Tange v Commonwealth Director of Public Prosecutions

[2001] HCATrans 381

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B14 of 2000

B e t w e e n -

STUART TANGE

Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

SUPREME COURT OF CRIMINAL APPEAL OF QUEENSLAND

Second Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 OCTOBER 2001, AT 11.47 AM

Copyright in the High Court of Australia

MR S. TANGE appeared in person.

MR T.D. MARTIN, SC:    If the Court pleases, I appear for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Tange.

MR TANGE:   I have some documents I have photostatted for you, you might like to ‑ ‑ ‑

KIRBY J:   Can I just get one thing clear.  You were sentenced to two years imprisonment from 17 November 1993, is that correct?

MR TANGE:   I think it was nine months, was it not?

KIRBY J:   Your sentence has expired; the one you want to appeal against has long since expired.

MR TANGE:   I do not think I am appealing against the sentence, your Honour.

KIRBY J:   No, but you have served the sentence?

MR TANGE:   I have served the time, yes, nine months I think it was, or five months.

KIRBY J:   It is really simply that you want to challenge the conviction?

MR TANGE:   Yes, your Honour.

KIRBY J:   You want to do that although you have fully served the sentence?

MR TANGE:   Yes, your Honour.  For the records, I do not take any form of illegal drugs whatsoever and I do not deal in drugs whatsoever and I am totally against them.  Why I make that statement is that there is a case of bribery here.  This case of bribery is supposed to be involving drugs, but we are not even sure if it is involving drugs, because the Crown’s case has not laid out what the actual bribery was for.

Through the whole matter through the trial they have not actually established if there was a bribe and what the bribe was for.  All they have established is that an incident took place and that incident resulted in a case of bribery.  I will start off with - do you want me to start now, your Honour?

GLEESON CJ:   You have started, you are under way.  Time started running when you rose to your feet.

MR TANGE:   The first point of the grounds is grounds A, your Honour, and that is in the empanelling of the jury.  I agree we have a good jury system and we should keep the jury system; it is very important for a democratic country.  What the point would be with the jury system is this, that when a jury is empanelled an accused is allowed so many challenges, maybe eight, and the Crown is allowed so many too.

What my point would be on the empanelling of the jury is simply this, that if an accused, which is the accused’s trial, if the accused does not want to challenge any member of the jury and wishes to have those 12 people sit down on a fair basis and give that jury the benefit of the doubt, the Crown should not have the right to challenge if the accused does not challenge any of the members of the jury.

KIRBY J:   That may be what you say should be the law but it is not the law, and we cannot just make up the law and change the law because you do not like it or we do not like it.

MR TANGE:   That is true, your Honour.  That is why I am here today on that point of grounds.  The fact is if an accused person wants the benefit of the doubt for those first 12 people to come in and sit down and judge him because it is the accused’s trial, not the Crown, the Crown should not have the opportunity of challenging any one of those people.  Unless the accused challenges, then the Crown should be entitled to challenge too its eight, but the first 12 people who walk in, if the accused does not challenge any one of those 12, then the Crown has no right to challenge.  In this case I did not challenge any of those first 12 people because I gave them the benefit of the doubt the same as they have to give me the benefit of the doubt when my evidence and the Crown’s evidence are put before the case.  I say that the Crown has no right to challenge those jury members if the accused does not challenge at all.  That is a point of law that is marked in No A.

Secondly, I will not go too far into that; it is all written in the written submission.  What I do want to have another challenge on - and I will just hand some documents up to you, the indictment.  The indictment started out as a semi‑bribery charge in these words, and this was done by Francis Walsh, the prosecutor:

did give to Francis Patrick Clair property namely $5,010.00 in order to influence –

that was one of the first indictments and that went before the committals and that was - I pleaded not guilty, right, and it was committed for trial.  Then we had another indictment given by Anthony Gates, it is on this form here, and it states that “who in order to influence” Gates, right, that is another indictment.

In the last indictment that was arranged on and that I pleaded not guilty on was bribery.  So out of all three indictments that was put before the District Court, they came up with the last one as bribery.  The point is simply this, that when I went before the court and stood in the dock all the present jury, potential present jury, were all in court.  The prosecutor came up with the last charge of bribery.  He made a mistake and said “burglary” and the judge corrected him and then he said “sorry, bribery”.  At the top of page AB9 in the application book ‑ ‑ ‑

KIRBY J:   I hope he turned up at court expecting to prosecute bribery and not burglary.

