Sinanovic v The Queen

Case [1998] HCA 40

HIGH COURT OF AUSTRALIA

KIRBY J

HAKIJA SINANOVIC  APPLICANT

AND

THE QUEEN  RESPONDENT

Sinanovic v The Queen (S175-1995) [1998] HCA 40
Date of Order:  2 June 1998
Date of Publication of Reasons:  11 June 1998

ORDER

Motion dismissed.

Ex parte application for leave to issue process

Representation:

Maria Sinanovic (by leave) for the applicant

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Sinanovic v The Queen

Practice and procedure - High Court - Applications for leave of a Justice to issue process - Motion to set aside decision refusing special leave to appeal - Motion by prisoner without legal representation - Wife permitted to speak on prisoner's behalf - Prisoner claims difficulties in Court of Criminal Appeal and High Court by reason of being unrepresented, non English speaking and illiterate - Provision made for supply by Crown of trial transcript - Motion refused as having no prospect of success.

International law - Human rights - Right to equality before courts - International Covenant on Civil and Political Rights, Art 14.1 - Whether breached by failure to provide legal representation to illiterate prisoner with difficulties of communication - Decision that no substance in ground of appeal - Relevance of unincorporated international law for Australian domestic law - Motion to re-open special leave hearing refused.

Criminal law - Appeal - Legal representation - Whether right to legal counsel at public expense - Prisoner claims severe difficulties of communication - Whether proceedings should have been adjourned - Applicability to appeals against conviction of Dietrich v The Queen (1992) 177 CLR 292.

High Court Rules, O 58 r 4(3).

  1. KIRBY J.   It is an admirable thing for a wife to speak up for a husband who is in custody.  Indeed, it is admirable for any friend to do so.  Courts must listen when prisoners, by proper process, bring their complaints before them.  They must never allow weariness born of many hopeless proceedings nor the pressure of heavy lists of cases, professionally presented, to dull their vigilance against the possibility that an unrepresented prisoner's complaint may have merit[1].  Courts remain the ultimate protector of everyone in society, including prisoners who have no lawyers to speak for them.

    [1]     cf Coppedge v United States 369 US 438 at 447-449 (1962); Hussainara Khatoon v State of Bihar AIR 1979 SC 1369 at 1376.

  2. Now, before me, is a motion by Mrs Maria Sinanovic, the wife of a prisoner, Hakija Sinanovic.  He is not in court.  In the course of making her submissions, Mrs Sinanovic told me that she felt a great responsibility on her shoulders.  She said that she was trying to put the application on behalf of her husband as he would do, were he here.  She wished not to disadvantage him nor to deny him justice.  I accept that she feels that responsibility keenly.  She has made every endeavour to discharge it.

    History of the proceedings

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Details
AGLC
Sinanovic v The Queen [1998] HCA 40
Case
[1998] HCA 40
Decision Date

CaseChat Overview and Summary

This matter came before Kirby J of the High Court of Australia concerning a motion by Hakija Sinanovic, a prisoner without legal representation, to set aside a decision refusing him special leave to appeal. Mr Sinanovic, who is illiterate and a non-English speaker, claimed to have experienced difficulties in both the Court of Criminal Appeal and the High Court due to his lack of legal representation and communication barriers. His wife was permitted to speak on his behalf during the proceedings.

The legal issues before the Court included whether the failure to provide legal representation to an illiterate prisoner with communication difficulties breached the right to equality before the courts under Article 14.1 of the International Covenant on Civil and Political Rights, and whether this, or any other ground, provided a basis for setting aside the earlier decision refusing special leave to appeal. The Court was also required to consider the applicability of the principles established in *Dietrich v The Queen* to appeals against conviction and the relevance of unincorporated international law to Australian domestic law.

Kirby J reasoned that the international law cited by Mrs Sinanovic did not provide a basis for setting aside the decision refusing special leave. His Honour explained that the use of international law in Australian domestic law is indirect and subtle, and not as straightforward as a lay person might assume. Consequently, the Court found no substance in the grounds of appeal, concluding that there was no prospect of success in reconsidering the special leave application.

Accordingly, the application for leave to issue the proposed notice of motion was refused. Kirby J directed that a copy of the transcript and his reasons be sent to Mr Sinanovic and his wife. The motion was dismissed.

Orders

Orders of the court

Motion dismissed.

Ex parte application for leave to issue process

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIRBY J
On that footing, there is nothing in the international law to which Mrs Sinanovic has referred which would give a foothold for a new ground to set aside the decision of the Justices who disposed of the special leave application on 13 March 1998. It is understandable, perhaps, for a lay person to think that international law, being at a higher plane, overrides Australian domestic law to the extent of inconsistency: just as State law may override a local government law or, federal law, if valid, may override State law. However, the position is not as simple as that for reasons which I endeavoured to explain in Thorpe v The Commonwealth [No 3][8]. The use that may be made of international law in Australian domestic law is much more indirect, subtle and controversial. It does not avail Mr Sinanovic in this case.[8](1997) 71 ALJR 767 at 779; 144 ALR 677 at 693.Conclusion and order Accordingly, as to the challenge to the substance of the Court's disposal of the application for special leave on 13 March 1998, no ground has been shown which would give any basis for hope that a reconsideration of the matter would be successful. That being the case, no foundation has been demonstrated that would authorise me to grant leave for the issue of the proposed notice of motion. The application for such leave is therefore refused. I should add, in closing, that the matter has proceeded today ex parte, in the absence of the Crown. That, apparently, is the procedure that is contemplated by the Rules. In many cases, it will be appropriate for such applications to be dealt with in private chambers on the papers. However, for the reasons which I have stated, I have heard the application in open court and have permitted Mrs Sinanovic to say what she wished to say in support of the application on behalf of the prisoner. I will direct that a copy of the transcript and of these reasons be sent to the applicant, Hakija Sinanovic, at the Junee Correctional Centre, and to his wife who represented him. The order of the Court is that the application for leave to issue the notice of motion is refused.

Ratio Decidendi

Legal Principle Established

Established by: KIRBY J

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