Sinanovic v The Queen

[1998] HCATrans 41

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

BRENNAN CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 12.07 PM

Copyright in the High Court of Australia

BRENNAN CJ:   You are Mrs Sinanovic?

MRS M.A. SINANOVIC:   Yes.  I am seeking leave to the Court if I may appear on behalf of Mr Sinanovic who is in custody.

MR G.S. HOSKING, SC:   May it please the Court, I appear for the respondent, with my learned friend, MR A.M. BLACKMORE.  (instructed by the Office of the Director of Public Prosecutions (New South Wales))

BRENNAN CJ:   We will give you leave to appear for Mr Sinanovic.

MRS SINANOVIC:   Thank you, your Honour.  Before the Court there is a notice of motion.  It is a notice of motion to seek an adjournment in relation to this High Court matter on the basis of there is appeal decision pending to the Legal Aid Review as an application was lodged in relation to this matter.  That decision was refused and I have lodged an appeal to that decision to the Legal Aid Review.

Secondly, in the event that that legal aid decision is dismissed, there is a problem that has arisen in respect of the appellant.  It is a course of events that the appellant has been denied natural justice in not being granted access to his legal documents, not being made aware of what has been going on in process of this matter and subsequently it is affecting all his other matters.  So that is what the notice of motion is, on the basis of those two.

BRENNAN CJ:   Mrs Sinanovic, could you explain what you mean by your husband not being able to get access to his documents?

MRS SINANOVIC:   Yes.  Mr Sinanovic is illiterate.  He cannot read and write in English.  He is not a native of this country and is not even a citizen of this country.  He is subsequently now in custody.  He was in custody in 1996.  He entered custody on 9 February 1996.  That was due to he lost a case that went - it proceeded on 1 December 1995.  That was followed after the Court of Criminal Appeal in - - -

BRENNAN CJ:   Just tell us about how he has not been able to get his documents.

MRS SINANOVIC:   Right.  The Corrective Services have prevented me -allowing me to enter into the correctional centre with legal documents.  The reasons they are saying is because of the due high risk.  He is in a maximum security gaol and there is the difficulty if they do not allow anything to go through in the visiting areas.  As you can very well understand they do have problems with the drugs.  I have been told that drugs have even been planted on paperwork, and due to that fact no paperwork is ever allowed in the visiting area.  So, my visits are only contact visits.  I have not been granted access.  I have written to the Assistant Commissioner, Mr Woodham, advising under special circumstances could there be some arrangement that Mr Sinanovic, in a position that he is, could at least have access to prepare for his cases.  That was denied.     They only said to me legal practitioners only have that right, and it is a right that the correctional centres grant to the legal practitioners.

So, in the subsequent of all this Mr Sinanovic has resulted in doing a whole sentence before his Court of Criminal Appeal could be heard.  I have brought this to the attention of his Honour Justice Hunt in two letters, bringing the concerns about this.  Subsequently, Mr Sinanovic, just prior to his release date, two weeks prior was charged again.  He winded up being refused bail and we had to go to the Supreme Court and subsequently bail was granted.

He also had a stay in proceedings in his District Court matters.  I do not know if your Honours have read the affidavit but it does show in the affidavit that Mr Sinanovic has also been denied natural justice in relation to his legal aid applications.

BRENNAN CJ:   Now, just before you get on to the legal aid part, what are the documents which you wish to show to your husband?

MRS SINANOVIC:   The whole appeal matter in relation to this High Court matter.  At the moment the notice of motion is in relation to this High Court matter.  He has not had access to the Crown submissions in response.  He is not aware of what is in those submissions.  Most of the submissions that I had put in and prepared, he has not been made aware of those and, subsequently, he has not been fully informed in relation to this matter.

BRENNAN CJ:   Is this the situation, that in a maximum security prison legal advisers are allowed access with the necessary documents to the prisoners.

MRS SINANOVIC:   That is correct.

BRENNAN CJ:   That those who are unrepresented do not have access to their documents?

MRS SINANOVIC:   That is correct.

BRENNAN CJ:   Is that so, Mr Hosking?

MR HOSKING:   I am sorry to say, your Honour, I really do not know.  I was previously unaware, until recently, that Mr Sinanovic is said not to have access to those documents.  I am sorry, I cannot answer that question.

CALLINAN J:   Your husband does not read or write English, you say?

MRS SINANOVIC:   That is right.  He does require someone to be with him and to read the documents and, obviously, in an unrepresented accused in reading and writing and in giving instructions on what has to be put down on paper, he would require the assistance.

CALLINAN J:   You do not, obviously, have any trouble with English yourself, Mrs Sinanovic.

MRS SINANOVIC:   No, I do not.  In fact, I have been doing all his work for him but the majority of most of my work has been done without instructions and that also is affecting - as you very well can understand.  I am not legally qualified.

CALLINAN J:   If you would just tell me:  what would you need to get from him, bearing in mind that he is going to be heavily dependent upon you anyway, obviously?

