Sinanovic v The Queen

[1998] HCATrans 81

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S175 of 1995

B e t w e e n -

HAKIJA SINANOVIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 1998, AT 10.19 AM

Copyright in the High Court of Australia

MRS M.A. SINANOVIC:   Good morning, your Honours.  I have been granted leave by his Honour Justice Brennan and Justice Callinan on the last occasion to ‑ ‑ ‑

GAUDRON J:   To speak on behalf of your husband’s application.

MRS SINANOVIC:   Yes.

GAUDRON J:   Thank you.

MR G.S. HOSKING, SC:   May it please your Honours, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GAUDRON J:   Yes, Mrs Sinanovic.

MRS SINANOVIC:   On the last occasions, your Honours, I was granted an adjournment on the basis it was a denial of natural justice in relation to an illiterate applicant who is momentarily in custody.  Orders were made to the Crown to make some arrangement for a situation where documentation can be granted access to the applicant and to myself, that legal visits could be arranged so the applicant could have knowledge of what is in the documentation. 

I believe there is an affidavit lodged by the Crown.  I do not oppose the affidavit.  It is correct.  As you can see in the affidavit, there is a lot of difficulty that it has encountered in relation to getting these legal visits and also in relation to the documentation in access to the applicant in custody.  It was through a lot of persistence and eventually legal visits were granted towards the end of - just Friday was the first day.

My submission today is to seek another adjournment on the basis this matter was actually proceeded without the knowledge of the applicant as he was in custody.  Most of the work was done without instructions and without his knowledge.  On the basis of that, it is not that what was presented and filed in this Court ‑ there is not a discrepancy on that, but there is more to be added.  Mr Sinanovic now, for the first time, has had access and knowledge of what has been produced and filed but there is much more that he would like.  This is the only opportunity that he has to argue this case.  It is a longstanding case.  It is a very serious complicated matter and there are more arguments of law that he would like to produce to this Court.

GAUDRON J:   What are those arguments and why can they not be put today?

MRS SINANOVIC:   I would like the opportunity to obtain reference in relation to it.  Prior to me arguing, I would like to have it in writing ‑ ‑ ‑

GAUDRON J:   What are the points of law that you would wish to raise?

MRS SINANOVIC:   It would be an extension of Dietrich.  It would be in relation to the guidelines of the Crown’s prosecution, certain points of argument in relation to that.  There is a denial of natural justice from the beginning of the time that he was charged.  I have to say to your Honours he is illiterate.  He cannot read or write in English.  That, within itself, placed him in a very difficult situation and through the procedures it was a denial of natural justice, even through the Court of Criminal Appeal.  That is where I would like to extend Dietrich.  Dietrich at the moment is only for unrepresentation in the trials.

GAUDRON J:   Why can you not put that argument today?  In fact, it is implicit in the written submissions, anyway.

MRS SINANOVIC:   I wanted to do it in written factor so the Crown could have his opportunity to respond to that.

GAUDRON J:   Do not worry about the Crown.

MRS SINANOVIC:    I guess it is on the basis of fairness, I was going to put it to your Honours, that ‑ ‑ ‑

GAUDRON J:   The Crown does not seek any fairness from this Court.  It has given up.

MR HOSKING:   I would not have put it quite that way, your Honour.

MRS SINANOVIC:   I guess it was ‑ ‑ ‑

GAUDRON J:   The question is why cannot you - is there any unfairness to Mr Sinanovic in your putting the argument today, when the matter has been implicit in the submissions right from the beginning.

MRS SINANOVIC:   I suppose in fairness that I would like to do more research on it.  Why I say this, your Honours, is I am not a legally qualified person.  I have been allocated to assist him.  As you can understand, one who is not legally qualified does not have knowledge ‑ ‑ ‑

GAUDRON J:   What was said to you on the last occasion, however?  What was said to you by Chief Justice Brennan on the last occasion?

