Sinanovic v The Queen (No 1)

Case [2001] HCA 35

HIGH COURT OF AUSTRALIA

KIRBY J

HAKIJA SINANOVIC   APPLICANT

AND

THE QUEEN   RESPONDENT

Sinanovic v The Queen (No 1)
[2001] HCA 35
Date of Order:  15 May 2001
Date of Publication of Reasons:  8 June 2001
S303/2000

ORDER

Application dismissed.

Representation:

W C Terracini SC for the applicant (instructed by Ramrakha Jenkins)

A M Blackmore for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))

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 (No 1)

High Court Practice - Bail - Application for bail pending application for special leave to appeal against conviction - Bail refused in State Supreme Court - Principles governing admission to bail prior to determination of special leave application - Whether exceptional case demonstrated.

Criminal law and procedure - Bail - High Court Practice - Undetermined application for special leave to appeal - Availability of bail - Principles governing grant of bail - Whether exceptional circumstances established.

Crimes Act 1900 (NSW), s 178BA.

  1. KIRBY J.   This application for bail is brought by Hakija Sinanovic ("the applicant"). 

    The facts

  2. On 13 January 1999, at his trial before McGuire DCJ and a jury, the applicant was found guilty of an offence against s 178BA of the Crimes Act 1900 (NSW). The indictment alleged that the offence had occurred on 11 December 1995 at Sydney. The offence alleged was that of dishonestly obtaining for himself a diamond ring, by deception, by representing that he would, on that day, deposit into a bank account of Stefano Designer Jewellery Pty Ltd a cheque for $27,000, being the price of the ring. No such cheque was deposited.

  3. The verdict of guilty followed a brief retirement by the jury.  Following the verdict, McGuire DCJ convicted the applicant.  The maximum penalty provided upon conviction of the offence was 5 years imprisonment.  McGuire DCJ sentenced the applicant to imprisonment for a minimum term of 16 months commencing on 16 May 2003.  That was a date after the due completion of a sentence which had earlier been imposed on the applicant for offences with which this Court is not concerned.  McGuire DCJ ordered that the primary sentence which he imposed would expire on 15 September 2004, after which he ordered that the applicant serve an additional term of 12 months imprisonment.

  4. The applicant appealed to the New South Wales Court of Criminal Appeal.  That Court, constituted by Wood CJ at CL, Hulme and Greg James JJ, heard the appeal on 4 February 2000.  The applicant appeared in person.  His wife was permitted to speak for him.  The applicant also made a number of observations to the Court.  In their reasons, the judges referred to difficulties which they had experienced in dealing with all of the points raised in the appeal because of the distractions from the issues at trial and the mode of presentation of the arguments.  Those are not uncommon problems where an applicant…

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AGLC
Sinanovic v The Queen (No 1) [2001] HCA 35
Case
[2001] HCA 35
Decision Date

CaseChat Overview and Summary

This matter concerned an application for bail pending an application for special leave to appeal against a conviction. The applicant, Hakija Sinanovic, had been found guilty of dishonestly obtaining a diamond ring by deception, contrary to s 178BA of the Crimes Act 1900 (NSW). He was sentenced to a minimum term of 16 months imprisonment, with an additional term of 12 months. His appeal to the New South Wales Court of Criminal Appeal was dismissed. The applicant then sought special leave to appeal to the High Court. An application for bail made to the Supreme Court of New South Wales was refused. The application for bail was heard by Kirby J of the High Court.

The legal issue before the High Court was the principles governing the admission to bail of an applicant in circumstances where an application for special leave to appeal against a conviction has been made but not yet determined. Specifically, the court was required to consider whether the applicant had demonstrated exceptional circumstances warranting the grant of bail.

Kirby J applied the principles established for granting bail pending an application for special leave to appeal. These principles require the applicant to demonstrate that their case is exceptional, meaning that there are substantial prospects of success on appeal and that the circumstances are out of the ordinary. His Honour noted that the applicant had already had his conviction and sentence affirmed by the New South Wales Court of Criminal Appeal. After considering the written material and the refusal of bail by the Supreme Court, Kirby J concluded that the applicant had not established any exceptional circumstances that would justify granting bail.

The application for bail was dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

This application for bail is brought by Hakija Sinanovic ("the applicant"). The facts On 13 January 1999, at his trial before McGuire DCJ and a jury, the applicant was found guilty of an offence against s 178BA of the Crimes Act 1900 (NSW). The indictment alleged that the offence had occurred on 11 December 1995 at Sydney. The offence alleged was that of dishonestly obtaining for himself a diamond ring, by deception, by representing that he would, on that day, deposit into a bank account of Stefano Designer Jewellery Pty Ltd a cheque for $27,000, being the price of the ring. No such cheque was deposited. The verdict of guilty followed a brief retirement by the jury. Following the verdict, McGuire DCJ convicted the applicant. The maximum penalty provided upon conviction of the offence was 5 years imprisonment. McGuire DCJ sentenced the applicant to imprisonment for a minimum term of 16 months commencing on 16 May 2003. That was a date after the due completion of a sentence which had earlier been imposed on the applicant for offences with which this Court is not concerned. McGuire DCJ ordered that the primary sentence which he imposed would expire on 15 September 2004, after which he ordered that the applicant serve an additional term of 12 months imprisonment. The applicant appealed to the New South Wales Court of Criminal Appeal. That Court, constituted by Wood CJ at CL, Hulme and Greg James JJ, heard the appeal on 4 February 2000. The applicant appeared in person. His wife was permitted to speak for him. The applicant also made a number of observations to the Court. In their reasons, the judges referred to difficulties which they had experienced in dealing with all of the points raised in the appeal because of the distractions from the issues at trial and the mode of presentation of the arguments. Those are not uncommon problems where an applicant appears in person. Nevertheless, for reasons given on behalf of the Court of Criminal Appeal by Hulme J, that Court dismissed the applicant's appeal against his conviction[1]. There were minor adjustments to the terms of the sentence.[1]R v Sinanovic [2000] NSWCCA 397. The applicant then filed an application for special leave to appeal to this Court raising a number of grounds. I have considered the written statement in support of the application for special leave and the statement of the respondent opposing the grant of special leave. The applicant, in purported defence of the utility of his application to this Court, applied to the Supreme Court for bail. That application was heard by Greg James J on 2 May 2001. It was dismissed. His Honour concluded that there were no "special or exceptional circumstances" to warrant the immediate release of the applicant from serving the sentence which "stands good until or unless set aside by a competent Court of Appeal"[2].[2]R v Sinanovic unreported, New South Wales Court of Criminal Appeal, 2 May 2001 at [23] per Greg James J.The prospects of special leave to appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIRBY J

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Ratio Decidendi

Legal Principle Established

Established by: KIRBY J

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