Sinanovic v The Queen S7/2001 [2001] HCATrans 156 (10 April 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S7 of 2001

B e t w e e n -

HAKIJA SINANOVIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 10 APRIL 2001, AT 3.52 PM

Copyright in the High Court of Australia

MR A.M. BLACKMORE: Your Honour, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

MRS M.A. SINANOVIC: Your Honour, I seek leave to appear on behalf of the applicant, Mr Sinanovic.

GUMMOW J: We have read the written submissions. Do you seek to add to them by some oral statements you wish to make?

MRS SINANOVIC: Yes, I do.

GUMMOW J: Well, we will hear you as to any legal propositions you wish to develop and advance upon what is said in the written materials, but you are, of course, limited by the time constraint and you may not need all of that time constraint in any event, but proceed.

MRS SINANOVIC: Before I proceed, your Honour, I need to bring to the Court's attention in respect of a page in the application book at page 145. Her Honour Justice Gaudron ordered the New South Wales DPP to make the application books and you will find on page 145 that is not a correct copy in the applicant's submissions in reply. The sign of the Reserve Bank has remained. What has been omitted is the Reserve Bank of Australia - - -

GUMMOW J: Yes. We have received a substitute page, which we have included in our book, of 145.

MRS SINANOVIC: I have to add, your Honour, that that document there was actually received by the Reserve Bank. It is not part of the MRI guide.

GUMMOW J: Was it part of the evidence below? Part of the evidence at the trial?

MRS SINANOVIC: No, your Honour, it was not part of the evidence at the trial.

GUMMOW J: Well, how does it get here?

MRS SINANOVIC: It gets here to - because there is a common ground of appeal argued in this Court based on expert evidence on the foreign currency.

GUMMOW J: No, no, we do not receive evidence that was not in the record of the court below.

MRS SINANOVIC: I understand that, your Honour. What the applicant seeks to argue is that the law on expert evidence has been ignored right from trial, through the Court of Criminal Appeal and now to the High Court. The evidence that has been admitted on expert evidence has been hearsay evidence, and that is not admissible, but yet was admitted and relied upon as a finding of fact which the jury gave enormous weight creating Mr Sinanovic into a - - -

GUMMOW J: Did you mention this in the Court of Appeal? I see you put some written submissions in.

MRS SINANOVIC: I did, your Honour. I have to say that I also instructed Mr Coombs who was the counsel, and your Honour will find in the material - - -

GUMMOW J: I just need to know whether it was put to the Court of Criminal Appeal.

MRS SINANOVIC: Yes, it was. Yes, it was.

GUMMOW J: Was it dealt with by the Court of Criminal Appeal? You say not?

MRS SINANOVIC: Well, it remained unchallenged by the Crown and his Honour Justice Hulme - and I do have to add that that is in the material - in the applicant's material. At No 19 you will find there are three pages of transcript where it does indicate that his Honour Justice Wood gave an undertaking that they would go through all the material and if there were any errors of law, even in the absence of me raising any points, that they would consider it and go through it and make their decision and judgment on it.

GUMMOW J: Now, what came out of the Court of Criminal Appeal by majority was an order for a new trial.

MRS SINANOVIC: That is correct.

GUMMOW J: What do you seek instead? You seek an acquittal, do you?

MRS SINANOVIC: We are seeking that there was not ample evidence for a new trial.

GUMMOW J: Not ample evidence?

MRS SINANOVIC: Well, not the way that the respondent has put that there was ample evidence to secure a conviction so, therefore, there should be a new trial. The applicant is saying - - -

GUMMOW J: You say there was not admissible evidence sufficient to sustain a conviction, do you?

MRS SINANOVIC: That is correct, your Honour. If your Honour looks at exhibit K that is in - if your Honour refers to exhibit K in the applicant's material, that is - - -

GUMMOW J: There was a lot of discussion of exhibit K in the reasons in the Court of Criminal Appeal, was there not?

MRS SINANOVIC: Right, that is No 12.

GUMMOW J: Yes.

MRS SINANOVIC: Now, on reading exhibit K - now, the Crown has - - -

GUMMOW J: The Court of Criminal Appeal was unhappy about exhibit K, was it not?

