Tannous v The Queen

[1989] HCATrans 267

•

.

~

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S85 of 1988

B e t w e e n -

SAM SAMAAN TANNOUS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Tannous

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 NOVEMBER 1989, AT 4.20 PM

Copyright in the High Court of Australia

C2T69/l/FK 1 8/11/89

MR M.D.A. MAURICE, QC:  May it please the Court, I appear

with my learned friend, MR T. BUDDIN, for the

applicant. (instructed by Horowitz & Bilinsky)

MR K. MASON, QC, Solicitor-General for the State of New South

Wales:  I appear with my learned friend,

MR D.C. FREARSON, for the Crown. (instructed by

the Solicitor for Public Prosecutions)

MASON CJ:	Yes, Mr Maurice.
MR MAURICE:	May I hand up to Your Honours an outline of

our submissions, together with a brief chronology

and there are some additional referenceswhich we

would like to have circulated to the Court as well.

MASON CJ: Thank you. This is an application for an extension

of time and for special leave?

MR MAURICE:	Yes, Your Honour.
MASON CJ:	You can deal with those two aspects of the

matter first, Mr Maurice.

MR MAURICE:  Yes, Your Honour.

McHUGH J: Just before you do, Mr Maurice, you handed up

certain parts of the transcript but my book also

misses from 915 to 923 inclusive. Perhaps it

is irrelevant.

MR MAURICE:	I am unable to assist Your Honour by g1v1ng Your Honour a firm answer as to why it has been
omitted but I imagine that that is the explanation.
My instructing solicitor has just gone upstairs
to obtain the original transcript, Your Honour, and I hope to be able to clarify that matter shortly.
Your Honours should have before you additional transcript pages which were omitted from the application book, being pages 922 to 946, and 963, and as well, 980 to 981.

(Continued on page 3)

C2T69/2/ND	2	8/11/89
Tannous

MR MAURICE (continuing):  I omitted to mention that amongst

the materials which had been handed up are two records

of interview which were exhibits at the trial, one

of the accused, W-E-H-B-E, that is how I pronounce

it, and the other of the accused, S-E-F-I-A-N.

The threshold problem mentioned by Your Honour the

Chief Justice of obtaining an extension of time for

this application is dealt with so far as it can be

in the affidavit of Mr Bilinsky. May I take Your Honours

to volume 2, page 476, in paragraph 11 of Mr Bilinsky's

affidavit he sets out the grounds of our application

for an extension of time, and there are two letters
exhibited to that affidavit, (a) and (b) which
are relevant to the application. There is really

nothing I can say to enlarge upon those matters,

Your Honour. The applicant has, it appears, been

seeking to have an application for leave to appeal lodged since the Court of Criminal Appeal gave its

decision, but for the reasons set out in that

affidavit it took some time for that to occur.

Those reasons are, in our submission, meritorious.

MASON CJ:	Yes.
MR MAURICE:	If I could just - before outlining our submissions

in support of the application for special leave,

Your Honour - give some sort of outline of the

facts. Your Honours may appreciate from the

chronology which I have handed up, that this

prosecution arose out of a raid at a house at

19 Cornelius Street, Punchbowl at about 10.20 on

the evening of 15 May, which would be 1984.

(Continued on page 4)

C2T70/l/FK	3	8/11/89
Tannous

MR MAURICE (continuing):  I will put it this way: at the

trial of the applicant there were six co-accused,

six persons charged with this conspiracy to

supply heroin. One of them, a man Jaafar,

pleaded guilty; the other five pleaded not

guilty. Of those five two were apprehended

on those premises at 19 Cornelius Street during

the course of that raid and two were apprehended

in a motor vehicle in Cornelius Street near the

premises.

It is difficult to obtain an outline of the Crown case, the opening is not recorded,

of course, and the were, so far as we have

been able to ascertain, no particulars of the

overt acts relied upon by the Crown, but in

the surmning up .in volune 2, page 409, the trial

judge attempts an overview. At line 15

His Honour attempts to surmnarize the Crown

allegations. Your Honours will see that

the Crown alleged that Tannous was the

instigator of a transaction for the sale of

approximately a kilogram of heroin, which

transaction was supposed to occur on the evening

of the raid at those premises in Punchbowl.

Essentially it is alleged that he had recruited

his co-accused to help facilitate that transaction

taking place on that evening.

TOOHEY J:  Mr Maurice, could I just interrupt you for

a moment? The index speaks of the indictment

as appearing at page 1 of the appeal book.

It does not seem to be there.

MR MAURICE:	No, it is not, Your Honour.
TOOHEY J:	Can it be found somewhere else?
MR MAURICE:	No, Your Honour. For some reason a lot of

the original documents appear to have been

lost, Your Honour, but the reference, I take it,

is to the arraignment where the indictment is

read and that does appear at page 1 of volume 1.