MRS SINANOVIC:   His Honour Justice Brennan said that ‑ ‑ ‑

GAUDRON J:   He said the matter would go ahead today, did he not?

MRS SINANOVIC:   Yes, but depending also on what the circumstances were.  He did, I believe, in the transcript - he said irrespective of the application to legal aid but on the basis of what the situation was in regards to access of the documentation.

GAUDRON J:   You have had that.  That has been satisfied.

MRS SINANOVIC:   We have had that, right.  That has been satisfied.  Now, this is the first opportunity that Mr Sinanovic has had access to those documentation.  So he really should be allowed that opportunity to be fairly placed all the documentation and what we had discussed before your Honours in writing, with reference, with me getting copies of parts of documentation, produce it, allow the Crown to respond to it, and then fairly have it heard in the High Court.

GAUDRON J:   I want to know why you cannot put the argument today.

MRS SINANOVIC:   Well, your Honours, I could.  It might be a bit difficult for me, I suppose in all fairness, that I am not legally qualified, so I would have a bit of a hindrance.  I have to not deny Mr Sinanovic justice.  As you can understand, there would be the imbalance of a person in my position against a qualified Crown.

GAUDRON J:   What is your attitude, Mr Hosking?

MR HOSKING:   I oppose the adjournment application, your Honour.

GAUDRON J:   Mrs Sinanovic, the application is opposed.  Chief Justice Brennan told you that the matter would have to go on.  The matter you now wish to argue has been part of the application from day one and the Court wishes you to proceed today.  There will be no adjournment.

MRS SINANOVIC:   Thank you, your Honour.

I start from the beginning, your Honours.  Mr Sinanovic is an illiterate accused.  In 1989 he had not limited knowledge of English but no knowledge of reading and writing and still that situation is today.  He may be a little bit better than what he was back in 1989. 

This is a matter regarding a Bank, the Westpac Bank.  It was a very publicised case.  In fact, it went in the newspapers, it even went overseas.  It was a matter where there were worthless bank notes, according to Westpac, exchanged in the Westpac branches and Mr Sinanovic was charged, firstly, on count one only.  Now, the position that he was in as an illiterate defendant at that time, he was lured to the Westpac Bank just for discussion but found himself arrested.  Now, the denial of natural justice that happened that day, he found himself no interpreter, no legal advice, found himself an interview being done, not being aware of what it even means to say the right to be silent, because in the understanding, in a person that finds himself in that position, if it is not explained and you are not in that position to understand what that means, you can very well be doing the wrong thing.

That is a situation which is based in people that are placed in situations even before the courts.  If they do not have a knowledge, an understanding of what is placed before them, they can very well make errors.  Those errors will contribute and affect the hearings that are going to be going further on up to the trial.

McHUGH J:   What is the error he made?

MRS SINANOVIC:   The error is the not the understanding of the situation.  The statements were done and were admitted in evidence.

McHUGH J:   Yes.

MRS SINANOVIC:   Now, there raises a point.  We were not aware of what the law is about all the court procedures.  You, yourself, cannot bring forth to say there was an error in this.

McHUGH J:   That would apply to almost everybody that is arrested because there would be only a handful of professional criminals or lawyers that would be familiar with the rules of evidence and court procedures.

MRS SINANOVIC:   That is right, but that is not the case in this one.  This is a situation where this is not a professional person that has been through the courts and understands what the situation is.  That would come later.  As you progress the situation through the justice system, you start to understand.  But still you do not have the full knowledge.  As you are going through, if one is to go through years and years of it, one obtains knowledge and one understands and it assists them ‑ ‑ ‑

McHUGH J:   But what has it got to do with this case?  In what way did your husband’s illiteracy contribute to him making some admission that was relied on to convict him?

GAUDRON J:   And where is the error in the trial process in relation to it?

MRS SINANOVIC:   That would be the admissibility of the record of interview.

