Tkacz v The Queen

[2003] HCATrans 708

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P34 of 2002

B e t w e e n -

MICHAEL TKACZ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 MAY 2003, AT 12.36 PM

Copyright in the High Court of Australia

MR M. TKACZ appeared in person.

MR R.E. COCK, QC:   If the Court pleases, I appear with my learned friend, MS A.J. BURROWS, for the Crown.  (instructed by Director of Public Prosecutions for Western Australia)

KIRBY J:   You proceed with your argument, Mr Tkacz.  You know you have 20 minutes?

MR TKACZ:   Yes, thank you, sir.

KIRBY J:   We have read the application book and we are familiar with the nature of the case.

MR TKACZ:   Yes, sir.

KIRBY J:   I might say that you have put your case in a very effective way for a person who is not legally represented; you have made it very clear.  So you proceed and tell us what you have to say orally.

MR TKACZ:   Maybe I should say I hope I have presented it well enough that you will grant me my application.

KIRBY J:   That is what we want to hear you on.

MR TKACZ:   Thank you, your Honour.  If your Honours please, I seek two orders of the Court.  First, an order that compliance with Order 69 rule 3(1) be dispensed with because I am out of time.

KIRBY J:   Is there any problem with that, Mr Cock?

MR COCK:   No, your Honour.  The delay is not of consequence to us in these proceedings.

KIRBY J:   Very well.  You have that approval.

MR TKACZ:   Thank you, your Honour.  The second order I seek is that my application be granted.  In support of the application I shall rely principally on my written submissions.  Very briefly, I wish to amplify five points of general importance.  One, the Court of Criminal Appeal erred by taking into account material that it had agreed to not consider, the material being witness statements which had been incorrectly inserted into the appeal book by the Crown.  The second point of general importance is that all three justices did in fact base their respective judgments on the witness statements that they expressly said they would not consider.  But for the depositions referred to by the justices, I submit the appeal by the Crown would not have been allowed.  Three, the court erred by not recalling its perfected judgment when I sought to have it recalled.  The fourth issue of general importance ‑ ‑ ‑

KIRBY J:   That point would not really be possible, I think.  I think the authority of this Court is that once a judgment has been perfected, it cannot be cured by a Supreme Court.  Is that not the law?  This Court has said we can cure perfected orders because we are the end of the line, but that in respect of Full Courts of the Federal system and of the State system, then you have to come to this Court, which is what the associate of the Chief Justice told you when you wrote complaining about the reference to the material that had been excluded and that the judges said they would exclude.  They said you have to come here, and that is what you have done.

MR TKACZ:   Yes, sir.  If I could just maybe draw your Honours’ attention to Pantorno v The Queen at page 474, where Chief Justice Mason and Justice Brennan state:

there seems to have been an erroneous view in some sections of the legal profession . . . that no application can be made to a court of criminal appeal once its judgment is pronounced –

I took that to mean that indeed the Supreme Court, the Court of Criminal Appeal in Western Australia, could recall a perfected judgment.

KIRBY J:   I think there is a later decision called Postiglione v The Queen which says that you cannot have two bites at the cherry in the Court of Criminal Appeal.  What is said there is not inconsistent with recalling an order if it has not been perfected but once it is perfected, then in the name of finality of judicial orders, which have their own authority as an order and which is the ultimate business of courts to make orders, that you then have to go to a higher court to set that order aside in order that there would not be a provisional quality or uncertainty at all times about all judicial orders in case they might be taken back.  I think that is the statement in Postiglione and I think that is the authority of this Court.

MR TKACZ:   Thank you, your Honour.

KIRBY J:   So your third point we can, I think, put to one side.  We understand your first and second points.  What is your fourth point?

MR TKACZ:   Thank you.  The fourth issue is that I was denied a single judge appearance to negotiate the contents of the appeal book, which demonstrates a clear breach of legal process.

KIRBY J:   That is bound up with the consequence of the use of the excluded material, is it not?

MR TKACZ:   Correct, your Honour.  As a result of those four issues, it seems to me that there are very significant issues in this case which, prima facie, clearly demonstrate special circumstances.  One, there has been a serious and substantial miscarriage of justice; two, I was denied procedural fairness; three, there is a serious irregularity in the administration of justice.

The last point that I wish to agitate is that there was no evidence in front of the court that I was a public officer.  Your Honours, there is nothing further I wish to add at this time.  I wish to rely on my written submissions.  Thank you.

KIRBY J:   Thank you very much.  Mr Cock, in relation to the use of the material excluded from the appeal book, it does seem that that was a mistake.  I think you accept that that is so, is that correct?

MR COCK:   Yes indeed, your Honour.  The applicant has put the transcript of the Court of Criminal Appeal proceedings in the application book.  Your Honours will see clearly at pages 43 and 44 that I made it clear that I would not be relying upon that material in advancing our grounds.  Indeed, it was only the Chief Justice in the judgments who in fact referred to the materials.  In our respectful submission, it was not necessary for him to do so in any event.

