Sinanovic v The Queen S175/1995 [1998] HCATrans 210 (2 June 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S175 of 1995

B e t w e e n -

HAKIJA SINANOVIC

and

THE QUEEN

Respondent

Ex parte application for leave to issue process

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 JUNE 1998, AT 11.03 AM

Copyright in the High Court of Australia

HIS HONOUR: You are Mrs Sinanovic.

MRS M.A. SINANOVIC: Yes, your Honour.

HIS HONOUR: And you have been given leave, I think, or you were given leave on the previous occasion by Chief Justice Brennan and Justice Callinan to appear on behalf of your husband who is in custody. Is that correct?

MRS SINANOVIC: That is correct, your Honour.

HIS HONOUR: Is he still in custody?

MRS SINANOVIC: He is still in custody.

HIS HONOUR: And I think your leave to appear for him was continued by Justices Gaudron and McHugh, when the matter came before them.

MRS SINANOVIC: That is correct, your Honour.

HIS HONOUR: And you ask leave today to be heard on behalf of your husband?

MRS SINANOVIC: I am seeking that.

HIS HONOUR: Very well. Have you spoken to your husband and indicated you intended to make this application on his behalf?

MRS SINANOVIC: He is aware that this application is proceeding through the High Court. Though, your Honour, I must have to advise the Court that he is not aware of the contents that I will be producing to the Court.

HIS HONOUR: Does that not create a difficulty for me, that I am only really supposed to deal with matters that are relevant to a party and he is the only party, not you?

MRS SINANOVIC: That is exactly what my argument is, and my argument is based actually under the international law, the common law of a denial of nature justice.

HIS HONOUR: Yes, I have seen that but the preliminary question is whether you can be heard to speak for your husband who is the party affected who does not know what you are going to say to me. Can you not telephone your husband or visit him and speak to him about these matters?

MRS SINANOVIC: He is in Junee Correctional Centre.

HIS HONOUR: Do you not have a facility to speak to him by telephone every now and again?

MRS SINANOVIC: There is the facility but the facilities are monitored. They are actually listened in. I put an application to the general manager that I am actually discussing legal matters. To date, I have not received a response but I have been - - -

HIS HONOUR: But would it matter that you say to your husband, "Look, I want to speak to the High Court and I want to raise the question of the effect of international law"? I mean, who cares whether the director hears it? I know you would prefer not to have somebody listening to your conversation, especially about a legal matter, but otherwise, you see, the problem is I find it very awkward to hear you if your husband does not even know what you are going to say. Normally, a barrister or a solicitor takes instructions.

MRS SINANOVIC: Exactly, your Honour.

HIS HONOUR: And puts a matter to a court on the instructions of a party. You are not doing that. You are merely making your own submissions and you are not the person who is in prison.

MRS SINANOVIC: That is part of my submission to your Honour. The difficulty that has arisen - and it is not only affecting this application, your Honour, it is actually affecting every matter before the Court. That is the reason why this application is in this Court. It is in relation to the matter that was before the Justices Gaudron and McHugh. I am raising issues in regards to that. In relevance, there are other issues in which it is affecting his position in custody.

HIS HONOUR: I am sure that is so but there is a preliminary question. I am perfectly happy to allow you to speak for your husband. I have no problem whatever with that but I am not happy with you making submissions on behalf of your husband that your husband has no knowledge of and has not authorised you to make. It would never happen in the case of a lawyer, a solicitor or a barrister. It would never happen, and I do not see why it should happen in a case of a person who is appearing for an unrepresented party, even by his wife.

MRS SINANOVIC: I understand your Honour's view and I accept that. But I am also in a difficult position myself. The fact, firstly, where he is. Secondly, I had raised this with his Honour Chief Justice Brennan. The ongoing difficulty with Corrective Services and the way that - - -

HIS HONOUR: It may be a difficulty for them but it is a bigger difficulty for me to let a person - I mean, look at it this way: assume that a party and his or her spouse or partner were having a dispute and they were in custody and then somebody comes off the street and comes in here and makes submissions to the High Court of Australia. It would be a monstrous thing that the Court could make orders that affect the rights of that person without being sure that that person knew what was being done and authorised it, because otherwise I am adding to the burdens of imprisonment, a further burden, that the person is not here and is having things made on their behalf by somebody who tells me that the prisoner does not know and has not authorised it. I will not add burdens to prisoners. They have burdens enough according to law.

MRS SINANOVIC: Yes. Your Honour, I have taken steps to try and bring Mr Sinanovic to Sydney.

HIS HONOUR: Yes, I am sure you have but leave that aside, you have not done the most essential thing which is to seek his authorisation. There are, after all, letters. You do send faxes. I have seen them in the file.

MRS SINANOVIC: Yes.

HIS HONOUR: And there are telephone facilities. They are not perfect because they may be monitored.

MRS SINANOVIC: Yes, they are, and they are very limited, I might add, your Honour. They are only a very short time and it is not something - - -

HIS HONOUR: That may be so but this is a very urgent and important matter, in your eyes. It just does not seem to me right that you can come here and make a submission that your husband does not know you are making.

MRS SINANOVIC: In my importance, your Honour - I had spoken to Mr Sinanovic. He is aware that this application is proceeding. He has authorised me to do it because it was on his instructions to do this matter.

HIS HONOUR: I am sure, but does he know what you are going to be submitting, in general terms?

MRS SINANOVIC: Well, in generalisation, I explained it to him there are going to be arguments of international law but the actual contents of the documentation, the reading through of every documentation, your Honour, you can understand, it would be quite impossible to do that in a very short limited time, in limited phone calls to Junee Correctional Centre, bearing in mind the cost involved because that is also an issue. There are also particular times that phone calls cannot be made. They are all relevant issues which just hinder - - -

HIS HONOUR: The cost would just be the ordinary costs of STD calls, would they not?

MRS SINANOVIC: Yes, it would be the ordinary costs of STD - - -

HIS HONOUR: How long can you speak for?

MRS SINANOVIC: I think they are - they have got to book a call. I cannot ring him. That is the way the rules are. I am not in a position and we are not allowed to ring the prisoner, therefore it is up to the prisoner to make applications to book the phone call and then if it is granted then the phone call can be made.

HIS HONOUR: But if you were to send a fax asking that your husband telephone you in relation to an application on his behalf before the High Court of Australia, it is very unlikely that the prison authorities would not facilitate his contact with you, given the history of this case.

MRS SINANOVIC: Yes. Your Honour, that would be the discretion of the Governor or the General Manager.

HIS HONOUR: Yes, it might be, but the inference I would be willing to draw would be that it would be a discretion exercised in favour, given the history of this case.

MRS SINANOVIC: Yes, you would assume that they would, that they would allow a phone call but it would be only just a limited amount of time because, bearing in mind, your Honour, it is a very big gaol, Junee Correctional Centre. In the whole facility of the gaol there is only two phones.

HIS HONOUR: Yes. But, anyway, you have - - -

MRS SINANOVIC: So, they have sort of got to limit their phone calls to about five minutes.

HIS HONOUR: Are you satisfied that the matters that you are going to say to me today are within the authority which your husband has given you by your conversation with him?

MRS SINANOVIC: I say that it is within his authority to do so. Why I hesitate, your Honour, is that I do not feel comfortable that these documents have been read fully to him prior to me commencing this application. I do not want to delay this matter - - -

HIS HONOUR: No, but you have explained the sorts of things that you want to raise, is that correct?

MRS SINANOVIC: Sorry?

HIS HONOUR: You have explained to him the kind of matters that you wish to raise.