MR TANGE:   I do not know how he did that, but that is what they read out in court.

KIRBY J:   Probably just a slip of the tongue.

MR TANGE:   Yes, it probably was, I just put it down to slip of the tongue, but that is what was read out anyway.  But then his Honour corrected him and he said “burglary”, and he said “no, one count of bribery”.  If you go to page AB9 in the application book, this is the start of a trial with a potential jury all in court right beside us before they are picked and empanelled.

HIS HONOUR:  Yes, Mr Walsh?

MR WALSH:  Your Honour, I present a fresh indictment against Stuart Harold Tange charging him with one count of burglary and I ask that he be arraigned on that indictment.

Which he meant bribery.  I am already in the dock, the accused is already in the dock facing a charge, right, and then the prosecutor turns around and says “a fresh indictment”.  It is putting into the jury’s mind that there is more than one indictment or one charge that the accused is actually on, where in fact there is only one charge.  We just have three different indictments leading up to one all in the presence of the jury.  If we go to ‑ ‑ ‑

KIRBY J:   Did you ask the judge to correct that or to inform the jury of what the situation was?

MR TANGE:   At the time I did not, your Honour, because I was getting ready and I did not realise that this jury was going to be the jury that sat there, or even they were there, and I sat down and then they started picking out the jury and it went from there.  It is influencing and inflaming the jury’s mind that there is more than one indictment, and why I say this is this ‑ ‑ ‑

KIRBY J:   Not really.  “Fresh” connotes that it is substitution of something that is before.  Anyway, really in your case, there were bigger fish to fry.  It did not turn on a slip of the tongue like this.  Burglary, perjury, fresh, non‑fresh, I mean, that is just not a significant matter in your case.  We sit here and we deal with some of the biggest cases in the country.  Those points that you are putting forward are completely meritless.

MR TANGE:   If the prosecutor says that you have got three indictments and ‑ ‑ ‑

KIRBY J:   I can imagine some things a prosecutor would say in front of a jury‑in‑waiting that could cause the miscarriage of a trial.  Nothing you have put forward in your written submissions or oral statements is anywhere near that league, nowhere near it.

MR TANGE:   I will go back to that.  At the end of the sentencing report it must mean something to the court and the Crown because they brought the matter up.  I will just read out what they say:

HIS HONOUR:  Yes, very well.

This is after the jury has found me guilty and there is a sentence report, right:

HIS HONOUR:  Yes, very well.  Yes, nothing further?

MR WALSH:  Your Honour, there are two old indictments that I should formally not proceed with.

HIS HONOUR:  Yes, very well.

MR WALSH:  Yes, I have indicated that the Crown will proceed no further on the two old indictments.

The old two indictments are the same indictments that I was originally arraigned on, and they increase the indictment right up to bribery.  How can they have two old indictments and still have one being arraigned on in court?  They are talking in front of the potential jury and inflame the jury’s mind that there is two old indictments from the start, and there is really only one.

It is a point where it simply goes like this.  If you are charged with murder, the Crown has the option to put a manslaughter charge on as well as the murder, and the jury has the option to say yes, it is either murder or manslaughter.  If the Crown was doing that, because we are playing with words where “give”, “gave”, nobody can say what the “give” and “gave” was because the Crown’s evidence from the police officer said that I did not give him any money, that he actually took my wallet from the top of the battery on the car and in there was my $5,010, my bankcard, my driver’s licence.  They had a warrant at the time to take all this under a 28 day seizure warrant.  The Crown cannot rely on these two old charges because they are all the same charge, just different worded, that is all.  It is two different indictments worded, and a final indictment of bribery.

If the Crown is saying you can be charged with murder and they have got the option for manslaughter, the Crown did not put these charges forward of “did give” or “maybe give” or an accessory charge.  They went for the whole charge of bribery which includes all those two there.  It has inflamed the jury’s mind when they think there is two other charges being held on me and, as the prosecutor said, your Honour, “There are two old indictments that I should formally not proceed with”.  You could charge a person a hundred times for the same offence, try him on one offence and the jury and everybody is under the impression there is another hundred charges behind there, and yet it is the same charge.