GAUDRON J:   Was it objected to?

MRS SINANOVIC:   Yes, it was objected to and it was admitted.

GAUDRON J:   What is the error?

MRS SINANOVIC:   The error would be, your Honours, the fact that it was admitted on the basis that the illiterate accused at the time had no knowledge or understanding of that law, had no legal advice, found himself lured to be arrested.

GAUDRON J:   That is not a ground for the rejection of the evidence.

MRS SINANOVIC:   No, but it procedures that results, it affects when you get to the trial.  Subsequently, from then on, it is the procedure where - now I want to argue on the part of the Crown.  There is the imbalance between the Crown and the defendant, and the accused.  You have a Crown who has unlimited funds available to him.  He has time available to him.  Cost is not an issue to the Crown.  But it is an issue to the defendant.  That is where you have your imbalance.  For example ‑ ‑ ‑

GAUDRON J:   That happens in every case.  The law does not guarantee you the same funds as the Crown, naturally.  It guarantees you a fair trial according to law.  You must concentrate on the trial process and say what went wrong in the trial process.

MRS SINANOVIC:   I understand, your Honours, but we cannot dismiss that.  We have to go forward to say if there is not a balance within the trial, the trial is unfair.  I will give you an example.  If the Crown would not have a problem for $2,000 to get a forensic evidence in relation to a document or fingerprinting, but the defendant would be placed in the situation where he could not have $2,000 to defend this matter.  For example, there was in evidence produced in this last trial a photocopy of a day book issued by one of the currency dealers.  Now, just to look at it, one could see there was an alteration done to that photocopy, but it would have assisted the defence to be able to be in a position, both financially, to obtain a forensic evidence to say , “This photocopied document was tampered with.”  It would have assisted him greatly.  Instead, that could not be done.

McHUGH J:   In what way would it have assisted him?  The question in this case was identification.  Your husband maintained that he was unaware that the Greek notes were not legal tender.

MRS SINANOVIC:   That is the other issue.  Where is the evidence that they say that these Greek notes were not legal tender.

McHUGH J:   Evidence was given by bank officials.  If we get down from the high-flown theory to the facts of this case, it is an identity case plus your husband’s explanation that in obtaining this money for these foreign notes he was not aware that they were no longer in legal circulation.  The jury disbelieved him on both accounts and found he was guilty beyond reasonable doubt.

MRS SINANOVIC:   Based on the evidence of Tully.  See, there is also an error of fact in Tully’s evidence.  Tully’s evidence says ‑ ‑ ‑

McHUGH J:   That is not a ground for special leave to appeal.  If there was an error of fact, the jury nevertheless accepted the Crown case beyond reasonable doubt.

MRS SINANOVIC:   Your Honour, you cannot put to the jury an error of fact.

McHUGH J:   Yes, you can.  You put errors of fact every day.  That is what counsel are there for.

MRS SINANOVIC:   Can you put to the jury that on the 30th this person came in to buy notes and yet he used it on the 22nd?  How can that be possible to put to a jury?

McHUGH J:   We are not here to review the facts of the case. 

MRS SINANOVIC:   The other question, then, arises.  He is convicted of this matter.  Yet when he gets to the Court of Criminal Appeal ‑ he lodges an appeal to the Court of Criminal Appeal.  Again he is disadvantaged, one, he is illiterate; he cannot do the matter himself.  Secondly, he does not have the funds to obtain the transcripts, so the submissions are written by memory.  He faces unrepresented in front of the Court of Criminal Appeal.  He requests an adjournment, “I am not in a position to even argue this case on points of law.”  That was denied.  There was no arguments in the Court of Criminal Appeal in relation to this matter and a person in that situation could not have argued this case.  Even on the basis, one, cannot accept that one would not be disadvantaged if they did not even have the transcripts to the trial.