MRS SINANOVIC: But what the Court of Criminal Appeal failed to take into consideration and what the respondent has failed to take into consideration is what was the evidence of fact of finding put to the jury. Based on that evidence alone does not constitute, first, a criminal act, that constitutes a civil proceeding, therefore, it should not have been in the criminal jurisdiction. Reading it very carefully, and they accepted this, saying:

(2) The above amount has been obtained against the security of a note to the value of 20 million cordobas (Banca central de Nicaragua) I told Tina the exchange note from the "Financial Review" which comes every Monday. The exchange rate was 7.5%.

(3) This note cannot be converted to Australian dollars because the banks call the non-convertible. Notes that are not changed by the banks in this country are non-taxable. I will be responsible for any tax if it is converted in this country.

(4) If anything against the law or against Tina arises, I will be punishable by the law.

(5) With the funds Tina gave me, I have purchased overseas currency. Like I told her, it is not taxable in this country. Only the original amount, Tina put in, should be taxable.

Then it goes on further, "If any illegal" - - -

GUMMOW J: The Court of Criminal Appeal decided exhibit K should not have been admitted.

MRS SINANOVIC: But they did not consider the evidence. Your Honour, that evidence does not support the elements in the indictment, none whatsoever. At the beginning it says:

I, Achille -

and they put his name -

Limanay declare that I have borrowed for investment purposes -

The indictment says he received this money to buy her a restaurant.

GUMMOW J: Are you reading to us from exhibit K?

MRS SINANOVIC: Yes.

GUMMOW J: The Court of Criminal Appeal has said exhibit K should not have been there.

MRS SINANOVIC: But, your Honour, they have to not exclude the evidence. What has to be relied on is what was the evidence. It has already been said that Tina Ruello has refused to answer questions - this is quite obvious in the transcript. After four days of being in the witness box Mr Sinanovic asked his Honour - and this is in the appeal book at page 126 - sorry, 127:

ACCUSED: Your Honour, I might say something else. Tina Ruello is have to be in position to answer the question, what the question I will be ask if she can answer in terms of only into the question, if you can direct her -

this is on 11 September; she is four days in the witness box -

HIS HONOUR: If you can make her do that, Mr Sinanovic, I would be obliged, I have tried to have her answer the questions and so far I have been unsuccessful.

Now, this is a woman who would not answer the questions, introduced evidence that the money that she claimed that she gave to the applicant was for buying overseas currency against security of Nicaragua cordobas, but yet is charged, but not prosecuted what he was committed to trial on. The Crown did not produce an ex officio indictment, found their own bill and had an indictment on a fraudulent misappropriation.

GUMMOW J: Now, there was counsel, was there not, in the Court of Criminal Appeal?

MRS SINANOVIC: That is correct, your Honour.

GUMMOW J: At no stage was it suggested, was it, that the verdict could not be supported on the evidence available, that is, excluding exhibit K?

MRS SINANOVIC: Your Honour, Mr Coombs, was instructed to put every point of the appeal.

GUMMOW J: You are bound what counsel said to the court, I am afraid. That is the way the system operates.

MRS SINANOVIC: No, what - the court, the High Court has to - - -

GUMMOW J: What I ask you is, and what I ask you so you can tell me, if you wish to do so, was there any submission that the verdict could not reasonably be supported on the evidence available, excluding exhibit K?

MRS SINANOVIC: He does - he does put in his ground of appeal of exhibit K.

GUMMOW J: Because that is what - just listen to me for a moment; it is a good idea - because that is - - -

MRS SINANOVIC: He does refer to exhibit K.

GUMMOW J: Just listen to me, please, if you wish to get your case dealt with. Because that is what put against you now, if you look at page 132 of the application book, paragraph 3.2. Now, do you controvert, dispute that third sentence?

MRS SINANOVIC: Exhibit K was referred to as a ground of appeal, that is correct, by counsel.

GUMMOW J: Of course it was. That is how it was decided.

MRS SINANOVIC: Yes, but ignorance of the law is not accepted, either by counsel, by trial judge, by the Crown or by anyone who stands before the court, especially for those who know the law.

CALLINAN J: Let me ask you this question. Was it not proved that the applicant gave by way of purported security some Greek drachmai notes issued during the German occupation in 1944?