MRS SINANOVIC:   I think, in all fairness, if I was to do this matter - bearing in mind I am not legally qualified - so what I put down on paper, I think in all fairness, not to deny Mr Sinanovic justice, at least that he is made aware - prior to any hearing that he is aware what is in these documents as a matter of natural justice, that he knows what is before the courts before it is heard.  As one could very well understand, he is sitting in custody, he is unable to do it himself, he relies on assistance and he cannot be punished because he is illiterate, so he is a special circumstances, as you can very well understand.  The difficulty is in being illiterate and not understanding or reading and writing the English language.

Although I can say, your Honours, is a lot of effort has been put to try and get the correctional centre to understand this type of situation.  There has been warrants in relation to other matters where there have been recommendations done by District Court judges and as you can see in the affidavit I attached to that warrant where his Honour had put:

It is recommended that the prisoner be kept in protective custody and the prisoner's wife be permitted to make legal visits to him so as not to disadvantage him.

Not only in this matter which the District Court judge was made aware this was pending but in relation to his Court of Criminal Appeals, in relation to his Local Court and another pending District Court.  Subsequently, Mr Sinanovic has found himself in a very, very disadvantaged situation.

Now, the corrective centres are not being very co-operative with the court system.

BRENNAN CJ:   I think we understand this problem now, Mrs Sinanovic.  The Court is minded to grant you an adjournment until the next sitting of the Court in Sydney but on a particular basis, that is ‑ we will have to hear, first of all from Mr Hosking as to what he is going to say.  But what we have in mind, Mr Hosking, is that some inquiries should be made to discover whether it is the fact that unrepresented accused who are seeking special leave to this Court cannot, in the maximum security gaols, get access to the necessary documents.  I mean, if that is so, it seems to be a very unsatisfactory state of affairs.

MR HOSKING:   It does seem surprising, your Honour.  We will make inquiries.

MRS SINANOVIC:   Bearing in mind it is through the visiting areas.  I am emphasising this, your Honours, this is on the basis that an unrepresented accused, illiterate, who is not granted access to his legal documents and the only option available at the moment is through contact visits.  That is for a person who is not a legal practitioner. 

BRENNAN CJ:   Yes, we understand that.

MRS SINANOVIC:   The only contact I have with Mr Sinanovic is through the contact visits and that is impossible when it comes to documentation.  As you can imagine this situation and what has been happening in the correctional centres, they are becoming very strict and not allowing anything to go through.

BRENNAN CJ:   One could understand that policy very clearly, Mrs Sinanovic.  The question of whether some arrangement can be made to ensure that, on the one hand, appropriate security is maintained in the maximum security centres and, on the other, that those who have a right to apply to the courts can do so meaningfully is no doubt a problem of great difficulty but it is one that, I think, this Court would need to be satisfied about before proceeding in a case where it appears an applicant has no knowledge of the case that is to be made either on his behalf or is to be made against him.  For that reason, we will grant you the adjournment for a month and we would invite the Crown to make the necessary inquiries and then, when the case comes back here, the Court will be in a position to deal more adequately with it.

I should indicate, Mrs Sinanovic, that whatever the situation may be with regard to legal aid in a months time or with regard to other aspects, apart from that that we have just referred to, it would be expected that the matter would be disposed of on that occasion.  The reason for that is that the Court cannot allow applications for special leave to appeal to continue on for an indefinite time.  The programme of the Court's own work is such that we have to dispose of it as soon as we can efficiently and for that reason it will be determined, subject to the point that we have just mentioned, in a months time.

MRS SINANOVIC:   Also, in the event, if Mr Sinanovic is not granted access to his legal documents, will the matter still proceed?

BRENNAN CJ:   We will consider that situation when we discover the reason for it and the problems that arise in relation to it.

MRS SINANOVIC:   Your Honours, also, there is one other thing that had come up just late yesterday evening.  I did not put it in the affidavit because it was of no concern at that time to do so.  The reason was I was assured by Mr Dunthorne, the general manager of the correctional centre, that Mr Sinanovic would remain in Silverwater because they had raised much difficulty as he was taken backwards and forwards to Junee Correctional Centre.  In fact, Mr Sinanovic was on that truck.  I do not know if your Honours were made aware of that incident that happened between Goulburn and Junee of the prisoners.  I was assured by Mr Dunthorne, on the last occasion when I spoke to him, on Monday - he assured me Mr Sinanovic would remain at Silverwater Correctional Centre, bearing in mind he had seen this warrant which is the second - firstly, there was a recommendation by his Honour Judge Nash that he remain there.

BRENNAN CJ:   I think we understand the problem.  You want to ensure that your husband is available here.

MRS SINANOVIC:   I have been told that he is now on his way down to Junee, after being assured that he is going to be - - -

BRENNAN CJ:   That is a problem which this Court has no jurisdiction over but I think that the Crown, having heard what we have had to say about access to documents, will no doubt be taking up with the appropriate authorities the problem of actual access and not simply theoretical access.  But beyond that, it is not possible for this Court to make any orders in relation to it, Mrs Sinanovic.

MRS SINANOVIC:   I understand that.  I just wanted to bring it to the Court's attention that the difficulty now that will be arising is Mr Sinanovic is going to be down at Junee.  So that will make it even more difficult to see him.

BRENNAN CJ:   That may be so, but that is a subject which can receive consideration in a months time.  The matter will be adjourned accordingly to the next sittings of the Court appointed to hear applications for special leave in Sydney.

AT 12.23 PM THE MATTER WAS ADJOURNED