate and indigent and relies on his wife to advance his application, it seemed appropriate to allow the matter to be argued.  However, it was subject to time limits similar to those observed on a special leave hearing.  (cf Order 69A rule 9 High Court Rules)

Although the application could have proceeded in the absence of the prosecution, I directed that the Director of Public Prosecutions be advised of it, in case he should wish to be present.  A representative of the Director’s office attended to assist the Court.  His assistance, except upon one matter, has not proved necessary.

The trial, conviction and appeal of the applicant

On 24 September 1997, in the District Court of New South Wales, the applicant was convicted of fraudulent misappropriation contrary to section 178A of the Crimes Act 1900 (NSW). The conviction followed a trial before a jury which lasted two weeks. The jury found the applicant guilty of the charge. The applicant was unrepresented at the trial. He was duly sentenced by the trial judge, Acting Judge Stewart. On 3 November 1997 the applicant appealed against his conviction and sentence to the Court of Criminal Appeal of New South Wales. That court, comprising Wood CJ at CL, and Hulme and Greg James JJ, heard the appeal and on 11 December 2000, by majority, allowed the appeal against conviction.

The court ordered that the conviction entered by Acting Judge Stewart be set aside and that a retrial be had on the charge in the indictment.  The applicant then applied to this Court for special leave to appeal against the order of the Court of Criminal Appeal.  The applicant contended either that an order of acquittal should have been entered or that the Court of Criminal Appeal ought to have ordered a permanent stay of the further prosecution of the applicant.

The application for special leave to appeal came before the Court on 10 April 2001.  The Court was then constituted by Gummow and Callinan JJ.  Their Honours permitted Mrs Sinanovic to appear on behalf of the applicant.  They refused special leave and dismissed the application.  The applicant now wishes to reopen that application for special leave and to argue the application afresh.  A motion for that purpose to allow the Registrar to receive the process was filed in this Court on 12 April 2001.  It is that application which is now before me.

Principles governing reopening

In the nature of applications of this kind they usually proceed, as this one did, with the applicant unrepresented by a lawyer and with little or no participation by an opposing party who could act as contradictor.  Accordingly, it is not possible to explore at any length the applicable principles.  Nevertheless the following represent some of those which I accept as affecting the decision I am asked to make:

1.        A decision on a special leave application is not res judicata

as between the parties, equivalent to a judgment that finally decides a legal dispute between them.  The application is in the nature of an interlocutory proceeding by which a party seeks to engage the jurisdiction of this Court:  cf Cooper v Williams [1963] 2 QB 567 at 580, 582. As a general rule, interlocutory orders may be varied or set aside in appropriate circumstances where the interests of justice so require: Mullins v Howell (1879) 11 Ch D 763, 766; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 452; Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 at 134. At the stage of the special leave application, it has been said, the appellate jurisdiction of this Court has not been engaged, simply a process by which a party seeks to persuade the Court to enter upon that jurisdiction. I shall assume that this is a valid distinction, compatible with the Constitution: cf Eastman v The Queen (2000) 74 ALJR 915 at 943-944 [165], [168], 946 [182], 951 [207]; 172 ALR 39 at 76-77, 80, 87.

2.        This Court has the power to reopen an application for special

leave. Quite apart from its general powers as the final appellate court of Australia, the Court’s power to reopen a special leave decision lies in the inherent or implied jurisdiction of the Court derived from the Constitution and from the Judiciary Act 1903 (Cth): cf Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 322; De L v Director‑General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 at 215. Obviously, unexplained delay or other fault on the part of those seeking reopening would be a discretionary reason for refusing to entertain the request: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; De L v Director‑General Department of Community Services [No 2] (1997) 190 CLR 207 at 215.

3.        The law puts a high store on finality of legal proceedings,

including in this Court.  This is because such proceedings are inconvenient and expensive to the parties affected, costly in terms of public resources and also vexing to all parties concerned:  Queensland v J.L. Holdings Pty Ltd (1997) 189 CLR 146 at 171. Therefore, although the reopening of a special leave application is possible, it is extremely rare for reasons that are self‑evident. Having given attention to the issues between the parties, the Justices of this Court should not, except in the most extraordinary circumstances, return to the matter. The parties and their lawyers must expect to put in writing, and if they so elect orally, all that they wish to put in support of, or in opposition to, the application when it is first before the Court. The Court has its own internal procedures to ensure that applications are thoroughly considered before and at the hearing. Apart from everything else, the growing number of special leave applications makes it undesirable, and practically impossible, to impose on the Court a burden of multiple hearings of the same matter.

4.        The only basis for ordering the reopening of a special leave

hearing would, in my opinion, be where it is affirmatively shown that exceptional circumstances exist that require a reopening to prevent a serious miscarriage of justice because an error of fact or law has occurred in the earlier determination of the application, which error demands correction.