MRS SINANOVIC: Yes, the kind of matters, yes, that I would raise. But I have not - - -

HIS HONOUR: And he was quite happy with you doing that?

MRS SINANOVIC: I have not been able to, overall, do the whole lot. I have only sort of, as you can understand, pointed out certain parts of it. It is a generalisation, I suppose the word would be a much better - - -

HIS HONOUR: But do you feel you have his authority to say what you are going to say to me on behalf of him?

MRS SINANOVIC: Yes.

HIS HONOUR: And you believe that he authorises you fully to say what you are going to say?

MRS SINANOVIC: I believe so, your Honour. I would be - it would not be a position where he would say, no, but I suppose I have to be careful in my position that what I do put to the Court that he is absolutely satisfied, because there may well be more that he would like added to the matter. There may well be matters he prefers not to raise.

HIS HONOUR: Yes.

MRS SINANOVIC: You can understand the difficulty when there is not a conference, your Honour, where you are actually sitting down, you are agreeing - - -

HIS HONOUR: But you can visit him at the prison, can you not?

MRS SINANOVIC: No. That is my other - - -

HIS HONOUR: Are you not allowed spousal visits?

MRS SINANOVIC: I have to explain my situation in regards to entering the Junee Correctional Centre. I am in a position where I have been granted a special exceptional circumstances by the Minister to enter the MRRC at Silverwater Correctional Centre whereby I am granted leave to enter the correctional centre without supplying my address, but the Governor and the Minister - I apologise - the General Manager and the Minister has my personal address. These were based on special circumstances with the assistance of recommendations by District Court judges, but it took quite some time - it took over three months for that to be granted, so for three months, your Honour, I never saw him and I never spoke to him on the telephone because that was not granted.

I have only got that facility in the Silverwater Correctional Centre. I do not have that facility in any other correctional centre. I am at a hindrance in that position. Bearing in mind there is also the availability to get down there; the cost involved. I suppose if one does not have a car to bring down so much documents, even if I was to do it at the correctional centre, I would have to do two or three trips to bring all the documents in.

HIS HONOUR: Yes. Well, I understand all these difficulties but you must understand that this is the highest Court in this country. We are extremely busy. We have a lot of cases involving a lot of people; people all over the Commonwealth, and we just have to be very efficient in the way in which we deal with matters, so that you cannot just come in here and expect matters to be an ongoing saga like "Blue Hills", it is a matter of presenting Mr Sinanovic's case proficiently to the highest Court in the country. I do not think you fully appreciated that, Mrs Sinanovic

MRS SINANOVIC: Your Honour, I do. I will say to you that I do. In fact, I wanted to even raise in one of my submissions that the procedures of what is going on in regards to the correctional centre, I find that they may well be held in contempt for obstructing justice in preventing matters - - -

HIS HONOUR: We do not have any proceedings for contempt before me today so let us concentrate - - -

MRS SINANOVIC: No, but your Honour can understand, not only in any judicial court - Mr Sinanovic is in a position where he has no right to leave the place, that one can say, "Yes, you can come here", or in a position to say, "Yes, I can get access - - -"

HIS HONOUR: That is the nature of imprisonment I am afraid.

MRS SINANOVIC: Your Honour, but if affects the procedure and by affecting the procedure, affects the denial of justice of that prisoner. In turn, affects the procedures of matters going through the courts. So, it is like a relevance of one procedure affecting another and if we do not solve the problem right at the core it is just a matter that will continue.

HIS HONOUR: Yes. Well, I think you seem to think that I can solve all the problems of the prison system. I cannot do that. All I can deal with are cases that are before me.

MRS SINANOVIC: Your Honour, I am doing the best that I can.

HIS HONOUR: Yes, I am sure you are. I understand that you are acting for your husband.

MRS SINANOVIC: As you can appreciate, your Honour, I have written to the Minister. I have also raised these concerns with the Attorney-General's Department if he would appreciate to bring these specific matters, these concerns to the Minister's attention himself. I have requested that personally.

HIS HONOUR: Yes. Well, that is a different matter. I am now going to deal solely with the issues that are before me on the notice of motion that you have placed before the Court and in light of what you have told me, notwithstanding some initial hesitation on my part, I am prepared to accept your assurance that Hakija Sinanovic, the applicant, is aware, in general terms, of the application that you are making on his behalf today, approves of the matters that you are going to put before the Court and, in effect, asks you to put those matters on his behalf, he being in custody in the Junee Correctional Centre, to the Court for him.

So that the first thing to do is to get the record in order. There is an affidavit, I think, that you have sworn in support of this motion, is that correct?

MRS SINANOVIC: That is correct, your Honour.

HIS HONOUR: What is the date of that affidavit?

MRS SINANOVIC: There are two affidavits. One is dated - the first one is dated 17 March 1998.

HIS HONOUR: Yes, and you read that affidavit, do you? Formally, you ask me to read the affidavit?

MRS SINANOVIC: Yes, your Honour.

HIS HONOUR: And the second one is dated 23 April 1998, and both are affidavits by you?

MRS SINANOVIC: Yes.

HIS HONOUR: And you ask me to read both of those affidavits?

MRS SINANOVIC: Yes, I do.

HIS HONOUR: I have read both of those affidavits. Do you have any other material that you wish to place before me?

MRS SINANOVIC: Your Honour, yesterday I lodged some materials in regards to the United Nations International Law. Has your Honour received those?

HIS HONOUR: Yes, I have those materials.

MRS SINANOVIC: I will be making some reference to those particular parts in there.

HIS HONOUR: Yes. These are the documents that have on the cover sheet: "Human Rights - International Instrument - United Nations"?

MRS SINANOVIC: That is correct, your Honour.

HIS HONOUR: Yes. Well, I have all that. Is there any other material that you want me to read?

MRS SINANOVIC: It may well be in my submissions. I might be drawing some inferences in regards to other matters as an overall discrimination - - -

HIS HONOUR: Yes. Well, I should say that I have in the Court file a couple of documents that it may be useful to place before me. One is the transcript of the proceedings before Justices Gaudron and McHugh, dated 13 March 1998. Do you have any objection to having that document before me?

MRS SINANOVIC: No, no objection, your Honour.

HIS HONOUR: And another is the transcript of the argument before the Court when it was constituted by Chief Justice Brennan and Justice Callinan on 13 February 1998. Do you have any objection to my having that?

MRS SINANOVIC: No objection, your Honour, no.

HIS HONOUR: And I think there was an affidavit dated 11 March 1998 by Mr Peter Singleton, solicitor?

MRS SINANOVIC: Yes.

HIS HONOUR: Which was before Justices Gaudron and McHugh.

MRS SINANOVIC: That is correct. I have no objection for your Honour to read that.

HIS HONOUR: Very well. Well, I read all of those documents.

MRS SINANOVIC: May I also hand up, your Honour - there is another declaration of the human rights of individuals - of nationals of a country in which they live. I may be having reference to that too, thank you.

HIS HONOUR: Well, I receive the Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they Live. This is a declaration which was adopted on 13 December 1980 of the General Assembly of the United Nations. Yes. Well, I think it is fair to say you have 20 minutes as from now.

MRS SINANOVIC: Your Honour, I may not be able to argue everything in 20 minutes.

HIS HONOUR: Well, do your best, please, because I have other things to do.

MRS SINANOVIC: I was advised that I may not have a time limit on this matter. Therefore, I really have quite a lot to - - -

HIS HONOUR: Well, you do not have a strict time limit but there is an effective time limit because of the pressure on the Court. So, just do the best you can.