TOOHEY J: I see. Yes, thank you.

_(Continued on page 5)

C2T71/1/JM	4	8/11/89
Tannous

MR MAURICE:  As we understand it, Your Honour, the allegation

was a common law conspiracy to supply heroin which

the six co-accused were alleged to have been a party,

the supply at that time being an offence under the

POISONS ACT (NSW).

MASON CJ: One of the questions I might ask you, Mr Maurice,

is:  do we have the judgment of the Court of

Criminal Appeal in the other case?

MR MAURICE:  No, Your Honour.

MASON CJ: Because one has the impression on reading the

judgment of the Court of Criminal Appeal in this case

that it really is an addendum to the judgment in the

other case.

MR MAURICE:  I cannot answer Your Honour's question, obviously,

if I have not seen that judgment and I do not have

a copy available. My learned friends may have.

Yes, there is one available, Your Honour.

MASON CJ: Well, Mr Solicitor, you might hand that in and if

it seems to be relevant or to throw light on the

matter we can have it copied.

MR MASON:  Yes, Your Honour.

MR MAURICE:  It is our understanding, Your Honours, that the

appeals were heard separately and were run on

separate grounds and, indeed - just reading the

Court of Criminal Appeal's judgment - it would seem

that that must be so.

GAUDRON J:  I was not able to find in the appeal books your

grounds of appeal to the Court of Criminal Appeal.

Does anything turn on those?

MR MAURICE: Well, Your Honour, it is not there is the

reason why Your Honour could not find it but my

understanding was,	and I may be wrong,	that
copies had been forwarded to the Court.	(Continued on page 6)

C2T72/l/DR	5	8/11/89
Tannous

MASON CJ: Perhaps it was omitted because it does not seem

to be relevant to most of the grounds now argued.

MR MAURICE:  My learned friend says none,Your Honour, but

we of course quarrel with that. We do have one

copy available, Your Honour, which I could hand in.

I would say that it is apparent from reading those

and comparing them with the Court of Criminal Appeal's

reason for judgment that there must have been some

elaboration of those grounds, matters not clearly

covered by them appear to have been developed

before the Court of Criminal Appeal and dealt with,

if only peremptorily. Another place to which we

would refer Your Honours for an over-view of the
facts are the remarks on sentenee of Judge Cooper
which are set out in the Court of Criminal Appeal's

judgment on the appeal against severity beginning

at page 454 and really the case against the

applicant and his co-accused is summarized in

those remarks on that page and the following two

pages.

MASON CJ: Yes.

MR MAURICE:  If I could proceed then, Your Honour, to our first

point and we submit that it raises a serious

irregularity in the criminal appeal process.

(Continued on page 7)

C2T73/l/CM	6	8/11/89
Tannous

MR MAURICE (continuing):  The Court of Criminal Appeal

has dismissed several grounds of appeal

including two which are still alive - that

is the corroboration point and the joint trial

point - in a single sentence without at all

exposing their reasoning processes in doing

so, and I refer - - -

GAUDRON J:  Was the corroboration point alive before

the Court of Criminal Appeal?

MR MAURICE:  Yes, Your Honour. That appears from page 449,

line 13:

the learned judge did not adequately

deal with the element of corroboration

of the evidence of accomplices in the

course of the summing-up.

GAUDRON J: Yes, I see. So the grounds of appeal were

then amended?

MR MAURICE:  I cannot say that they were, Your Honour.

.I have a copy of the outline of the argument.

I cannot gaurantee that it was the one that

got before the Court but certainly it was

raised in that outline. The miscarriage of

justice arising out of the joint trial point

is mentioned on page 450 at line 11. But

these grounds were dismissed in effect in one

sentence, being the sentence commencing at

line 24 on that page, where His Honour the

Chief Justice said:

I do not, however, hold the view that the challenge on the adequacy of the Crown case, or the inclusion of the present appellant along with the other co-accused as persons to be tried together, or the

manner in which the judge dealt with the

evidence in the Crown case against Tannous,

is shown to have resulted in any miscarriage

of justice or any error.

We have made our submissions in paragraph 1 of

our outlines in respect of that.

(Continued on page 8)

C2T74/l/JM	7	8/11/89
Tannous

MR MAURICE (continuing):  So far as the applicant is

concerned, these grounds were not given the

attention and consideration they were entitled

to. In effect, his right to have a review of the

trial appears at least to have been denied him,

and we submit that the failure of the Court of

Criminal Appeal to perform its function goes to the root of the criminal justice system in this
country and is always a matter of such general

importance as to attract the attention of this

Court.

We go then to the corroboration point.

In our submission, joint trials almost invariably result in some prejudice to individual accused. It

can rarely be advantageous for one accused to have

his case cluttered up with the evidence against

another or others with whom he is jointly tried.