KIRBY J:   What is your answer to the complaint that on the face of the record in the Court of Criminal Appeal that the applicant has had a judgment made which is affected by, at least in the case of the Chief Justice, the use of excluded material?

MR COCK:   Our response shortly, your Honour, is that the appeal ground which was upheld, ground 1, was able and capable of determination based upon the legal principle that all judges in fact expressed and that even if one was to completely ignore that part of his Honour the Chief Justice’s written reasons dealing with parts of that material, no different outcome than an upholding of the appeal and a remittance back to the District Court for trial would have ensued, and therefore there is no miscarriage of justice as a consequence of the particular material having been considered.

KIRBY J:   I did see the correspondence, which I do not know is relevant to us really, in which you have indicated your intention to proceed with the prosecution of this case.  It seems a very old matter, but it is entirely a matter for the Crown of course.  That is the current position in relation to the matter, is it?

MR COCK:   That is the current position, yes, your Honour.

KIRBY J:   Very well, thank you.

MR COCK:   Thank you, your Honour.

KIRBY J:   Do you wish to say anything in reply to what the Director has said, Mr Tkacz?

MR TKACZ:   Yes, thank you, your Honour.  Indeed, Justice Anderson also referred to the statements, and I would refer your Honours to page 94 of the application book.

KIRBY J:   Yes, I thought it was referred to by someone else other than the Chief Justice; I thought I had read that.

MR TKACZ:   Yes, your Honour, that is correct.  Indeed, I would suggest that Auxiliary Justice Einfeld also referred to it indirectly at page 96 of the application book.

KIRBY J:   He agreed with the draft reasons of the others and to that extent he is to be, I think, taken to agree with the use of it.  He did not point out that this had been excluded.  It is an easy mistake to make because, unless you mark material, with a lot of material passing over your desk you can quite easily make a slip of this kind.  The question that is advanced by Mr Cock is whether it really is relevant to the outcome of your case.  It was a slip, it was a mistake, but did it really affect the critical point on which you lost, which was the interpretation of the Criminal Code?

MR TKACZ:   Your Honour, I would say yes, the reason being that the Chief Justice agreed with the Chief Judge and myself that the definition of “a public officer” according to the Criminal Code of Western Australia should be read conjunctively.  Once he said that, it seems to me that the hurdle that needed to be crossed, or the threshold issue, if you like, was that I had to be a person exercising lawful authority.  It is interesting that the Chief Justice finds that I was a public officer based on the evidence contained in this deposition, yet he failed to take notice of my submissions to the court which very clearly quoted from documentation from Curtin University which said that I was not allowed to spend $15, that I was not allowed to do anything without authority from my supervisor, and that indeed one of the reasons that I lost my position at the university was because I had gone to the vice‑chancellor and had supposedly contacted outside sources.

I had no authority to do any of those things, according to the university, and I found it interesting that the Chief Justice would not refer to

that which was in materials before the court, and yet referred to a statement from someone that he said he would not refer to.  I agree with you, your Honour, it is a mistake but I think a very serious mistake and one which I ask this Court to rectify.

The last comment that I would make, if I could take your Honours to page 2 of the application book at line 7, that is the paragraph on which the Chief Justice, Justice Anderson, and to a lesser extent Auxiliary Justice Einfeld, based their whole argument.  That paragraph was produced by the person who took my job and it was produced by that person one year after I left the university.

KIRBY J:   Yes, we have read all this in your written submission.  We understand that that is your point.

MR TKACZ:   Thank you, your Honour.  Then there is nothing more I would wish to say, thank you.

KIRBY J:   I am not stopping you if there is anything else you want to say, but we have read your complaint about the use of this material because you say this was a person who did not necessarily or at all know what your duties were; he just said what his duties were and they were at a later point of time.

MR TKACZ:   Correct, your Honour.

KIRBY J:   Very well, we understand that.  Thank you very much, Mr Tkacz.

MR TKACZ:   Thank you, your Honour.

KIRBY J:   The first group of points raised by this application concern the construction of the definition of “public officer” in section 1 of the Criminal Code (WA). An appeal challenging the conclusion of Chief Justice Malcolm expressed at paragraph 57 of his reasons and of Justice Anderson expressed at paragraph 67 that, whatever its construction, the applicant fell within it, is, in our view, unlikely to succeed.

The second group of points raised by the applicant concern an agreement in the Full Court that certain pages of the appeal book should be excluded from consideration.  The applicant complains that, in fact, the judges relied on those pages.  It is accepted for the respondent that it had been agreed that the pages were excluded from the record.  However, no error was committed which is likely to lead to a successful appeal since the reference by the Full Court judges to the material was not an essential part of their reasoning on the point of construction.

A sufficient factual context had been presented, quite independently of the excluded material, in the proceedings before the primary judge and in the propositions which were common ground in the argument in the Full Court.  It is for these reasons that we are of the view that special leave should be refused.  We would cure the time default but dismiss the application.

The Court will now adjourn to be reconstituted.

AT 12.51 PM THE MATTER WAS CONCLUDED