The fundamental problem you face is that the matter was before two Justices of the Court, properly constituting the Court, on 13 March 1998 and they refused you an adjournment on that day, exercising their discretion, and they then proceeded to deal with the substance of the matter. They obviously knew about the case from reading the transcript. They referred extensively to the issues in the case and in the courts below and they considered that there was no substance in your husband's application and concluded with the words:

We are of the view that there is no error in the judgment of the Court of Criminal Appeal and, moreover, that there has been no miscarriage of justice in this case. Accordingly, special leave is refused.

Now, it is on that basis that the proceedings have been treated as having come to a close, and when you sought to file process in the Court by way of this notice of motion, Justice Gummow, on 23 March 1998, ordered that the process not be issued without the leave of a Justice of the Court and that is why the matter is before me now. So that, formally, this is an application by you for leave that the motion should be set down for decision to set aside the decision of Justices Gaudron and McHugh. Do you understand all that?

MRS SINANOVIC: Yes, I do.

HIS HONOUR: Very well.

MRS SINANOVIC: Your Honour, my submission is, in regards to this: referring back to the affidavit of Peter Singleton, dated 11 March, and filed, if you refer to my letter - prior before I go there, your Honour. In the transcript of Justices Brennan and Callinan, I had a notice of motion before their Honours to have the matter adjourned on the basis that Mr Sinanovic was denied access to his legal documents and that was a denial of natural justice.

Now, I would like to raise one thing. I did not raise that in the application but it was to the understanding that their Honours agreed that there was a denial of natural justice. This application, prior to ever being commenced in the High Court - your Honour, Mr Sinanovic was in custody. I had endeavoured on so many occasions to bring to the attention of the correctional centre that justice cannot be done if an illiterate prisoner is denied access to his documents because he has no knowledge of what is being filed.

HIS HONOUR: I think you put this to Justice Brennan and Justice Callinan, and then you put it to Justice Gaudron and Justice McHugh, so they understood the point and they do not seem to have considered that in this particular case it required either the adjournment of the matter or that the application should succeed.

MRS SINANOVIC: Your Honour, prior to even this matter proceeding in the High Court, I advised - when there is an actual mention before commencement of proceedings in the High Court, I was present at those proceedings and it was, I believe, a Senior Registrar - not Mr Millar - there was another gentlemen, and the Crown, Mr Kavanagh present. I had advised them of the situation that Mr Sinanovic would not be able to have access - and I am not getting instructions prior to me filing and proceeding with this application. I was therefore told, "Well, you will just have to do it the way you fit best", so I proceeded on that basis.

I had attempted in many occasion in the lower courts to bring it to their attention the difficulties that is arisen because it not only affected this matter, your Honour, it affected every matter before the courts. Therefore, that is the reason why I am raising the discrimination and the abuse of the international law, whereby one has to be treated equally before the law, and that is not occurring, until today. Procedures are still going in that direction.

It was not until, for the first time, that I had brought this to the attention - and you can understand, your Honour, in the High Court, there is no section 44 to bring the actual prisoner in for himself to explain to the High Court what actually is occurring, and the High Court mainly deals with legal representation and the Bench. So matters, probably, in this regard very unlikely would ever be brought to the attention of the High Court. Firstly, if there is no assistant, a person who is illiterate would not even be in a position to bring it to the High Court to advise them that this is going on.

HIS HONOUR: But do you understand that there about 15,000 prisoners in Australia. Quite a significant number of them would have literacy problems. Many of them are people from other countries and many of them do not have lawyers. It just would not be feasible, it could not be done, for this Court to bring them all before the Court, when they wanted to make an application to the Court, and security problems would be significant in some cases, so it just cannot operate in that way and that is why we have the procedures which we have.

MRS SINANOVIC: That procedure, I understand, but - - -

HIS HONOUR: What I think, reading the papers, you have not fully understood is that all the lawyers of this country have to discipline themselves and act within very, very severe time constraints because of the pressure on the Court. You seem to think, with respect, that you can just come along and ask for adjournments and proceed in a particular way and, no doubt, this is out of love for your husband, but the Court cannot operate. We are the final Court in the country, and I do not say that boastfully but just out of the fact that as was said a couple of weeks ago, "the buck stops with us". We have to ration our time.

MRS SINANOVIC: Yes, I understand that, your Honour.

HIS HONOUR: Because we are seven human beings who have 24 hours each, no more, and most of us work six or seven days a week and there just is a limit.

MRS SINANOVIC: But there is also the consideration of what the judicial law is in regards. I mean, this is why we have the courts, your Honour, and we have to assist - - -

HIS HONOUR: That is true, and that is why you get your time but a limited time, and matters cannot just be adjourned.

MRS SINANOVIC: Your Honour, the time would be limited - time could be limited if the procedures and the laws were abided by. You must understand that one seems to think that they are wasting time getting to the higher courts but if the laws were abided by in the lower courts where there was no discrimination, one would not even need to come to the higher courts because that is the reasons why - - -

HIS HONOUR: Well, the Judges who have dealt with the matter - Justice McHugh and Justice Gaudron, dealing with the matter, did not seem to think that the disadvantage that your husband suffered was relevant and that, any way, when they looked at the substance of the matter, there was no substance in it. Justice McHugh said this at page:

Evidence was given by bank officials. If we get down from the high-flown theory to the facts of this case, it is an identity case plus your husband's explanation that in obtaining this money for these foreign notes he was not aware that they were no longer in legal circulation. The jury disbelieved him on both accounts and found he was guilty beyond reasonable doubt.

Now, Justice McHugh says, "Don't worry about the high-flown international covenants and the rights of illiterate people, your husband had an explanation. He put that to the jury and they disbelieved him."

MRS SINANOVIC: See, your Honour, this is the other thing that I want to raise in regards to this trial. This trial has never been argued in the Supreme Court at all. Now, I cannot find fathom in a court saying one would not be disadvantaged if one did not have the transcript. The fact that when their Honours said to me, "Well, you did 10 pages" - now 10 pages, your Honour - it was done by memory. Now, this is where I am arguing the equality before the law. Where is the equality when you have got - you do not find a judicial officer sitting on the Bench and, in fact, judicial officers require documentation prior in front of them to be able to assist them to reach a decision and a proper judgment. The Crown is also in that position. He must require his documentation to proceed in all fairness before the court. Therefore, where is the substance in the argument in saying the appellant, the defendant, the accused, the applicant could not be disadvantaged if he does not have his documents? In essence, really, one - - -

HIS HONOUR: The Court of Criminal Appeal had the documents and Justice McHugh, at page 8, said that they had written submissions from your husband and that "those written submissions, although diffuse, made clear the substance" of his complaint. He lists those and says the Court of Criminal Appeal held that there was no substance in those complaints. So that, essentially, what Justices Gaudron and McHugh seem to be convinced of was that when you got away from what was called the "high-flown theory" and you got down to the practical realities of this case, the issues were tried before the jury and they disbelieved your husband and convicted him. And the Court of Criminal Appeal had written submissions, understood the points that were being raised, and that your husband's illiteracy had nothing to do with the case. It is just a smoke screen designed to find a ground, which is perfectly understandable, to raise to have your husband have his conviction set aside.

MRS SINANOVIC: How can your Honour justify in substantiating if one does not have the transcript to raise to the Court of Criminal Appeal any errors made in law by the District Court judge?

HIS HONOUR: The Court of Criminal Appeal would have had the transcript.