The reason most commonly advanced for joint trials

is that somehow it furthers the interests of

justice, but it would be more accurately put if it

were said that it were to spare the public purse.

In our submission, there must be some limits to this.

If to reduce costs and delay the Crown is permitted

to proceed routinely in this way, then all

reasonable steps to minimize the disadvantage to

individual accused ought to be taken. Generally

speaking, nothing less than a comprehensive and

detailed treatment of each case should be separately

undertaken by the presiding judge in his summing up
to the jury and although that appears to have been
recognized as long ago as TOWLE, one of the cases

referred to in our outline, it does not always occur.

In our submission, a separate treatment wilL

almost invariably call for separate directions both
as to the facts and to the law and where corroboration

is a matter requiring direction, directions on

corroboration are tailored to suit the individual

case. If that had been the approach adopted in this

trial, then it is probable that the problems with the

direction that we have enumerated in subparagraphs (a)

to (g) in our outline would not have occurred. There

is a dearth of authority from this Court on the

requirements for summing in multi-accused trials and
we submit that this application provides a vehicle

for the Court to make appropriate observations.

Quite where the trial went wrong on the matter of

corroboration is detailed in our outline, but

perhaps I should refer - - -

McHUGH J:  What do you say about the failure of counsel at the

trial to take any of these points?

C2T75/l/HS	8	8/11/89
Tannous

MR MAURICE:  Your Honour, it was not a point relied upon by

the Court of Criminal Appeal in disposing of the

matter. If they thought that notwithstanding that

there may have been a miscarriage of justice, that

that in itself was a reason for not allowing the
appeal, then, in our submission, they ought to
have indicated to counsel that that was the way
in which they proposed to deal with the case, given

counsel an opportunity to address the matter that

way and to have given some outline of their reasons

for so disposing of it. But, instead, they chose
to de~l with it, as it were, on its merits. but,

as I have already said, quite inadequately.

But, in any event, we would submit that there

has clearly been a miscarriage of justice in this

case and whether counsel sought a:separate trial

at the trial or not or whether he sought a discharge

of the jury at some stage because of the prejudice

accruing to his client, he cannot deprive his client

of the right to have the matter reviewed by the

Court of Criminal Appeal on the footing that a

miscarriage of justice occurred when the matter

is looked at comprehensively.

TOOHEY J:  Does that answer imply that there was, in fact,

no application for a separate trial?

MR MAURICE:	Yes, there was no application.
TOOHEY J:	Or no complaint made during the conduct of the

trial?

MR MAURICE:  No, Your Honour, there was none.

DAWSON J: Is there any authority which says that apart from

dealing with corroboration generally the judge

must identify the evidence which is capable of

being corroborated in relation to each accused?

MR MAURICE:  No, Your Honour. One can only say that from

experience that it is routinely done. There is

one authority that is not perhaps weighty in the

way in which it has been cited here,_ Your Honour.

I have given Your Honours a reference to the case

of CULLINANE in the Court of Criminal Appeal in

England, in paragraph (b). I have not been able

to obtain a copy of the times but - - -

MASON CJ:  How do you know it is authority for that

proposition?

MR MAURICE:  I am just about to say that, Your Honour. It

is cited as authority for that proposition in the

supplement to the 41st edition of Archbold,

Your Honour.

C2T76/l /ND	9	8/11/89
Tannous

MR MAURICE (continuing):  The case which comes closest to

making the point which we seek to make is the

decision of the Court of Criminal Appeal in

CHECCONI, which is referred to in paragraph B, and

the leading judgment in that case being that of

Mr Justice Roden who discusses at some length the

requirements of a multi-accused trial, including

in his view a requirement that the question of

corroboration be separately dealt with.	Page 167
at point 5, speaks of:

The importance, in a case of this

nature, or separating out for the jury

the evidence admissible against each

accused, has recently been emphasised

in Victoria (MINUZZO) ..... and in

Western Australia (ROMEO).

And then on the following page, just setting out

the directions as to corroboration which were given

in that case, and they were in the nature of a

general direction - this is page 168, point 5,

His Honour went on to say:

No objection was taken to that as a general statement of the position regarding corroboration

of an accomplice's evidence. However, once

again the particular requirements of a multi-

accused trial appear to have been overlooked.

No reference is made to the need to consider the corroboration question separately in the case of each accused, and there was a resultant

possibility that the jury would think that

evidence independent of the accomplice,

supporting what he said, and tending to prove

that one of the accused was involved in the

conspiracy, could operate as corroboration

for all purposes.

MASON CJ:	Mr Maurice, it may be a convenient time now to adjourn.
We will resume at 9.45 tomorrow morning.
MR MAURICE:	Thank you, Your Honour.

AT 4.50 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 9 NOV-EMBER 1989

C2T77/l/FK	10	8/11/89
Tannous