McHUGH J:   The Court of Criminal Appeal had written submissions.  They said that those written submissions, although diffuse, made clear the substance of the appellant’s complaint and that they were that his Honour had erred in declining to order a separate trial in respect of each offence and that the convictions were unsafe and unsatisfactory and, included in that ground were complaints as to the reception of certain evidence and as to his Honour’s directions in his summing up in relating to that evidence.  Now, that was the substance of the complaint and the Court of Criminal Appeal examined them and rejected it.  Where is the special leave point?

MRS SINANOVIC:   The special leave point is your Honours cannot accept that someone who does not have the transcript would be in a fair position to argue ‑ ‑ ‑

GAUDRON J:   But that is not the point.  The point is what is the error in the Court of Appeal?  Let us assume it was badly argued or inadequately argued. 

MRS SINANOVIC:   It is not just a case of badly argued; it is a case of being - it is a denial of justice even not having the transcripts.

GAUDRON J:   Let us for the moment assume a position of disadvantage, of extreme disadvantage.  You still have to point to error in the decision of the Court of Appeal.

MRS SINANOVIC:   The justices of the Court of Criminal Appeal in fairness could not bring down a judgment if not all the correct facts are put to them.  Putting submissions - I understand there were submissions - but submissions based on a memory.  They were not submissions based on transcript and already there you have your unbalance of fairness.  It is like if you have the unbalance of fairness in the trial, it is the same thing whether you have it in the committal, whether you have it in a notice of motion of hearing, and it is the same whether you have it in the Court of Criminal Appeal or you have it in the High Court.  You have that unbalance of fairness.  You have the Crown, who has no problems to get documentation, you do not find the Crown in the situation where he does not have to worry about obtaining moneys to obtain transcripts, he does not have this difficulty even being able to be in a better position, so you have got the unbalance even in the Court of Criminal Appeal.  And that is what fairness is all about.

McHUGH J:   The Court of Criminal Appeal heard the matter on 20 November 1995.  Almost one year earlier written submissions had been filed amounting to five pages of single spaced writing, setting out the various grounds of appeal, referring to various evidence.

GAUDRON J:   And it was not the first time the matter had been in the Court of Appeal, was it?

MRS SINANOVIC:   No, in fact the first matter was quashed.  See, that is the other thing.  I do not have that document and I have asked the Crown to supply it to me.  I have not received it.  Because I would have liked to have that document of the judgment of Justices Handley, Badgery-Parker and Hunt, because it is of significant value in relation to this case because in the first case it says you can not accept the evidence of Allen, so you have to accept the evidence of Tully.  Tully’s evidence said he never sold high denomination notes to the accused.  So what relevance did Tully’s evidence have to even be put to the jury.  First you have it on a date after the event, secondly you do not having him saying he sold high denomination notes, the most 5,000.  That is not even relevant to what was produced in the trial.

So where does the Crown produce in the court that he bought these worthless notes.  Secondly, where is the evidence?  The only people who can give evidence in relation to this case was based on foreign law, Greek law.  Not a person who is a representative, living in this country for 25 years, with no foreign law.  There is nothing produced by the Crown to say in actual law, of the Greek bank, to say these notes were worthless.  In fact there is an error in the submissions of the Crown where it says “Mr Frangos, Chief Representative, Bank of Greece”.  He was not from the Bank of Greece, he was from the National Bank of Greece.  It is a private bank.  They did not even get someone from the Bank of Greece, the government bank, to say and show the court, show the jury, these notes were worthless.  There is nothing there.

McHUGH J:   Do you seriously argue that the notes were legal tender?

MRS SINANOVIC:   Your Honours, there is nothing to show that they were not legal tender.

McHUGH J:   There was evidence that they were not.

MRS SINANOVIC:   Based on a circular that does not even correspond with page 1 to page 2.  You have certain high denomination notes still in circulation, stabilised Drachma, and then after you have other notes that are not stabilised Drachma- what you have what happened in 1945 is not what it is in 1989.  That is what the crucial evidence is.  Unless you can produce it, you have nothing before the courts to say that these were worthless notes.  Only the Greek Government Bank can say it.  That is a very very crucial point.