MRS SINANOVIC: Yes, but not the appellant. The appellant is the one who has to put the grounds of appeal and then do the submissions - - -

HIS HONOUR: But apparently he put in written submissions which gave the essence of his - - -

MRS SINANOVIC: Your Honour, he had no choice. I mean, the Registrar said you have got to do grounds of appeal. If you do not have the transcript, obviously you have got to go by what position you have been placed in. The reality is you cannot - and unless your Honour can satisfy me how one could be fairly to point out, for example, in the summing up, point out those relevant points of laws that may have been in error. For example, your Honour, there is - - -

HIS HONOUR: I do not want to be rude, but I do not have to satisfy you; you have to satisfy me.

MRS SINANOVIC: I understand that, and I apologise - I withdraw that.

HIS HONOUR: No, no, there is no reason to apologise, but I think it is important that you understand that we are coming to this matter when it has been heard by the Court and the Court refused your adjournment, went on and dealt with the matter, and the two Justices, for reasons which they gave, said that your objections were "high-blown theory" and that when they actually got to the nitty-gritty of the matter, there was no substance in it.

MRS SINANOVIC: We had no transcripts to be able to point out particular - - -

HIS HONOUR: By that stage you had a transcript.

MRS SINANOVIC: No, we did not have the transcript, not of the trial that went - - -

HIS HONOUR: I thought by the stage you were before Justice Gaudron and Justice McHugh that, by the reason of the interventions of Chief Justice Brennan, the transcript had been made available to your husband.

MRS SINANOVIC: Of the second trial, yes, they were. They were made available. Now, they were made available, your Honour, and I might add this. When his Honour Justice Brennan made the direction to the Crown to inquire about it and arrange for something to be done, I was granted one month adjournment. Now, your Honour can see in my letter on the second one, dated 3 March - this is in the affidavit of Peter Singleton:

I acknowledge receipt of your letter. In regards to our first telephone conversation on 16 February 1998 -

Now, that is the Monday after the Friday whereby the matter was adjourned. So I spoke to Mr Singleton -

whereby I urgently rang you requiring your assistance in regard to his Honour Chief Justice Brennan's orders.

Now, Mr Singleton said, "I'm not going to do anything" - - -

HIS HONOUR: All of these matters were put before the Court constituted by Justices Gaudron and McHugh.

MRS SINANOVIC: My argument is, your Honour, that I was left right at the last - - -

HIS HONOUR: The Court has already decided that matter.

MRS SINANOVIC: My submission is that - - -

HIS HONOUR: Just look at it this way: we work under these pressures; we have thousands of cases coming up to the Court. If everybody who felt that they did not have their matter dealt with as they wanted it could come along, after a special leave application was refused, and say, "I want, by my motion, that the decision be set aside and that the matter be started again." I mean where would our justice system be?

MRS SINANOVIC: Your Honour, I would not say that that should be done and I agree with you, that should not be done. But one has to look at the circumstances placed before them in the sense that I was left one week - the arrangement was not done till one week prior to the hearing. Now, there is a very big difference - and you must understand this - the direction was done by his Honour to the Crown to immediately do this. That was not done. It took me, your Honour, to do the telephone calls to the Crown, to write to the Crown, "Please, would you do something."

HIS HONOUR: It may be, but you got them.

MRS SINANOVIC: I got them, what, one week prior to hearing.

HIS HONOUR: Some people - barristers get cases an hour before the case. In the old days, with legal aid, there was a so-called dock brief and the prisoner was sitting in the dock and a barrister was acquired and had to represent a prisoner sometimes on murder cases, capital cases. We are not as brutal as that, but my essential point is all of these matters were put by you before Justices Gaudron and McHugh. You are only rearguing those matters.

MRS SINANOVIC: There are some things I need to raise in regards to that. In your Honour's submission in regards to people - legal representations being placed at the last minute to do matters, that also happened in this particular matter in - actually in both trials. Both representatives were not prepared in this case and they were just forced on to do them on the Monday morning. The adjournment was denied. One has to look at the balance of the people that are placed in front of them. I can understand that your Honour has of the view that the matters must proceed. That is correct. I am not in dispute with that. But what I am asking your Honour is to look at the view of the person. Is the person that is placed in an application before your Honour, has the availability, the accessibility, the research to be done in an application, on the same basis as the Crown.

Now, if you look at a person who is not legally qualified, you cannot draw the conclusion that this person can just get up and throw cases, probably in a position as the Crown would.

HIS HONOUR: I understand that, and maybe if I had been there on 13 March I might have had more sympathy for it, but the Court was constituted and it was constituted by two Justices of the highest Court in the country and they refused to allow the adjournment. They pressed on with the matter on the basis of its merits and in the two passages which I have mentioned, Justice McHugh said both at trial and in the Court of Appeal there was no substance.

MRS SINANOVIC: Because, your Honour, I was not prepared that day. That is the reason my argument - - -

HIS HONOUR: But what happens if every time somebody was not prepared they could come back and say, "We want to come back and have another go."

MRS SINANOVIC: No, your Honour, it is not a question of having another go. It is a question of - I would not want to use the word "common sense", it is the understanding, I suppose is the word, understanding of who is in front - this is where the international law says one must be equal, treated equal before the law. My position, your Honour, in opposed to the Crown or in opposed to the judicial officers who sit on the Bench, is I have no one to direct me on which direction of law that I have to do. I subsequently will have to go through so many legal books to have the direction of what the case I have to put to you, according to what Mr Sinanovic's instruction is. In regards to the Crown's case, the Crown has the availability there right in front of him. There you have your imbalance. When there has got an imbalance before the courts, the courts must - - -

HIS HONOUR: I think you made this point to Justice Gaudron and she pointed out that that was always going to be so in relation to prisoners.

MRS SINANOVIC: Then, your Honour, are we having a balance of justice? Are these prisoners - - -

HIS HONOUR: The Court makes endeavours to equalise the disadvantages but it is just the nature of any system of justice, and not only in this country, that where you have experienced repeat players, such as the prosecutors, and new players, such as the prisoners if they are represented, there is a disadvantage and that is just inherent in any system of justice.

MRS SINANOVIC: And it would not be a breach of law, of not equality before the law, that is handed down in the instrument of the covenant?

HIS HONOUR: The covenant is not part of the domestic law of Australia. It is not part of the binding law in this country.

MRS SINANOVIC: Would it come under the common law?

HIS HONOUR: But even so, there is equality in the sense that the judges are supposed to make sure that the situation is balanced up and that each of them comes to the seat of judgment equally.

MRS SINANOVIC: Yes, yes, and if one puts to the court that one is not in that equal balance of judgment before the court, would the court not be in error in forcing the person on. Also, would the Crown not be in error to oppose the application, knowing full well that their opponent is in this disadvantaged situation of not fairly proceeding with this matter. I can raise, for example, your Honour, this is the case of the Wik Case - there has been public criticism of the High Court - and please correct me if I am wrong, your Honour - in regards there was a delay in handing down the judgment in the Wik Case. There was some public criticism in regards to that.

HIS HONOUR: There was criticism by a few politicians.

MRS SINANOVIC: Yes.

HIS HONOUR: I would not say there was public criticism.

MRS SINANOVIC: It was actually on the ABC a few weeks ago, on the TV, they did a documentary on the highest Court, and there was also another documentary in an interview in Late Line with his Honour Justice Brennan. One can understand the High Court wants to make research, wants to be able to, prior to handing down a judgment, to be able to have that time and facility to ensure that the research that they did is correct. Because obviously, to put down a judgment, one must be sure that every avenue of research is concluded before a decision is handed down.

