Siryani v The Queen

[1996] HCATrans 351

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S81 of 1996

B e t w e e n -

IASS (SAM) SIRYANI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1996, AT 10.31 AM

Copyright in the High Court of Australia

MR S.J. ODGERS:   May it please the Court, I appear for the applicant.  (instructed by Trevor Nyman and Company)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR G.J. TABUTEAU, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions.

BRENNAN CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, firstly, there is an application for an extension of time in this matter.

BRENNAN CJ:   Is that opposed, Mr Jackson?

MR JACKSON:   No, your Honour.

MR ODGERS:   Your Honours, this is a case in which, at sentence indication proceedings in relation to New South Wales charges, defence counsel asked the solicitor appearing for the New South Wales Director of Public Prosecutions whether there were any outstanding charges against the accused.  The solicitor, after consulting with a police officer, replied in the negative.  Defence counsel understood this to mean that there would be no further charges, State or Commonwealth, arising out of the investigation which had led to the New South Wales charges.  He conveyed that to the accused who decided, at that point, to accept the sentence indication offered by the District Court judge on that basis.

Subsequently, the Commonwealth Director of Public Prosecutions decided to bring two additional charges arising out of the investigation and an application was brought for a permanent stay of proceedings in the District Court.  Judge Patten in District Court held that the circumstances created unfairness to the accused even though the answer which the solicitor had given was strictly accurate.  It was strictly accurate that there were no outstanding charges because the Commonwealth had not, at that time, laid the charges.  That did not occur for another six months or more.  They were still considering the question.  Nevertheless, the judge considered that in all the circumstances it would be oppressive to proceed or to allow the Commonwealth prosecutions to proceed and would bring the administration of justice into disrepute.

That matter was appealed to the Court of Criminal Appeal.  That court held that there was no abuse and, indeed, no unfairness.  The court approached the matter on the basis that the question was whether or not the solicitor appearing for the Director of Public Prosecutions understood or ought reasonably to have understood from the question asked by counsel appearing for the defendant whether or not there were going to be any charges at all arising out of the investigation.

GAUDRON J:   You can stop there.  For my part, I do not see what the relevance of that question is anyway.  One has to focus, surely, on the charges that have been brought and see where is the unfairness or abuse in prosecuting them to a verdict.

MR ODGERS:   It is our submission, your Honour, that there are two questions.  Firstly, has an undertaking been given by the relevant authorities that there will not be a prosecution?

GAUDRON J:   Clearly, there was not.

MR ODGERS:   There was not in this case.  If there was no undertaking, did the defendant, the accused, reasonably understand that there had been an undertaking?

GAUDRON J:   Why is that relevant?

MR ODGERS:   We submit that that goes to the question of unfairness and, ultimately, oppression.

GAUDRON J:   It may go to whether or not some step should have been taken with respect to the sentence or the plea of guilty but I do not see why it goes at all to the question whether there is any abuse of process involved or any unfairness involved in the prosecution to a verdict of the Commonwealth charges.

MR ODGERS:   Your Honour, hypothetically, if a situation arose in which a - let us assume that the Director of Public Prosecutions was appearing at the proceedings and had answered a question strictly correctly but had nonetheless given an impression or created an impression, a reasonable impression in the mind of the accused that an undertaking was being given, it is our submission that those circumstances may well create circumstances constituting an abuse of process such that the court would not permit the prosecution to continue. 

So, in our submission, even if there was in fact no undertaking, if that impression was created reasonably in the mind of the defendant, then that would be a basis for a stay.

GAUDRON J:   But why?

MR ODGERS:   I guess the difficulty is we are getting into the realms of conceptions of fairness and abuse and the appropriateness of the courts allowing proceedings to occur where false impressions have been created.  Ultimately, my submission is that if the wrong impression was created and it was done in circumstances - - -

GAUDRON J:   But the wrong impression resulted in a course of action in relation to the State offences.

MR ODGERS:   Certainly.

GAUDRON J:   Now, one can well understand why you might wish to take some action in relation to those sentences, having regard to what you say is a false impression, but how do you make the leap to the Commonwealth offences?