MRS SINANOVIC: Was it not proved? Your Honour, the applicant says - - -

CALLINAN J: No, was it proved or not? Was there evidence about that?

MRS SINANOVIC: There was evidence admitted during the trial.

CALLINAN J: Yes.

MRS SINANOVIC: The applicant says he never gave any of these notes to this woman.

CALLINAN J: No, but there was evidence that he had, in fact, given such notes.

MRS SINANOVIC: She says that she had received this note from - - -

CALLINAN J: Notes which would have been - - -

MRS SINANOVIC: One note. It was one - - -

CALLINAN J: - - - absolutely worthless.

MRS SINANOVIC: That is it, your Honour, when - - -

CALLINAN J: 1944 Greek drachmai issued by the Germans during the occupation.

MRS SINANOVIC: No, your Honour, that is incorrect.

CALLINAN J: It is not correct?

MRS SINANOVIC: No. It is incorrect, because your Honour has no evidence of expertise to support that finding of fact.

CALLINAN J: I do not need it. I would know myself that German occupation notes issued in 1944 in Greek drachmai - in Greek - would have no redeemable value I would think from 1945 on, but certainly no redeemable value in the 1990s.

MRS SINANOVIC: Is your Honour basing that on common knowledge?

GUMMOW J: We are not here to answer your questions. It is relatively apparently, surely to goodness, and do not trifle with our commonsense, please.

MRS SINANOVIC: No, the reason why - because the common knowledge rule is excluded when it comes to expertise on foreign currency. Expert evidence - and there is cases in the High Court that do not allow hearsay evidence to be admissible. The evidence that was before the trial was not expert evidence. It is not common knowledge that those notes are worthless because there are other issues with high denomination - - -

GUMMOW J: Do you say - do you say - just listen to me. Do you say you would bring expert evidence, say - asserting that they were worth money?

MRS SINANOVIC: Your Honour, it is not for the applicant to prove the case. It is the Crown to prove that they are not.

GUMMOW J: There is at least, it seems to me, a reasonable inference open that they are worthless unless the evidentiary burden is then picked up and that is controverted. The law would be an ass if it were otherwise.

MRS SINANOVIC: Your Honour, with all due respect, the evidence that was admitted into - was hearsay evidence. The Crown does not dispute it, does not challenge it. You have nothing in the respondent's submissions to say, "I dispute the applicant's raising that that was not hearsay evidence." They rely - - -

CALLINAN J: I am sorry, it was the subject of expert evidence.

MRS SINANOVIC: Exactly.

CALLINAN J: And an expert can give evidence of his or her opinion as to the value of foreign currency, and that evidence was given.

MRS SINANOVIC: The law also says in the Butterworths, which was before the trial judge and the Crown prosecutor, at No 11 in the applicant's authorities, [2745] "Evidence of foreign law", [2747] "Evidence of law reports of foreign countries", [2749] "Questions of foreign law to be decided by judge", [2751] "Certificates of expert evidence". There is no certificate before the trial - - -

CALLINAN J: They had better than a certificate: the witness gave evidence; the witness could be cross-examined about it.

MRS SINANOVIC: But there is no evidence that he was an expert. I mean, the case says very clearly - in the High Court cases say very clearly when is an expert skilled enough to give expert evidence. What evidence did they rely on? An MRI guide printed in America, not legislation, not government, not parliamentary, on a guide. The same guide does not even support your own currency. If one was to rely - and we are in another country relying on your currency, that guide does not put 1966 Australian currency in there and because it is excluded, one just has to assume that it is worthless. That would be totally incorrect and misleading. That is why the importance - and our common law says clearly it has to be supported by the legislation of that country.

The currency - there are many different issues of currency. There are for the common people. High denomination currencies were created for different issues, semi-government, global. Assuming that 1944, because it was a high denomination, does not render it worthless until you have the Greek Government legislation coming to this courtroom and saying, "Yes, I do not redeem that currency." And in the absence of that evidence there is no finding of fact, because you are creating that the currency is worthless when it is not.

The law says it quite clearly. Common law says it. Halsbury's Laws of Australia says it. You have all the authorities there, your Honour. You have got the cases in the High Court. Opinion evidence is not admissible until it can be proven. Westpac does not deal with Nicaragua. Then, to go one step further, if your Honour refers to the evidence in the summary argument - in the respondent, 135 - - -

GUMMOW J: Yes.