The same applies to us. If we want to proceed through an application, whether it is in a local court, a summary matter, a District Court, an appeals court, we also, as to be treated equally before the law, would like to have that same position, bearing in mind what kind of position because obviously, if there is a Queen's Counsel arguing what I am saying, your Honour is going to say, look, you are quite ridiculous. Queen's Counsel has great knowledge, has experience, expertise in law, has the accessibility - if there is a problem that one does not understand - and I am sure even amongst the judicial officers you converse with one another to get a bit of guidance, a bit of direction. In the end it is your decision but you have that opportunity there and in the basis, the finalisation issue, do a correct decision.

The same thing is what we are requiring down here as applicants in front of the Court. In my submission your Honour, the fact that it was left at the last minute - and I say at the last minute - to have these matters done. Secondly, I did not - and I did put it in my letter - if I could only refer to - yes, my letter dated 17 February. I requested the Crown to send the first trial's transcripts. That was not included, and I asked the Crown, by conversation. He said, "I'm not going to send them." I can understand why, your Honour, because there was a particular argument in that case and I am still researching this matter; not to think, your Honour, that I have abandoned it. I have now come across certain other arguments raised in this application whereby, in regards to a law of Whitehorn v Reg, whereby the Crown did not call a witness, a very crucial witness that was in the committal proceedings, and that is the witness that would, your Honour, in the submissions in the respondent's summary, matter No 3, it would relate to the part:

The Office of the Director of Public Prosecution continued to prosecute when there was no evidence of criminal conduct.

HIS HONOUR: But what is the point that has arisen since the matter was before Justices Gaudron and McHugh?

MRS SINANOVIC: The point, your Honour, is that there has not been that correct facility to prepare this application. It has never been a proper facility to do so. It was not until I had to appear in a notice of motion before the Chief Justice and Justice Callinan to bring it to the High Court's attention that matters are proceeding that the applicant is not aware of the contents of the documentation. You can see in his Honour Chief Justice Brennan's comments, he makes a comment at 170:

One could understand that policy very clearly, Mrs Sinanovic. The question of whether some arrangement can be made to ensure that, on the one hand, appropriate security is maintained in the maximum security centres and, on the other, that those who have a right to apply to the courts can do so meaningfully is no doubt a problem of great difficulty but it is one that, I think, this Court would need to be satisfied about before proceeding in a case where it appears an applicant has no knowledge of the case that is to be made either on his behalf or is to be made against him.

And for that reason the adjournment was done. So you can understand, your Honour, how a person in that position would feel discriminated; does not feel equally before the law because he has been taken away that opportunity. It took me to come to the High Court to bring this to the High Court's attention. That is a denial of natural justice. And not only did it apply in this application, but is also applying in the local courts.

Your Honour, one can say, even as a common law right, as fair justice between one and the other, that one must have that opportunity. For example, your Honour, there is the appeals. I raise this. The appeals are not going to go on, your Honour, because the Registrar is refusing to accept the grounds of appeal because Mr Sinanovic has no knowledge. Mr Sinanovic, until today, your Honour, has not had no knowledge of what is in the transcripts of his trials, til today. I have made submissions, I have made bail applications, I have been told, "Mrs Sinanovic, it is unreal for your husband to know word for word what is in the transcript." So my argument is, it is fine for the District Court judge, he must have the documentation in front of him, because that assists him to know and to proceed fairly with the trial. It is fine for the Crown to have the documentation, so he may be in a very fair position to proceed to prosecute. But it is not fair that one could accept could there be fairness that the defendant or the accused does not have his documents to proceed fairly with the trials, to the effect, your Honour, the appeals cannot even go on because he cannot even get access to the knowledge of what was in those documents.

HIS HONOUR: Yes. But I can only repeat, the appeal application did go on and it was heard by Justices Gaudron and McHugh on 13 March. That is the constitution of a Full Court. It was heard by two Justices. Here I am sitting as one, asked to approve the issue of a motion which would seek to set aside that decision of the Full Court and, when I look at it, you argued the question of the adjournment and that you had not had enough time and that was refused by Justice Gaudron at page 4 of the transcript. Then the Court took you into the substance of the matter and Justice McHugh said that if you come down from the starry heights and high-flown theory the case was just an identity case and the jury convicted your husband; apparently convicted him twice, in the earlier trial as well.

MRS SINANOVIC: Your honour, but that, when it goes to the point of where there are errors made by the trial judge. May I raise this also, your Honour. In a Supreme Court, one has allocated a large amount of time to argue a case. That is the position in the Supreme Court.

HIS HONOUR: I sat there many years. I know.

MRS SINANOVIC: One can put "I need a day to argue this case." Now, in the High Court you only have 20 minutes.

HIS HONOUR: And that is because of the pressure on the Court. Already we have been here for half an hour, more than half an hour, so effectively you have had more than twice what a normal prisoner gets in being heard before the High Court. I keep taking you back. I know this is very frustrating for you and I am sure your husband is at a disadvantage because of his speaking a different language as his first language, and also you say that he is illiterate and I am happy to accept that, but the fact of the matter is that everybody has to conform to the same rules. Those rules bring you before a Court constituted by two or three Justices. You got what was really an exceptional facility. I have not seen it done before by the High Court. That was the order that the matter be adjourned and that you get the transcript. Now, I agree that a week is not very long, but it is longer than many barristers get and it is longer than almost all prisoners get. So you got the week. It came up, you asked for another adjournment and that was refused. Then when the Court looked at the substance of the matter, they said, "Come down from the mountains and have a look at what the case was really about, and both at trial and on appeal it had no substance."

MRS SINANOVIC: Your Honour would agree if this matter had proceeded fairly, in the sense of by legality, firstly in the Supreme Court, it may well not have got to the High Court.

HIS HONOUR: I do not agree with that, because the Supreme Court felt that there was no substance in your husband's appeal, the second appeal.

MRS SINANOVIC: Your Honour, because there was no transcripts to point out the errors of the law. There was for example, I think, Justice McHugh mentioned something about the laws on identification. I did not have that much time to even get into that particular part.

HIS HONOUR: Did you argue the matter in the Court of Criminal Appeal for your husband?

MRS SINANOVIC: No. See, this is - - -

HIS HONOUR: But you prepared, presumably, the written submissions?

MRS SINANOVIC: Based on a memory, your Honour. That is what it was.

HIS HONOUR: And they were put before the court. Justice Allen said, in the Court of Criminal Appeal, that:

The appellant was represented at his trial but appears in person before this court. The court has written submissions from him which, although diffuse, make clear the substance of his complaints.

So they felt - - -

MRS SINANOVIC: Well, this is the substance of his complaint. But, really, in the Court of Criminal Appeal is really on the basis of arguing where there are errors in the District Court.

HIS HONOUR: Yes. I understand. I am sure your husband would have been better off if he had had Mr T.E.F. Hughes, QC, and the transcript, but that is not something that the courts can require.

MRS SINANOVIC: And your Honour does not feel that that would be in breach of an international law as a person of being disadvantaged before a court?

HIS HONOUR: Well, even if it were, that is doing that I can do about that because the international law you refer to, which is the International Covenant on Civil and Political Rights, is not part of the domestic law of Australia. It is a treaty our country has subscribed to but it is not part of the domestic law.

MRS SINANOVIC: May I refer to a part, your Honour - I believe - the International Human Rights Instrument, HRI, page 42, 177, the "Human rights treaties".

HIS HONOUR: Yes.

MRS SINANOVIC:

Some judges are of the view that "a relevant source of guidance in the statement of the common law ... may be the modern statements of human rights found in international instruments".

HIS HONOUR: Where is this?

