Adler v The Queen S123/2000 [2000] HCATrans 757 (15 December 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S123 of 2000

B e t w e e n -

GEORGE ADLER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2000, AT 12.01 PM

Copyright in the High Court of Australia

MR C.V. JEFFREYS: If your Honours please, I appear for the applicant. (of Jeffreys & Associates)

MR P. ROBERTS, SC: If your Honours please, I appear with MR M.A. WIGNEY for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

GAUDRON J: Now, Mr Jeffreys, are you seeking an adjournment of this application?

MR JEFFREYS: No, your Honour.

GAUDRON J: You are not? You are prepared to proceed.

MR JEFFREYS: Yes, your Honour.

GAUDRON J: I see. Well, there is a note from the Registrar that is inaccurate. I am sorry.

MR JEFFREYS: Your Honours, this is a matter which there are two, in my respectful submission, important matters. One is whether or not the applicant, who was a struck-off solicitor, was able to represent himself and whether or not he ought to have been given either an adjournment or that the jury have been discharged. Secondly, once the trial had proceeded, whether or not it was appropriate for the trial judge, at a time when the applicant was being cross-examined by the Crown, for the trial judge to then ask questions which culminated in a question by his Honour, "Try the truth".

Your Honours, the applicant was charged with 21 counts of obtaining financial advantage by deception and the trial, which commenced on 16 February, ended in a verdict on 12 May 1998. It was at a time of 2 March that senior counsel, then representing the applicant, withdrew from the trial, as did junior counsel and solicitor.

KIRBY J: Something very dramatic must have happened, something very important. There is a District Court rule which is assumed to have been applied in this case. We have no knowledge of what it was but it must have been something very grave.

MR JEFFREYS: That is a matter which was never developed before his Honour and it is a matter which was never developed in the Court of Criminal Appeal. Suffice to say that - - -

KIRBY J: Do not say anything that goes beyond the record because I do not want to know anything that goes beyond the record.

MR JEFFREYS: No, your Honour. Suffice to say that the applicant indicated that it had been his fault - - -

KIRBY J: He accept that they had a proper basis for withdrawing and that it was his fault.

MR JEFFREYS: Yes, but not deliberate.

KIRBY J: No.

MR JEFFREYS: So it is not the situation where it is a connived feature, where the applicant comes up with something in the course of the trial and connives the withdrawal of counsel. This is a matter where the Crown - - -

KIRBY J: He was willing to agree to an adjournment on terms that - acknowledging that he would remain in custody.

MR JEFFREYS: Yes, your Honour.

KIRBY J: And be refused bail.

MR JEFFREYS: Yes, quite clearly. He was happy to have the matter either adjourned for some time to allow further counsel to come into the matter or, if that was not an appropriate remedy, for the jury to be discharged and for him to remain in custody. So, the liberty of the subject was not an issue before his Honour. This was a trial which the Crown was represented by two counsel and solicitor. The trial actually went - there were some adjournments but, in the main, it went from 16 February to -his Honour commenced his Honour's summing up on 30 April 1998.

True it is that the applicant had been a solicitor but he had not been a solicitor for many years and your Honours would appreciate the difficulties that an unrepresented person, an unrepresented accused has, to deal with matters such as the Evidence Act and the various ramifications in relation to the Evidence Act. Such things as whether or not the accused ought, in fact, go in the witness box or rely on the matters which are developed in the course of the trial and remain mute. All these sorts of matters are important. So far as his Honour the trial judge - - -

GAUDRON J: But do you not have to go to the point, now, and contend that, in the circumstances, Mr Adler did not have a fair trial? Not that there were all these difficulties in the way but, in the circumstances, it was not a fair trial.