MRS SINANOVIC: Sorry, 136, in the - Dennis Derrig, page 368, line 29 to line 36, 18 September 1997. Derrig, this is the expert evidence. He is asked questions of Nicaragua cordobas:

Q. Normally the currency has got the dates issued, is that correct?

A. Your Honour, I'm not familiar with those bank notes.

HIS HONOUR: The witness said he is not familiar with these bank notes.

A. I can't be cross-examined on documents that I'm not familiar with.

Now, we will go to the summing up of the judge on laws of expert evidence.

GUMMOW J: You have no more than five minutes.

MRS SINANOVIC: The summing up and the judge said that he was an expert witness. He admitted in the transcript he knows nothing about the currency. The question is why was this permitted and ignored those laws, even in the summing up of the judge and the Court of Criminal Appeal.

GUMMOW J: The question is why there should not be an order for a retrial.

MRS SINANOVIC: Because, your Honour, first of all, in the summons that was before - to expedite this matter there was ample evidence on the chronology of Mr Sinanovic endeavouring to have a fair trial, ample evidence. He is not listened to; he does not get fair trials; and if he is going to be continuously wrongfully convicted when evidence such as this, when experts say, "I do know nothing about the currency", but trial judge can do a summing up and say, "There's your expert evidence", it is not worth the paper it is printed on, and exhibit K speaks for itself. It does not support the indictment.

You introduce to the jury that you take money to buy foreign currency but you indict him to say that he fraudulently misappropriated because he did not buy an interest in a restaurant - two separate issues. The matter goes on further with Derrig in the Greek currency:

In particular are you saying they are valueless in Australia?

A. That's correct.

Q. You have said, I think, that they have no value in Greece either?

A. I can't be - I'm saying that my contacts in London -

hearsay evidence. It is not admissible, your Honour. You do not have anyone from London coming here saying, "Yes, I told Mr Derrig Greek currency is worthless." Nobody knows what that currency exactly is and in the absence of that knowledge you cannot prosecute. The same thing happened in McGuire's case, common knowledge. He was even asked when Mr Vernon from Westpac, again, expert evidence:

did you make any inquiry directly to the issuing authority in Nicaraguan, that is?

A. No, I'm sorry - - -

Your Honour, with all due respect, the Crown - I believe the Crown did make their inquiries with the overseas banks, with Interpol - - -

GUMMOW J: What is your basis for saying that? You are trying to introduce some fresh evidence here now?

MRS SINANOVIC: Well, because - no, no, your Honour.

GUMMOW J: Well, you should not say things like that. Your belief about it is of no point.

MRS SINANOVIC: Well, it is - - -

CALLINAN J: It is also offensive, without evidence having been led in relation to it in the courts below. It is offensive to the people about whom it is said and it should not be said.

MRS SINANOVIC: No, no. It is - one would assume that the Crown would do their job properly and would do these investigations, because if they have got to bring on a prosecution they must do that and you do not have anything before the courts to state otherwise.

GUMMOW J: Anyhow, your time is up, Mrs Sinanovic.

MRS SINANOVIC: Well, your Honour, I am seeking if I could have an extra 10 minutes, that I have not gone - - -

GUMMOW J: No, you cannot have an extra 10 minutes. No, we do not need to call on you, Mr Blackmore.

The applicant seeks special leave to appeal against orders of the Court of Criminal Appeal of New South Wales quashing a conviction for an offence of dishonesty and ordering a new trial of it and adjusting the totality of terms of imprisonment imposed with respect to that offence and others of which the applicant was convicted. The applicant's appeal to the Court of Criminal Appeal succeeded substantially on grounds of misdirection. That court was of the opinion, and we agree, that there was admissible evidence available to sustain a conviction by a properly-instructed jury.

Accordingly, it was appropriate for the Court of Criminal Appeal not to enter an acquittal and that it order that there be a new trial. It was also

necessary and right for the Court of Criminal Appeal to adjust the totality of the sentence imposed on the applicant on the quashing of the conviction the subject of this application. Accordingly, the application for special leave is refused.

AT 4.15 PM THE MATTER WAS CONCLUDED