MRS SINANOVIC: On page 42 of the HRI, which is the International Human Rights Instrument, at 177.

HIS HONOUR: Yes, 42.

MRS SINANOVIC: The:

Human rights treaties are also relevant to the exercise of administrative discretions and as material referred to in developing the common law. Some judges are of the view that "a relevant source of guidance in the statement of the common law ... may be the modern statements of human rights found in international instruments".

And such a case was Jago v Judges of District Court where they had relied on a breach of a human right and in regards to that case where it was an abuse of process in not reaching a speedy trial or being denied a speedy trial.

HIS HONOUR: Yes. Well, I am pretty familiar with these matters but where you have an international instruments, it cannot override the procedures of this Court which are set down by statute or the criminal law of New South Wales which has been administered by the Court of Criminal Appeal.

MRS SINANOVIC: In the case of Dietrich, your Honour - I will raise Dietrich - where there is no right to representation but the way the Dietrich judgment was handed down was that being denied that representation would result in a miscarriage of justice. It is not that one has the right to representation, that one is entitled to it, the Dietrich Case was the fact that one did not have the representation would result in a miscarriage of justice.

It is the same way like we are using these other laws. The fact that maybe an illiterate accused would face himself pressured to be forced on in an application would result in a miscarriage of justice because he is not treated equally before the law as his opponent.

Even in the cases of the Crown's position, your Honour, the Crown is not there - even games that are played are done fairly where both opponents are on equal status. The Crown is there as the representative of the Minister of Justice. He must try to co-operate and assist his opponent to ensure that we get to the bottom of the truth. That is what his main role is.

When they oppose applications, your Honour, in the sense that they know that their opponent - because I spoke to Mr Singleton prior to my doing this application and I put to Mr Singleton my position. He said to me, "We're opposing your application." So, as a Crown aware that they are going to oppose an application against a person who they know was not in a proper position to proceed, that within itself, your Honour, is not the balance of the roles of what these prosecutions are bounded by, because as they proceed with matters, they have to proceed knowing their opponent is on the equal status or the same equal preparation as them.

I can understand when it comes to legal qualified people because they are on equal legal status in the sense that, your Honour, they have assistants, they have not a problem in obtaining legal advice, they can refer to other learned friends and other colleagues to obtain legal advice. They have the access, the availabilities, their experience assists them. I could understand when a judge would force a legal representative to say, "Fine, proceed with the matter", but when it comes to a person in a position such as mine, your Honour, one would have to take the view that that person really was not in a fair position to proceed. All that Mr Sinanovic is asking, your Honour, in this application, as he has been asking in so many applications before the Court, is to be treated fairly and equal before the law. At least to be granted that fairness.

HIS HONOUR: Yes. Well, I understand what you have said and I think you have put the case as well as it can be put. You put it better than many barristers would have put it.

MRS SINANOVIC: My last submission may be in this case - your Honour, I feel very deeply about this case, that I would like at least once - I am only asking this on behalf of Mr Sinanovic - only once that could this case proceed through the judicial courts in a position in such fairness. Therefore, whatever decision is reached, your Honour, it will be accepted, but at least that we are satisfied - and I would like to satisfy your Honour that we are satisfied that we had this opportunity. And, your Honour, I am not just asking you this because I am, more than anyone, to understand the rules of the Court and I can show you documentation, your Honour, whereby I have assisted the District Courts in advising them prior the delays that may occur because Mr Sinanovic cannot get access to an affidavit. I have to, with the leave of the court and the apology to their court, to say, "Look, I am sorry this is the situation, I will try to assist as much as I can, but the correctional centre is not allowing to get access to these documents."

It is delaying the courts, it is interfering with the course of justice. The same is with this case. With Mr Peter Singleton, if it had done prior - maybe right in the first week, because what had happened, Mr Sinanovic when back down to Junee Correctional Centre. Mr Singleton had his opportunity - - -

HIS HONOUR: Yes, I know all of that. I have read all that material.

MRS SINANOVIC: Well, it contributes, your Honour. It affects the situation.

HIS HONOUR: I think I understand now the way you are putting the matter. Is there anything else that you wish to say?

MRS SINANOVIC: Your Honour, there may be more but I understand that your Honour is pressed with time.

HIS HONOUR: But if there is anything else of substance - just look through your notes and see that there is not anything else that you regard as important.

MRS SINANOVIC: Thank you, your Honour. The only other thing that I may raise, your Honour, is, on behalf of Mr Sinanovic, to understand why - we have not come to this Court to delay the Court's time. We appreciate the Court's time and, personally - and I can say for myself and Mr Sinanovic - we do appreciate the laws that are set down in this country, because these laws are fair laws, and they are fair to be treated for everyone. Our request, your Honour, is that we can be abided by those laws, that we can be treated - - -

HIS HONOUR: Yes, I know that. You have said that to me before.

MRS SINANOVIC: - - - can be treated equally in regards to that. One other thing I would like to put to your Honour is a person in respect who is not a legally qualified person does feel the intimidation before a court. Therefore, one feels retracted, one feels, in a way, suppressed. One may feel not being able to put correctly the words and the misleading words - - -

HIS HONOUR: I understand that, but I hope you have felt retracted or unduly suppressed before me today.

MRS SINANOVIC: No, I do not, your Honour, but I personally do feel a great responsibility on my shoulders.

HIS HONOUR: Of course you do.

MRS SINANOVIC: Because I am in a position here to try to put an application in the absence of a person to whom it belongs to, his application. That also makes me have a great responsibility and you can understand, your Honour, I feel such a determination to be able to put it correctly that I wish not to disadvantage him and not to deny him justice for it. I ask the leave of the Court if they could really consider the seriousness of this application and that we could at least have the fairness of this application. I do want to put this. I understand the Justices of the High Court in the way they made that decision. I am not here to say anything against what they have said but it is an application of a notice of motion to be able to be in that fair position, your Honour, given the consideration of who is involved.

HIS HONOUR: Yes. Well, I understand all that. Thank you, Mrs Sinanovic.

MRS SINANOVIC: Thank you, your Honour. Your Honour, sorry, there is one other thing that I did not - and I apologise for this. In my affidavit I did put in - sorry, the affidavit of 23 April, paragraph 7, that "I am requesting this application to be granted." The position is in relation to that, your Honour, the way that I feel how the procedures are taking place in regards to Mr Sinanovic through the courts is that I feel that it could be something that may need to be brought to the attention of the international law - the human rights law. The reason I say this, your Honour, because Mr Sinanovic has encountered himself on numerous occasions without his documentation, without the knowledge and the understanding of the procedures and without an interpreter, and being denied assistance whereby he finds himself at a loss as to what to put to the Bench in part of submissions of documentation.

That affects his situation. Subsequently, it delays even the procedures of the court. And, one, if he is not advantaged at the lower courts, it just continues until it gets to the higher courts.

HIS HONOUR: Well, I understand that submission too. Thank you very much.

MRS SINANOVIC: And such is the case where Mr Sinanovic now is in custody because of being forced on in trials and not having access to the transcripts and conducting it by memory. You can understand how one does feel within themselves of being discriminated.

HIS HONOUR: Yes.

MRS SINANOVIC: Thank you, your Honour.

HIS HONOUR: It is an admirable thing for a wife to speak up for a husband who is in custody. Indeed, it is admirable for any friend to do so. Courts must listen when prisoners, by proper process, bring their complaints before them. They must never allow weariness born of many hopeless proceedings nor the pressure of heavy lists of cases, professionally presented, to dull their vigilance against the possibility that an unrepresented prisoner's complaint may have merit. cf Coppedge v United States [1962] USSC 62; 369 US 438 at 447-449 (1962); Hussainara Khatoon v State of Bihar [1979] INSC 67; AIR 1979 SC 1369 at 1376. Courts remain the ultimate protector of everyone in society, including prisoners who have no lawyers to speak for them.