MR JEFFREYS: Your Honour, I accept that. Your Honour, with respect, one of the substantial matters which cries out, if I can use that expression, is the situation which is referred to in the judgment of the Court of Criminal Appeal at application book 467, and that was the exchange between his Honour the trial judge and the applicant. Crown counsel asked the question and the applicant's answer was:

Yes, I would have said that Badrum's funds are deposited in the Hottinger bank, that's correct, not Mr Cairns' funds.

HIS HONOUR: Q. Is that right?

A. Yes, your Honour.

Q. That Badrum's funds are deposited in the Hottinger bank?

A. They were deposited.

Q. Is that right?

A. Yeah, they were deposited in Hottinger as well as in Panama.

Q. The funds, Badrum's funds?

A. Badrum had secured credit lines.

Q. No, no, is it right that Badrum's funds were deposited in the Hottinger bank?

Then the applicant, unrepresented, says:

Well, that's - I'm not sure how I can answer that your Honour.

Then his Honour says:

Try the truth?

A. Well, I object to that, your Honour.

Q. You can object all you like. Just do your best?

A. Funds in a credit line are exactly the same thing. If you have an overdraft you have funds available. If you have cash in the bank, you have funds available.

Now, first of all, so far as this applicant's trial was concerned, if the applicant had been represented, he may never have been in a situation of being in the witness box. That is the first thing.

GAUDRON J: That does not necessarily indicate that he did not have a fair trial. You have to go beyond that. You have to point to something about the trial as it actually took place. Now, I understand your pointed to "try the truth" line, but is there anything else you point to to establish that, in fact, there was not a fair trial?

MR JEFFREYS: Your Honour, the "try the truth" line is substantial in that the case for the applicant was that he, the applicant, had arranged for offshore available funds to substitute for the funds which he had obtained from the various investors, for want of a better word. The prosecution case was that overseas inquiries had been made and that, effectively, nothing had been found. Now, the applicant, on a number of occasions, was not given assistance in relation to how that material ought to be determined. The situation is that there are complicated, in my respectful submission, issues so far as whether or not that material was available.

KIRBY J: But his counsel were there when the witnesses of the Crown were cross-examined.

MR JEFFREYS: Only four.

KIRBY J: My understanding is that he had counsel when the chief witnesses of the prosecution were giving their evidence and that his counsel cross-examined them. Is that correct or not correct?

MR JEFFREYS: His counsel cross-examined the complainants, and not all the complainants, so that what the applicant claimed to have been told to the complainants was available through cross-examination. The investigators, which the Crown relied upon so far as establishing that there was no overseas facility, were not cross-examined by the applicant's counsel. They were cross-examined by the applicant.

KIRBY J: You latch on to this passage which you have just read and it is true that the words, "Try the truth", are unfortunate, but litigation is a human business and in the midst of it, even the most saintly say things that they wish they had not, or say things spontaneously that are said and that are past - I have done it myself - and if that is so, then this particular statement by his Honour, though unfortunate, is one little sentence in the middle of a very long trial. You wonder if it really was a very significant - it was a spontaneous action, "Try the truth", and your client, I should say, had the quickness of mind to object to it.

MR JEFFREYS: And the question was allowed.

KIRBY J: Well, he said, "Just do your best", which is a mollification of "Try the truth".

MR JEFFREYS: Your Honour, the difficulty with it is this: if the applicant had been represented, whatever damage might have been done in the eyes of the jury at that time could have been cured by his counsel. Having the judge indicate to the jury that all the judge was doing was trying to assist the applicant in the proper version of what ought to happen, rather than - - -

KIRBY J: Well, the judge obviously thought that your client had made a factual mistake and he was trying to clarify that. That is how I read it.

MR JEFFREYS: But the great difficulty with that, your Honour, with respect, is that the jury are not given assistance as to how they are to deal with the matter at all. If the applicant had been represented, then at least his counsel could have assisted the trial judge in what damage may have then happened and it is a perception - - -

KIRBY J: That is true, but this is a very unsatisfactory situation for everybody to be in. A case at trial, a long trial, is well advanced; members of the community have been inconvenienced to act as jurors; public funds have been expended. It is not the judge's fault; it is not the jury's fault; it is partly your client's fault, apparently, but a discretion was exercised and you are really latching on to one little phrase in the middle of a long trial. As Justice Gaudron says, you really have to show that, in the events that occurred, that your client did not get a fair trial.