McHUGH J:   The trial judge took a different view.  So did the Court of Criminal Appeal.  I do not see any error in the evidence that they accepted or that the jury could act on, that these notes were worthless, that they were inflationary World War II money withdrawn from circulation at the end of the war and had ceased to be legal tender and that they were used as part of a scheme to defraud banks in this country.

MRS SINANOVIC:   Your Honour, I know I am running out of time, and I apologise for this.

GAUDRON J:   Certainly answer Justice McHugh.

MRS SINANOVIC:   There was one other thing that I did want to raise.  It was another point.  This was a matter that should never have proceeded through the criminal courts.  Now, I say this because the way this matter happened, this person went into the bank and asked, made an inquiry.  It is just like how Justice Badgery-Parker said in the first appeal.  What if I went down to the bank with a note, I said to them, “Can you exchange this?”  They make all the necessary inquiries, they look up their books and they come back and say, “How would you like it?”  Where is the criminal conduct?  And that is what happened in this case.  He did not go there to force them.  The dates were on the notes.

GAUDRON J:   I think we understand that point and I think that is not strictly an answer to Justice McHugh’s question.

MRS SINANOVIC:   That was my most important part of the argument, that this matter - and also to add the Westpac Bank had never proceeded civilly to recover the moneys in relation to this matter.  So one would assume what position was the Westpac Bank in. 

McHUGH J:   But if the evidence is accepted, the evidence of identification, what you have just said about the nature of what this man did is inaccurate, is it not, because on the evidence, he was told at least after the first occasion, by a teller, that the notes were no longer legal tender and could not be converted and yet, on the evidence, the scheme continued on.  The man, whoever he was, went to other banks, other branches.

MRS SINANOVIC:   That is a very crucial point, your Honour, because I would like to add one thing.  In relation to identification, when you are in a position like I was saying, the balance of costs, there was no subpoenas

done in this case.  Subpoenas could have been done to subpoena the photographic evidence in the Bank of 4 April.  That would have assisted the defence very much.  This is what I am saying.  If you are placed in that disadvantaged situation because you cannot afford to do subpoenas because you do not have enough funding to do this, see the difficulty that places.  You wind up being found guilty because you could not be in a position to do that.  There could have been subpoenas done for the film on 4 April.  It would have assisted the defence to show did the defence go in there and change the cheque like he said he did.  That would have assisted and it would have allowed that opportunity for the jury to see that.  There could have been subpoenas done in relation to the computer banking of those entires that went through.  Did they go through exactly on 4 April, like they are saying that they did.

It is very easy to say, Mr Sinanovic, we got you for the first count.  We are going to get you for all the others.  Three attempts.  We have no notes.  You must understand there is no evidence of notes.  And Mr Sinanovic - these offences happened on 4 April.  Mr Sinanovic was taken and arrested on 12 April.  These tellers said they made the “bandit” description from on the day of the offence.  When he is charged, there is nothing put to the accused that these other offences in fact took place.

Now, he was taken into custody twice, the 12th and the 17th.  He is only made knowledge of these offences when the committal comes.  He is never formally charged on them.  So one would have to say, “Who is actually telling the truth there?”  Why is the teller saying on the day the offence took place we did the “bandit” description form.

GAUDRON J:   They are matters that I daresay were put to the jury at first instance, but I think your time has now expired, Mrs Sinanovic.

MRS SINANOVIC:   Thank you, your Honour.

GAUDRON J:   Thank you.  The Court does not need to trouble you, Mr Hosking.

We are of the view that there is no error in the judgment of the Court of Criminal Appeal and, moreover, that there has been no miscarriage of justice in this case.  Accordingly, special leave is refused.

AT 10.46 AM THE MATTER WAS CONCLUDED