KIRBY J:   Look, Mr Tange, the jury is told what they have to concentrate on, on the charge of the indictment that they are sworn to try you upon.  That was very particular and very specific.  It so happens that there has been a bit of research recently about juries and it shows that juries do just that.  They concentrate on the matter that they are sworn to try.  It is really scraping the bottom of the barrel in a case where you were sentenced as long ago as 1993, where you have served your sentence and you are coming along here raising really spurious points, with respect to you.  I mean, if there were any significant smell of injustice I would be the first to see it, but these points are completely meritless.

MR TANGE:   Your Honour, we are going back such a long time ago because it takes that long to get to this Court.

KIRBY J:   It does not take from 1993.

MR TANGE:   I have not been lying under a mango tree waiting for this case to come up.  There is a process here where you can wait 14 years to get a case before this Court.  Some people have got claims going back 30 years before they can be dealt with in this country.  It is not a matter of I being idle, doing nothing.  I went through all the proceeds from the magistrates court, to the jury, to the appeals court, to here, and I do not set the times and dates for this Court.  The times and dates are set by the clerk or the Registrar and you have to wait in line to get to the High Court of Australia if you want to get that far.  Some people just give up and throw it away because they do not believe in democratic rights or justice or a fair hearing or jury.

KIRBY J:   The judgment you are appealing against is of 17 November 1993 and it was given by the former Chief Justice of Queensland.  It is such a long while ago.  I do not accept that it takes from 1993 until now, nearly nine years, if you are reasonably diligent.

MR TANGE:   I have gone through the proper processes and I have been in time ‑ ‑ ‑

KIRBY J:   Anyway, this is beside the point.  You are losing your time.  If you have got important points you have to cover it in the short time you have.

MR TANGE:   Is it not important that I find out where we stand?  I have gone through the proper processes and I am here now.

KIRBY J:   Forget about that, concentrate on the substance.

MR TANGE:   Okay.  That point there about the indictments is that the jury, I say ‑  I will go back to where this matter starts.  I was living in a flat upstairs and a person was living in a flat downstairs, a young person.  The young person allegedly had some drugs sent through the mail, 56 grams of cannabis.  Nothing to do with me, I was living upstairs.  The federal police took out a search warrant for the whole premises.  They said they found 56 grams of cannabis, which I think is about two ounces or something.  Anyway, they raided that place, but then they come upstairs and question me about it.  I know nothing about it because I do not get involved in drugs and I do not use them.  While they were up there they found nothing illegal, nothing at all.  There was a general conversation with a police officer where he suggested that for $5,000 this could be done and that could be done.

KIRBY J:   We know all that, we have read all this.  Your time is nearly up.  We have read all the papers in the document.

MR TANGE:   I have not committed myself to anything.  I have not said anything about bribery.  In the whole conversation that was taped by the police officer there is no mention of me talking to him about money or moneys to do anything whatsoever.  To establish the case, there is nothing

there.  Besides a conversation, there is nothing there admitting on my behalf of being involved in anything, and I do not to this day know - if I was supposed to be bribing him, I do not even know what the bribe was for, because there is no indication from the Crown what the bribe was supposed to be for.

KIRBY J:   You put a wallet down.

MR TANGE:   I went down to the police station.  They took $3,000 out of the house, and he told me to come down to the station, it is in the transcripts here, and pick the money up.  I went down to the police station, I parked outside the police station, I had trouble with the car, I went to go inside, he come up behind me and somehow or other he got my wallet, my key card, my bankcard, and money that I had in the wallet.  I do not how he got it or what he was doing.  I did not give it to him.  There is no indication that I gave it to him.  There is no indication that I told him he could have it, and he said himself under oath that I did not give him the money; he took it off the battery himself.

KIRBY J:   It is alleged that you put it down in a way that was obvious that it was a bribe and the jury accepted that.  You denied it, the jury accepted it; that is our system of trial.

MR TANGE:   It is easy because the jury came back with really some interesting questions.  The jury came back and said was it entrapment, was there an entrapment involved there?  I agree there was not any entrapment because I do not believe there was anything done wrong.  Under the federal police powers they have the right to seize anything they like.  You cannot challenge it.  He had a warrant for 28 days and this is the same day.  If he had a warrant for 28 days he could seize the car, he could seize money, he can seize you, he can seize your glasses, he can seize anything he wants and there is nothing anybody can do about it.

GLEESON CJ:  Thank you, Mr Tange, your time is up now.  We do not need to hear you, Mr Martin.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and we are unpersuaded that there has been any miscarriage of justice.  The application for special leave to appeal is refused.

AT 12.06 PM THE MATTER WAS CONCLUDED