MR JEFFREYS: Your Honours, there are matters which are said to be matters of contention which a transcript has been provided to your Honours this morning, and I apologise for the way that these things have developed. But if your Honours go to that part of the summary of argument, in relation to difficulties, and if I could take your Honours, very briefly, to those parts of the transcript. The transcript has been collected - I do not say it is well collected - but collected, in relation to those complaints. First of all, if I could take your Honours to page 1040. Do your Honours have that?

KIRBY J: Mine starts at 1046.

GAUDRON J: Yes. We are all at 1046.

MR JEFFREYS: Are you looking at the bottom number or the top number?

GAUDRON J: Thank you. We are all at 1040 then.

MR JEFFREYS: Yes, I am sorry, your Honours, 1046. Your Honours, there is a situation here where the judge tells the jury, in the presence of the applicant, obviously, but this is the jury who are being told:

Members of the jury I ask you to bear with us. I am a Judge not entirely without experience. My experience tells me that the time that has been spent with you not here, when matters of evidence have been decided and discussed, has been time that is invaluable. We have saved time.

What his Honour did there was he was effectively telling the jury why this case was taking so long, which was because the applicant was unrepresented.

GAUDRON J: That is a comment that is frequently made when there have been rulings on evidence and the like.

KIRBY J: Rightly made. We have gone beyond the state that 12 citizens sit there quietly and dumbly waiting till lawyers are ready to deal with them. Citizens are entitled to be informed.

MR JEFFREYS: Unquestionably, but what it does, where you have an accused who is unrepresented, who asks for adjournments - - -

KIRBY J: It does not seem like a very good point.

MR JEFFREYS: If your Honours please.

KIRBY J: Is there a better point? What is your best point in this because we do not have much time?

MR JEFFREYS: Yes, I know.

KIRBY J: This is not a Court of Criminal Appeal.

MR JEFFREYS: No, your Honours.

KIRBY J: What is the best point in this collection?

MR JEFFREYS: Your Honour, there is a number of matters. If I could take your Honours to page 147. As I say, they are in series - - -

GAUDRON J: Page 147 something?

MR JEFFREYS: There is 166 at the top.

KIRBY J: Is it 1476?

MR JEFFREYS: Page 147, your Honour.

KIRBY J: The next set we have starts at - - -

GAUDRON J: Page 166 at the top?

MR JEFFREYS: Yes.

GAUDRON J: Page 147 at the bottom, which is about seven pages in.

MR JEFFREYS: Yes, your Honour. Mr Cairns is being re-examined. I am sorry, I withdraw that one, your Honours. If I can deal with the overseas inquiries, I think that is the real vice. If I can go to 1146, your Honours, which is about six pages through. Page 1146 of the transcript of the trial at the bottom, 1152 at the top. The applicant indicated there that he was having difficulties so far as the overseas inquiries are concerned - and this is developed, your Honours, because when one goes to 1178, he is complaining about these various matters, and then it develops before the jury. It first developed before the jury, 1221, which is the next page that your Honours have. What happened was the witness was allowed to say, at the top:

I had to understand whether you had taken money from people for the purpose of investing in Canadian Government bonds, and whether you used any of that money whatsoever for that purpose. I saw no evidence of that.

If your Honours then go to 1281, which is the next page, Mr Adler is asked these questions, at line 25:

Your information is only from the enquiries that you have conducted, is that correct?