Now, before me, is a motion by Mrs Maria Sinanovic, the wife of a prisoner, Hakija Sinanovic. He is not in court. In the course of making her submissions, Mrs Sinanovic told me that she felt a great responsibility on her shoulders. She said that she was trying to put the application on behalf of her husband as he would do, were he here. She wished not to disadvantage him nor to deny him justice. I accept that she feels that responsibility keenly. She has made every endeavour to discharge it.

History of the proceedings

I come to these proceedings at the end of a very long journey through the courts by Mr and Mrs Sinanovic. It began when Mr Sinanovic was indicted on two counts of dishonestly obtaining money, one count of dishonestly obtaining money and a valuable thing (a bank cheque) by deception, and three counts of attempting to obtain money by deception. The deception in each case was the representation that certain foreign banknotes of a series which had been withdrawn were current legal tender which Mr Sinanovic was entitled to exchange for Australian currency.

Upon the counts of the indictment, Mr Sinanovic underwent his trial in the District Court of New South Wales. He was legally represented. The jury found him guilty on all counts. He was convicted and sentenced. He appealed to the Court of Criminal Appeal of New South Wales. His appeal was successful. His convictions were set aside. The basis for that order was that evidence had been wrongly received of a deposition of a witness, contrary to the provisions of the Crimes Act 1900 (NSW), s 409(1).

Mr Sinanovic was put up for trial once again. At the retrial, the witness gave oral evidence. Once again, Mr Sinanovic was found guilty on all counts, convicted and sentenced. Once again, he appealed to the Court of Criminal Appeal of New South Wales. That appeal came before that court on 20 November 1995. The court was constituted by Gleeson CJ and Allen and Sully JJ. Although the Crown was represented, Mr Sinanovic was not. He appeared in person to argue his case. Allegedly, this was because he was denied legal aid and could not afford a lawyer. The proceedings before me have gone forward on the basis that Mr Sinanovic has difficulties with the English language and is also illiterate.

Allen J, who gave the judgment of the Court of Criminal Appeal dismissing the second appeal, said:

The appellant was represented at his trial but appears in person before this Court. The Court has written submissions from him which, although diffuse, make clear the substance of his complaints.

Mrs Sinanovic, speaking for her husband who is detained in the Junee Correctional Centre, has told me today that this statement seriously underestimated the difficulties of a person in custody presenting an appeal to the Court of Criminal Appeal, especially where his first language was not English and where he was illiterate. In effect, he must present the appeal from memory. He must do so without the advantages which a person who is legally represented, or who is at least a native speaker and a literate person, enjoy. I do not doubt that there would be great disadvantages facing a person such as Mr Sinanovic, placed in the position that he was.

Dietrich and appeals

In Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 this Court held that the right to a fair trial which exists in Australian courts may authorise or require a judge to stay the trial of an indigent accused on serious criminal charges who, through no fault of his or her own, is unable to obtain legal representation at the trial. So far, the principle expressed in that case has not been extended to appeals to courts of criminal appeal against conviction. Obviously, any such extension would have significant economic and other implications. It might be argued that it is a matter for the legislatures of Australia and not for the courts. cf Dietrich [1992] HCA 57; (1992) 177 CLR 292 at 320-321. However that may be, no established principle of constitutional or general law affords a prisoner in Australia a right to legal representation on appeal. This is so even where the absence of such representation might effectively deny the prisoner the fair opportunity to present his case to the appellate court.

One day the significance of Dietrich for appeals against conviction may need to be considered by this Court. The facility of appeal against conviction is long established by our law. The right to have a conviction and sentence reviewed by a higher tribunal is recognised as a fundamental right in statements of universal human rights to which Australia has subscribed. See International Covenant on Civil and Political Rights, Art 14.2 discussed Young v Registrar, Court of Appeal (1993) 32 NSWLR 262 at 269, 290 and authorities there cited. Upon one view the right of such review is a feature of the right to a fair trial itself. See Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 29 per Mason CJ, at 57 per Deane J. However, this is not the case in which consideration of that question will be given. Although it was mentioned by Mrs Sinanovic in previous proceedings before the Court, the point was not pressed to finality. Procedural obstacles, which I will describe, stand in the way of its being considered now by me. Other cases will doubtless present where the issue of the fairness of proceedings on appeal, and whether there has been a true appeal at all in the absence of proper representation, will need to be decided.

As I have indicated, Allen J stated that, in this case, the written submissions which the Court of Criminal Appeal had made clear the substance of Mr Sinanovic's complaints about his conviction. Accordingly, this would not be the case in which to consider the ambit of the Dietrich principle as it may be thought to apply to appeals.

Following the decision of the Court of Criminal Appeal dismissing his appeal, Mr Sinanovic applied for special leave to appeal to this Court. Once again, he was unrepresented. He was in custody when the application first came before the Court, as it was then constituted (Brennan CJ and Callinan J) on 13 February 1998. Mrs Sinanovic was permitted to speak on behalf of her husband. Mrs Sinanovic made clear to the Court the disadvantages which, she claimed, her husband faced in presenting his application for special leave to appeal. Most particularly, she referred to the lack of the transcript of the trial and the lack of a full opportunity to discuss the matter with her so that, in his absence in prison, she might put his submissions to the Court.

In the face of these complaints and, exceptionally, the Court adjourned the consideration of the application for special leave. It did so for a month and ordered that the application be heard in the next sittings of the Court in Sydney. The stated purpose of the adjournment was to permit the Crown, which had the transcript and other relevant documents, to make copies and to provide them to Mr Sinanovic in prison. The object of the adjournment was clearly to permit an unrepresented prisoner, with such assistance as his wife could give him, to put his arguments for special leave to the Court so that his entitlement to a special leave hearing was a reality and not a charade.

Disposal of the special leave application

The matter then came back before the Court on 13 March 1998. On that occasion the Court was constituted by Gaudron and McHugh JJ. Mrs Sinanovic once again sought leave to speak for her husband, still in custody and not present in the Court. The Court gave that leave. Mrs Sinanovic first applied for a further adjournment. She did so on the footing that, although the transcript and some other documents had been made available to her husband, effectively, they had been made available only a week before the hearing of the adjourned proceeding. Because of Mr Sinanovic's disabilities with the English language and with reading, and because of the difficulty of communicating with him in person, it was claimed that he had effectively been prevented from using the facility which the Court had earlier provided.

The application for adjournment was opposed by senior counsel appearing for the Crown. Having heard the argument, Gaudron J, on behalf of the Court, said:

Chief Justice Brennan told you that the matter would have to go on. The matter you now wish to argue has been part of the application from day one and the Court wishes you to proceed today. There will be no adjournment.

Mrs Sinanovic, on behalf of her husband, accepted the ruling. The proceedings then continued in the ordinary way as the hearing of Mr Sinanovic's application for special leave to appeal.

During that hearing it was clear that the Justices constituting the Court were well familiar with the issues which had been raised in the Court of Criminal Appeal and at the trial. Mrs Sinanovic was asked questions concerning those issues. The members of the Court were clearly anxious to understand whether, on any footing, there was a proper basis for concern: either, that an important point was raised by the application or that a miscarriage of justice may have occurred against which the Court should protect Mr Sinanovic.