MR ODGERS:   The leap is this, your Honour, that at the date of the sentence indication proceedings the defendant, the accused, and his counsel were aware that the Commonwealth was considering the possibility of bringing Commonwealth charges.  When the question was asked of the solicitor for the Director of Public Prosecutions appearing for the Director, the intention was to find out whether or not there would be any additional State or Commonwealth charges and the understanding was that the solicitor would be asking police officers who were involved in the Commonwealth matter, were liaising with the Commonwealth, and therefore the understanding which was created, we say partly through the fault of the solicitor appearing for the New South Wales Director, was that there would be no further Commonwealth charges which, of course, impinged on the decision making of the accused as to whether or not he would accept the indication.

It is a common phenomenon, your Honours, that charge bargaining is an aspect of the process of sentencing and a person deciding whether or not they are going to plead guilty, deciding whether or not they are prepared to accept a particular sentence, is concerned to know what does this cover and in this case, in my submission, the understanding was that what the sentence would cover would be all matters arising out of that investigation, State or Commonwealth, and therefore it did affect the state of mind of the accused and affected his decision whether or not to accept the sentence offered.

Now, it was suggested that he could then go back to the Court of Criminal Appeal and seek to have his plea of guilty in respect of the State matters withdrawn but the District Court judge accepted that it was out of time and that it was not a reasonable option for the accused.  It was a difficult situation for the District Court judge because he did have to consider whether there were any other alternatives, realistic alternatives, to granting a stay but in the event, having considered those alternatives, he decided that there was none other than to grant a stay in relation to the Commonwealth matters.

BRENNAN CJ:   Well, that was his view.  The Court of Criminal Appeal had another one.

MR ODGERS:   Yes, your Honour, I appreciate that.  It is our submission that the Court of Criminal Appeal took an inappropriately technical view of the distinction between State and Commonwealth prosecutions.  I mean, ultimately, we say that the question this Court should consider is whether, notwithstanding the technical distinctions between a State Director of Public Prosecutions and a Commonwealth Director of Public Prosecutions, between State offences and Commonwealth offences, that the day has now been reached or should be reached in Australia whereby the courts should require prosecutors, State or Commonwealth, to liaise to prevent the kind of misconceptions which we say were actually found to have occurred in this case. 

The circumstances of this case illustrate the very problem which can arise whereby a defendant, knowing that there is a possibility of Commonwealth charges, seeks to find out whether they are going to be brought.  The solicitor appearing for the State DPP expressly asks a police officer, “Are there going to be any Commonwealth prosecutions?”  He is told, “Well, I don’t know” or, “I don’t know what is happening at this stage”, and then chooses to answer the question in a way that will essentially not provide the answer which was sought.  What we submit is that there should be an onus on the prosecuting authority, State or Commonwealth, in circumstances such as this where there is the possibility of Commonwealth prosecutions, where it is clearly a relevant consideration to the question of whether or not to accept the sentence being offered, that there should be an onus on the authorities to co-ordinate.

GAUDRON J:   But that just goes off on a tangent from legal principle.  I mean, the principle is whether or not the continuation of the prosecution is an abuse of process.  Now, that is the question.

MR ODGERS:   Yes, your Honour, but we submit that one aspect of that is whether or not there has been any unfairness in the way that the proceedings have continued to the accused.

GAUDRON J:   The question is whether there can be a fair trial of the charges.

MR ODGERS:   With respect, no, your Honour.  There is an alternative head of abuse of process which is nothing to do with whether a trial can be fair.  We say that the way in which - - -

GAUDRON J:   What is that head?

MR ODGERS:   The head is that there was something in the way that the matter was prosecuted or that there is some aspect in which the proceedings have come before the court such that there has been oppression of the accused or that to allow the proceedings to continue would bring the administration of justice into disrepute.  We say that, hypothetically, if a prosecutor, in circumstances of a sentence indication, were to say, “No, there’s not going to be any more charges against you.  You can safely plead to this”, and then the next day charges are brought, that would be a clear case where a court would say that there has been an abuse.

GAUDRON J:   Would be a clear case where you would appeal whatever sentences had been imposed.

MR ODGERS:   I understand that, your Honour.  Our submission is that if that was a reasonable alternative to a permanent stay, then so be it, but our submission and the finding of the judge in this case was that that was not a reasonable alternative to a permanent stay.