A. No that is not correct.

Q. From the enquiries that you and members of your team have conducted, is that correct?

A. That's correct.

Q. When it refers to you and the team, to make it easier, did you conduct any banking enquiries in Canada?

A. Indirectly, yes I did.

The Crown - when we go to pages 1320 and following, show that the Crown was objecting to the overseas inquiry material and then the Crown were allowing their witnesses, as it were, or the witnesses were being permitted, without objection, because Mr Adler was indicating to the trial judge, "Look, I do not know what I am doing". They were allowed to effectively put before the jury the result of inquires which the Crown were not relying upon.

Now, I cannot put it any higher than that but, in my submission, the question which is, "Try the truth", is a substantial matter, your Honours, and, in my submission, your Honours would consider it that way. I do not have anything further I can put.

GAUDRON J: Yes, thank you, Mr Jeffreys. Yes, Mr Roberts.

MR ROBERTS: Your Honours, in relation to the - - -

KIRBY J: What was the big problem with the judge? I realise we are not exercising a discretion and that the applicant has to get through two discretionary decisions, but if the applicant, in the circumstances in a big case and a long case, a complicated matter, was willing to wait out his time in custody, what was the necessity of justice that required that the matter be pressed on? Of course there would be costs that would be thrown away, there would be inconvenience, and all of these things, but the result of a conviction is loss of liberty.

MR ROBERTS: Your Honours, there are numerous matters that his Honour took into account which appear in his Honour's interlocutory judgment at pages 6 through to 16 - - -

KIRBY J: Yes, I have read those. How far into the trial was the matter at the time of the event?

MR ROBERTS: I think it was day 11 and - - -

KIRBY J: How many days did the trial ultimately consume?

MR ROBERTS: Well, it spanned, I think, 11 weeks, but there were many adjournments during that period. The longest adjournment, of course, being at a stage when Mr Adler was seeking alternate representation and, apparently, his efforts were unsuccessful and, as your Honours know, that when the trial did resume, Mr Adler was granted bail, albeit that he was also in custody on another matter at that stage, but he was granted bail to assist him in preparation of the case. One of the matters that seem to loom large with his Honour was the fact that the accused had been in custody for a considerable period at that time in relation to - - -

KIRBY J: I saw what his Honour said about that and that was a very proper matter for his Honour to weigh, but when the accused says, "I realise I would have to pay a price at the loss of custody but I am willing to pay that price to ensure that I, though a solicitor, a person who has no real experience as an advocate at a criminal trial, I am a person who deals with money, not criminal trials, that I am willing to pay that price". In those circumstances, it takes a very robust judge to say, "Well, I will substitute my weight of the applicant's liberty for his own".

MR ROBERTS: Well, your Honours, his, that is Mr Adler's, view as to the situation was not determinative albeit that he expressed that he was prepared to remain in gaol. That was a factor which his Honour, properly, took into account as, indeed, his Honour took all of those matters into account. It may be that your Honour, for example, would not have exercised the discretion in the same manner but his Honour took all of these matters into account and finally concluded that, in his discretion, the trial should continue. He being of the view that Mr Adler appeared to be a person of intelligence, someone who was able to persuade others - - -

KIRBY J: Intelligence is not what is required for a criminal trial - training and experience.

MR ROBERTS: Well, I am not suggesting, your Honours, that an intelligent defendant necessarily makes up for an advocate but, obviously, it is a matter that must be taken into account. It was a person who was able to defend himself and who did defend himself, we submit, quite ably, in the circumstances.

CALLINAN J: That exchange in relation to what I would call the Browne v Dunn point which was dealt with in the Court of Criminal Appeal, do you know what I am speaking about?

MR ROBERTS: Yes, I do.

CALLINAN J: That occurred after the withdrawal of counsel, did it?

MR ROBERTS: Yes, it did.

CALLINAN J: The ruling was plainly wrong, was it not? The fact that a matter has not been put to a witness does not make the answer to a question subsequently asked, inadmissible. It may be a matter for comment but it does not make it inadmissible. It might also give rise to an order allowing the recall of a witness, rebuttal evidence, or something like, but it is not a matter of admissibility. I mean, there is a misconception about this.