However, it became plain fairly quickly that the Justices constituting the Court were not convinced on either basis that special leave should be granted. For example, at one point McHugh J said of the trial:

Evidence was given by bank officials. If we get down from the high-flown theory to the facts of this case, it is an identity case plus your husband's explanation that in obtaining this money for these foreign notes he was not aware that they were no longer in legal circulation. The jury disbelieved him on both accounts and found he was guilty beyond reasonable doubt.

And later his Honour said:

The Court of Criminal Appeal had written submissions. They said that those written submissions, although diffuse, made clear the substance of the appellant's complaint and that they were that his Honour had erred in declining to order a separate trial in respect of each offence and that the convictions were unsafe and unsatisfactory and, included in that ground were complaints as to the reception of certain evidence and as to his Honour's directions in his summing up in relation to that evidence. Now, that was the substance of the complaint and the Court of Criminal Appeal examined them and rejected it. Where is the special leave point?

Having heard further submissions from Mrs Sinanovic, the Court refused special leave to appeal without calling on the Crown. Gaudron J, announcing the decision of the Court, said:

We are of the view that there is no error in the judgment of the Court of Criminal Appeal and, moreover, that there has been no miscarriage of justice in this case. Accordingly, special leave is refused.

Proposed motion to re-open the hearing

Ordinarily, that would have been the end of the matter. However, nothing daunted, Mrs Sinanovic filed in this Court a further motion on behalf of her husband,. It seeks an order from the Court setting aside the decision of 13 March 1998:

due to prejudice to the applicant who had been 'denied natural justice' by being refused an adjournment to properly prepare and present his application as for the first time he was only made aware of its contents less than one week prior to the hearing resulted in a decision based on an incomplete application before the High Court.

Pursuant to O 58 r 4(3) of the High Court Rules, Gummow J, on 23 March 1998, directed the Registrar to refuse to issue the motion without the leave of a Justice first had and obtained by the party seeking to issue it.

The matter has now come before me as duty Judge on an application for such leave. In light of the fact that the applicant is a prisoner in custody, who speaks to the Court only through his wife and who is said to have disabilities of communication already mentioned, I directed that the matter be heard in open court. So it has today. Once again, Mrs Sinanovic applied to speak for her husband and she was heard to do so. She informed me that, although her husband was not aware of all of the matters that she would be putting before the Court, he was generally aware of, and agreed to, the application which she was making on his behalf and the thrust of the arguments which she intended to place before me.

Mrs Sinanovic was heard for upwards of an hour. She submitted that her husband had been denied natural justice both in the Court of Criminal Appeal and in this Court by not having had at all, or not having had for a sufficient time, the transcript of the trial. However, whatever was the position in the courts below, as a result of the exceptional orders made by Brennan CJ and Callinan J when the matter was first heard in this Court, there is no doubt that Mr Sinanovic, and also Mrs Sinanovic, had the transcript of the trial for at least a week prior to the hearing on the second occasion.

Whilst I fully understand the difficulties of preparing an application to this Court without legal training in the space of a week, and whilst I also understand Mrs Sinanovic's complaint about the ill-balance between the experience at the Crown's end of the Bar table and that existing at her end of the table, the national obligations of this Court and its procedures require a high degree of efficiency in the presentation and disposal of applications. This was properly acknowledged by Mrs Sinanovic who accepted the reasons for such necessities. It is also relevant, as Gaudron J pointed out, that Brennan CJ made it plain that the exceptional adjournment which was provided was for a short time only and that the matter would have to proceed on its next return before the Court.

The Court, duly constituted with authority to deal with the application, then heard the request for a further adjournment. In the exercise of its discretion, it refused that request. Clearly there is no error in that refusal which would attract any prospect that it would be reversed on reconsideration by the Court. Accordingly, in so far as the application to file the notice of motion is based upon an objection to the refusal of the adjournment when the matter was before the Court on 13 March, 1998, it is bound to fail. It would therefore not attract leave to permit Mr Sinanovic to file the notice of motion proffered to the Registrar by his wife.

A misconceived appeal to international law

That leaves the complaint about the disposal of the substance of the application. On this, Mrs Sinanovic went through various factual objections. However, none of these is different from those which were advanced when Gaudron and McHugh JJ were hearing the matter.

Mrs Sinanovic then appealed to the principles of international law. In particular, she referred to those provisions of the International Covenant on Civil and Political Rights, Art 14.1 of which provides that:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him ... everyone shall be entitled to a fair ... hearing by a competent, independent and impartial tribunal established by law.

Mrs Sinanovic's complaint was that her husband was not treated equally. In particular, this was because, in the Court of Criminal Appeal and initially in this Court, he did not have the transcript and the facilities for discussion of the matter with a properly qualified representative, or even with his wife.

The principles of international law to which Mrs Sinanovic has referred are not, as such, part of the domestic law of Australia. Australian courts may take them into account in performing their functions where the law is ambiguous or uncertain. An illustration of the way in which they may be used in the case of a litigant unable to communicate with a court in Australia may be found in the decision in Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 422 - a case involving the entitlement to interpretation of proceedings in open court of a litigant who was both deaf and mute. In my view courts may be assisted by such universal principles when constitutional or other rights are involved which are ambiguous and which may be made clear by reference to such principles. See eg Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42; Newcrest Mining Co v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1424; 147 ALR 42 at 147-148; Kartinyeri v The Commonwealth (1998) 72 ALJR 722; 152 ALR 540; [1998] HCA 22 at par 166.

The arrangements which were made by the Court when the matter was first before it were designed to ensure, so far as was possible, the equality of Mr Sinanovic before the Court. The complaint of an unacceptable lack of equality was considered by the Court and rejected by it on 13 March 1998. Moreover, when the Court turned to the substance of the matter on that occasion it was unconvinced that there was any merit in the objections to the actual decision of the Court of Criminal Appeal or to the trial of Mr Sinanovic before the District Court of New South Wales.

On that footing, there is nothing in the international law to which Mrs Sinanovic has referred which would give a foothold for a new ground to set aside the decision of the Justices who disposed of the special leave application on 13 March 1998. It is understandable, perhaps, for a lay person to think that international law, being at a higher plane, overrides Australian domestic law to the extent of inconsistency: just as State law may override a local government law or, federal law, if valid, may override State law. However, the position is not as simple as that for reasons which I endeavoured to explain in Thorpe v The Commonwealth [No 3][1997] HCA 21; (1997) 71 ALJR 767 at 779; [1997] HCA 21; 144 ALR 677 at 693. The use that may be made of international law in Australian domestic law is much more indirect, subtle and controversial. It does not avail Mr Sinanovic in this case.

Conclusion and order

Accordingly, as to the challenge to the substance of the Court's disposal of the application for special leave on 13 March 1998, no ground has been shown which would give any basis for hope that a reconsideration of the matter would be successful. That being the case, no foundation has been demonstrated that would authorise me to grant leave for the issue of the proposed notice of motion. The application for such leave is therefore refused.

I should add, in closing, that the matter has proceeded today ex parte, in the absence of the Crown. That, apparently, is the procedure that is contemplated by the Rules. In many cases, it will be appropriate for such applications to be dealt with in private chambers on the papers. However, for the reasons which I have stated, I have heard the application in open court and have permitted Mrs Sinanovic to say what she wished to say in support of the application on behalf of the prisoner.

I will direct that a copy of the transcript and of these reasons be sent to the applicant, Hakija Sinanovic, at the Junee Correctional Centre, and to his wife who represented him.

The order of the Court is that the application for leave to issue the notice of motion is refused.

AT 12.37 PM THE MATTER WAS ADJOURNED