Ultimately, it is our submission that firstly, if an undertaking were given that there would be no Commonwealth prosecutions, that would be a permissible basis for a stay.  Secondly, we submit that even if there was no undertaking, if it was reasonably understood in all the circumstances by the defendant that there would be no further Commonwealth prosecutions, then that would be a basis for a permanent stay.  We say it was reasonable to so understand it.  The facts of the matter or at least the position as explained by the solicitor who appeared for the State DPP was that he was well aware that there was a possibility of Commonwealth prosecution.  He considered the possibility of raising public interest immunity on that question but because of the narrowness of the question asked him, he was able, effectively, to avoid having to do that.

Indeed, he said that he believed that the accused was not aware that there was the possibility of Commonwealth charges.  So, in those circumstances, he expected that the accused would not even be able to ask the right question.  Now, with respect, your Honours, this put the accused in an untenable situation.  He was essentially entering a plea of guilty in circumstances where he believed, we say reasonable, that there would be no further Commonwealth charges.  We submit that this Court should lay down guidelines as to what can be prosecutorial oppression in circumstances such as this where - - -

GAUDRON J:   May not the more important thing be - but in this case though it is too late for this - for guidelines to be developed about this rather novel procedure called “the sentence indication”?  That would seem to be the route of the trouble.  To say the least, it is a novel procedure and one would think that there ought to be guidelines at that point.

MR ODGERS:   Certainly, your Honour.  I can say that there has, in New South Wales, been considerable controversy about those sentence indication proceedings and, as I understand it, there has been a decision made, at least in some quarters, not to continue with the experiment.

GUMMOW J:   Does it have a legislative base?

MR ODGERS:   Yes, your Honour.   The Criminal Procedure Act, New South Wales, permits a judge to give an indication to an accused who requests it of the sentence that would be likely to be imposed on certain assumed facts, and it was introduced in order to encourage people to plead guilty.

Your Honours, one method of encouraging people to plead guilty in the past has been charge bargaining which is a mechanism whereby the prosecution agrees that, “If you plead guilty, these are the charges and these alone which will be brought against you and we will not proceed with other matters.”  We say that that kind of issue is the very issue that arises in this application where you have, for example, hypothetically again, a State Director of Public Prosecutions coming to a charge bargaining arrangement and not mentioning to the accused, “Sorry, I should mention that there is a possibility there will be 10 Commonwealth charges arising out of the same incident against you.”  Now, we submit that that would be a circumstance which would create oppression.

We say that the facts of this case are close to that scenario.  Ultimately, at the end of the day we say that an individual accused cares not whether or not he is the victim - that is probably not the right word - that he is subject to State or Commonwealth prosecutions.  His concern is to know, “If I plead guilty to this, what is going to be the result?”

BRENNAN CJ:   That is right, that is his concern.  The community has other concerns.

MR ODGERS:   Yes, your Honour, but we submit that - - -

BRENNAN CJ:   And this is the problem with regard to the charge bargaining arrangement, is it not, if we start to introduce into what is fundamentally a community concern, considerations which are appropriate to the private law of contract.

MR ODGERS:   I appreciate that, your Honour.

BRENNAN CJ:   Well then, does that not give point to what Justice Gaudron has said, that if there are guidelines to be laid down, why should this Court even endeavour to do so on a footing that assumes that there is a clear practice adopted in relation to this rather novel procedure?

MR ODGERS:   In my submission, the Court must deal with the world as it is and the world as it is is that there are sentence indication proceedings and that charge bargaining occurs.

BRENNAN CJ:   Well, the Court does deal with the world as it is in terms of legal principle but you are not seeking legal principle, you are seeking guidelines to assist in the exercise of discretions within legal principle.

MR ODGERS:   Yes.

BRENNAN CJ:   Yes.  Well now, that is the proposition.

MR ODGERS:   That is the proposition, your Honour.  I think I have put it as strongly as I can.  Thank you.

BRENNAN CJ:   We do not need to trouble you, Mr Jackson.

This application raises no more than the correctness of the evaluation of the circumstances by the Court of Criminal Appeal.  It involves no new question of principle.  It is not appropriate therefore to grant special leave. 
Special leave is refused.

AT 10.49 AM THE MATTER WAS CONCLUDED