MR ROBERTS: Your Honour, the discussion as to Browne v Dunn that occurred may have not been on a proper basis but it did not result in any evidence being excluded. It, therefore, did not matter at all. What happened, I think, was that the Crown objected to, or drew attention to, the fact that certain matters had not been put to witnesses before. His Honour remarked, "Well, that may have been so", but in the end it did not preclude Mr Adler from raising these matters and the jury were instructed, indeed, that they were not to hold that against him in any shape or form. So, as it transpired, the Browne v Dunn point - - -

CALLINAN J: Well, it just went away.

MR ROBERTS: It just went away. In total, obviously, in the course of a long trial, there will be matters that anybody could point to whether you are represented or not, that occur. Some may feel that errors occurred of a minor nature, illustrative is his Honour's remark of, "Try the truth", obviously it was unfortunate and his Honour seemed to immediately try and redress the situation when he realised what he had said.

CALLINAN J: There is one other matter I was going to ask you about. It was necessary, was it, from time to time, to adjourn to enable the applicant to look at documents?

MR ROBERTS: Yes.

CALLINAN J: With what frequency and for what periods did that happen?

MR ROBERTS: Well, my only knowledge is from reading the transcript as well, but there seemed to have been quite a few requests to adjourn and I think, so far as I am aware, every request was met with success. It may not have been for the total period that was asked for but whenever a request was made, it was granted. So, in that respect, the accused was not disadvantaged in terms of preparation time. So, what we say, generally, is that each of these matters was dealt with, not only by his Honour, but by the Court of Criminal Appeal, at great length.

Each and every alleged unfairness - and as your Honour's will have seen from the Court of Criminal Appeal judgment, many of the matters that were alleged to be matters of unfairness either did not occur at all or could not possibly amount to unfairness. They just were non-existent and the description that is given in the applicant's summary of argument, such as lack of adjournment, if one goes to the transcript page, and there was an adjournment, or an example of unfairness by his Honour, one can peruse the transcript without - even with a jaundiced eye and can see no possible prejudice to anybody or anything occurring of any note at all.

There were numerous examples of these and there are numerous examples which appear in - or are repeated in the applicant's outline, all of which were dealt with by the Court of Criminal Appeal. It is clear, we submit, that the Court of Criminal Appeal approach the matter properly. It looked at the judge's discretion and found that there was no legal error, and the result was then inevitable that the appeal had to be dismissed and we respectfully submit that would be the result even if special leave were given. But there is no matter that arises in this case which would warrant the granting of special leave.

KIRBY J: What do you say about the judge's statement, "Try the truth"?

MR ROBERTS: I did say exactly what your Honour said, that it was unfortunate. If it had not been said, there would not be a ground either, but, obviously, his Honour should not have said it but his Honour immediately then said the words, "Well, do your best". In the context of a trial of this nature, if anyone had remembered it, it would be fairly remarkable. Those are our submissions, if your Honours please.

GAUDRON J: Yes, thank you, Mr Roberts. Yes, Mr Jeffreys.

MR JEFFREYS: To take up what your Honour Justice Callinan spoke about, so far as time of adjournments is concerned, it is matters of that nature which impact on a trial and if you have a - what happened here was, there was a vast number of documents and the applicant had not had access to those documents. He was given access to them in the court from time to time and that is why there were all these lengthy adjournments and that, in my submission, impacted unfairly on the applicant so far as his trial was concerned. I cannot take that matter any further.

GAUDRON J: Although it was inevitable, when the applicant's legal representatives withdrew from representing him at his trial, that great difficulties would face the applicant and, for that matter, the trial judge and the prosecutor, we are of the view that no error is to be discerned in the approach of the Court of Criminal Appeal with respect to the issues raised by this application. Accordingly, special leave is refused.

AT 12.32 PM THE MATTER WAS CONCLUDED