5.        An error of fact will not involve the discovery of fresh

evidence that was not tendered at the trial or received in the intermediate appellate court.  By the authority of this Court such fresh evidence, even if it were to show a grave factual error or punishment of an innocent person, cannot be received by this Court exercising its appellate jurisdiction:  see Mickelberg v The Queen (1989) 167 CLR 259 at 271, 274, 297‑298. A good instance of the discovery of such fresh evidence recently arose in the Court of Appeal of Queensland: see Reg v Button [2001] QCA 133; noted (2000) 26 Alternative LJ 97.  There DNA evidence, discovered after a trial and before the hearing of the appeal in that court, conclusively demonstrated that the prisoner was innocent.  However, if such evidence were discovered between the hearing in the State or Territory appellate court and this Court, by the authority of Mickelberg, it could not be received.  The prisoner would be bereft of protection by the Judicature.  He or she would be compelled to seek relief from the Executive.  I expressed my disagreement with this principle in Eastman v The Queen (2000) 74 ALJR 915 at 965 [273]; 172 ALR 39 at 106. However, it represents the repeated holding of this Court. Although evidence can be received at a special leave hearing (for example, to show the significance of a case for other cases) it will not be received as fresh evidence relating to the subject of the proceedings because to receive it would be futile having regard to the fact that it could not be used in the appeal.

6.        If some oversight or error of law has occurred, the Court

could, in exceptional circumstances, be persuaded to reopen an adverse special leave decision.  The rule in Dietrich v The Queen (1992) 177 CLR 292, as presently expressed, applies only to the trial of serious criminal offences. It does not apply to appeals. On this footing, it is not unusual, at the stage of special leave to appeal, for prisoners to be unrepresented before this Court. In such cases where the hearing is sometimes conducted on the papers, a significant point of law, or a change in the law, could easily be overlooked. If that could be shown, this Court might, exceptionally, reopen the special leave hearing and order that process be received by the Registrar for that purpose. Clearly relevant to the decision would be the way in which, if at all, the suggested error was pertinent to the grounds for special leave mentioned in the Judiciary Act, s 35A.

Reopening is not justified

In this case, none of the foregoing grounds for the exceptional and extraordinary order sought has been shown to apply.  At the hearing on 10 April 2001 Gummow J, expressing the reasons of the Court, said:

The applicant seeks special leave to appeal against orders of the Court of Criminal Appeal of New South Wales quashing a conviction for an offence of dishonesty and ordering a new trial of it and adjusting the totality of terms of imprisonment imposed with respect to that offence and others of which the applicant was convicted.  The applicant’s appeal to the Court of Criminal Appeal succeeded substantially on grounds of misdirection.  That court was of the opinion, and we agree, that there was admissible evidence available to sustain a conviction by a properly‑instructed jury.

Accordingly, it was appropriate for the Court of Criminal Appeal not to enter an acquittal and that it order that there be a new trial.  It was also necessary and right for the Court of Criminal Appeal to adjust the totality of the sentence imposed on the applicant on the quashing of the conviction the subject of this application.  Accordingly, the application for special leave is refused.

The foregoing reasons were given at the end of a full hearing which consumed the entire time available to the applicant.  It followed consideration by the Court of the written submissions of both parties, which were detailed and substantial.  In the Court of Criminal Appeal Greg James J, with whom Wood CJ at CL agreed, said that although the conviction had to be set aside, it was “plainly sufficiently supported by the evidence and there is no matter that would render a new trial inappropriate nor is there such other ground of appeal as might necessitate acquittal”.

It follows that the points which the applicant wishes to reargue were canvassed before the Court of Criminal Appeal and in this Court when it heard the special leave application.  The applicant contends that, in the earlier hearings, a mistaken assessment was reached both by the Court of Criminal Appeal and by this Court.  However, the point which the applicant sought to make, and would make if a further special leave hearing were permitted, was well and truly argued before this Court in the special leave application.  If the foundations for the point raised still have any merit, they might give rise to remedies at the retrial of the applicant.  I was informed that such retrial is proceeding at this very time before Judge Luland of the District Court of New South Wales.

Ordinarily, where a Court of Criminal Appeal sets aside a conviction on appeal, if there is evidence upon which a conviction could be reached, it orders a retrial.  It is then left to the Executive Government, acting through the Director of Public Prosecutions, to decide whether that retrial should be had.  That is normally the proper delineation between the respective functions of the courts and the Executive Government:  cf DPP (SA) v B (1998) 194 CLR 566 at 579 [21]. It is what has occurred in this case. Notwithstanding the repeated efforts of the applicant and his wife it is an order which was justified by the evidence. It will not be disturbed by this Court.

Order

For these reasons, the application for leave to file new process is refused.

Thank you for your assistance, Mrs Sinanovic.

MRS SINANOVIC:   Yes, thank you, your Honour.  I may just have to say in your judgment you said the date 2001, 11 December 2001.  It is 2000, not 2001.

HIS HONOUR:   That was which date?

MRS SINANOVIC:    For the judgment.

HIS HONOUR:   Of the Court of Criminal Appeal?

MRS SINANOVIC:   Yes.

HIS HONOUR:   I will have that corrected.

MRS SINANOVIC:    Your Honour said 2001 instead of 2000.

HIS HONOUR:   Thank you for bringing that to my notice.  I will correct the transcript.

MRS SINANOVIC:   Yes, thank you, your Honour.

MR KAVANAGH:   Your Honour mentioned a moment ago that Judge Luland is conducting a trial with jury.  In fact, it is a judge only trial.

HIS HONOUR:   I see.  Thank you for that.  I will delete that from the transcript too. The Court will now adjourn.

AT 3.13 PM THE MATTER WAS CONCLUDED