Sinanovic v The Queen S303/2000 [2001] HCATrans 200 (15 May 2001)

Office of the Registry

Sydney No S303 of 2000

B e t w e e n -

HAKIJA SINANOVIC

Applicant

and

THE QUEEN

Respondent

Bail application

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 15 MAY 2001, AT 9.40 AM

Copyright in the High Court of Australia

MR W.C. TERRACINI, SC: I appear for the applicant, your Honour. (instructed by Ramrakha Jenkins)

MR A.M. BLACKMORE: I appear for the respondent, your Honour. (instructed by the Solicitor for Public Prosecutions (New South Wales))

HIS HONOUR: Yes.

MR TERRACINI: Your Honour, I came into this matter yesterday afternoon. Prior to that, there has been a long history of related proceedings where the applicant has been unrepresented and was represented by - - -

HIS HONOUR: He was represented at trial.

MR TERRACINI: He was in relation to this matter.

HIS HONOUR: And he was not represented at the Court of Criminal Appeal.

MR TERRACINI: That is so.

HIS HONOUR: But he appeared and his wife spoke for him and he also made some observations, apparently.

MR TERRACINI: Quite so, your Honour. There are other related criminal proceedings which are on foot. Much the same sort of history applies. Yesterday afternoon a line of authority associated with bail applications was brought to the attention of those who represent the applicant now and to the applicant himself. Other than formally applying for bail, I do not think I can add anything further, bearing in mind what has been recently adumbrated by Justice McHugh and the line of authorities flowing back to Parsons. Special leave has not been granted.

HIS HONOUR: Yes. Well, there is power to grant bail.

MR TERRACINI: There is no doubt, and they are well aware that he has the right to make the application and the Court has the power to grant bail in certain circumstances but other than stressing the arguments put forward in the affidavit, I cannot advance it any further, your Honour.

HIS HONOUR: Just let me identify the affidavit that you move on. That is the affidavit of Mr Ramrakha, is it?

MR TERRACINI: Yes, your Honour.

HIS HONOUR: There is also an affidavit of Maria Antoinetta Sinanovic.

MR TERRACINI: Yes. That is the wife of the applicant, your Honour.

HIS HONOUR: That just sets out the history of the matter, I think.

MR TERRACINI: Yes.

HIS HONOUR: Have you seen those affidavits, Mr Blackmore?

MR BLACKMORE: The only one that I was aware of in these proceedings was the affidavit of Mr Ramrakha. I have not seen that other affidavit, unless that was the same affidavit that was before the Court of Criminal Appeal.

MR TERRACINI: Yes.

MR BLACKMORE: I can indicate, your Honour, from recollection, there were three affidavits before the Court of Criminal Appeal.

HIS HONOUR: Well, it is titled, "In the High Court of Australia" but it is basically just the chronology. Perhaps I can hand it down to you to show you that.

MR BLACKMORE: So, we were under a misunderstanding that the applicant would not be relying upon this particular affidavit, but - - -

HIS HONOUR: I see. Are you relying on that affidavit or should I disregard that affidavit?

MR TERRACINI: Your Honour should disregard it.

HIS HONOUR: Very well. Well, I will just take regard to the affidavit of Mr Ramrakha.

MR BLACKMORE: In relation to the affidavit of Mr Ramrakha, your Honour, in paragraphs 8 and 9 it purports to set out what is, in essence, the Crown case.

HIS HONOUR: Just let me find that affidavit. I have read all these papers. Here it is, on the top. Yes, which paragraph?

MR BLACKMORE: It is on page 2 of that affidavit. Paragraphs 8 and 9 purport to, in essence - particular paragraph 8, set out the Crown case and argue aspects. I am not going to take formal objections to the affidavit but I do point out that in our contention that is not an accurate statement of the Crown case. A more accurate summary is found at paragraphs 8 through to 13 of the Court of Criminal Appeal decision. If the matter is further argued, I would take your Honour to those paragraphs. Otherwise, I do not take objection to it.

HIS HONOUR: As I understand it, from Mr Ramrakha's affidavit and from the application for special leave, really, the case that would be advanced in this Court is twofold: first of all, factual matters of the kind that are mentioned in Mr Ramrakha's affidavit and, secondly, a legal point that the direction given by Judge McGuire to the jury on the question of dishonesty was inaccurate.

MR BLACKMORE: Yes.

HIS HONOUR: And the suggested foundation of the grant of special leave, relevant to the application for bail, would, I assume, be that what the Court left unclarified in Peters might come up for clarification in this case. Is that how you understand the matter to be - - -

MR BLACKMORE: That is the way it is argued, yes, your Honour, for the applicant. We have a response in relation to each of those matters which I can come to.

HIS HONOUR: Yes. Mr Ramrakha says that he thinks there is an "extra-ordinarily high" possibility "of success" somewhere: "extra-ordinarily high prospect of success". It is a very courageous - - -

MR BLACKMORE: He is a very confident advocate in his own cause for his client but we would submit that it is somewhat less than that and, in fact, we submitted before the Court of Criminal Appeal that it was barely arguable but, perhaps, arguable at most is where we would say, not a very strong case.

HIS HONOUR: Yes, very well. Perhaps you could help me with this, Mr Terracini. I did not quite understand what is the prospect of liberty of the applicant? In other words, he is still serving other sentences. A trial, I think, was due to start yesterday in the District Court.

MR TERRACINI: It started about 2 o'clock, I think, your Honour.

HIS HONOUR: Are you in that trial or not?

MR TERRACINI: No.

HIS HONOUR: And that trial concerns another offence of dishonesty which, if he is convicted in that trial, would extend his period of incarceration?

MR TERRACINI: It may. That would be arguable on sentence but he is not due for release until April next year.

HIS HONOUR: Yes. Very well, thank you very much. I understand. I have read all the documents. Is there anything else you wish to say - your solicitor wanted you to say?

MR TERRACINI: Yes. This is the only sentence that he is serving at the moment.

HIS HONOUR: I understood that. It is the only sentence he is serving but he is before a court at the moment on another charge which might, though not necessarily, lead to an extended period of incarceration.

MR TERRACINI: It could. He appears unrepresented and the trial will go some weeks, I expect, your Honour.

HIS HONOUR: I see. The only reason for asking that, obviously, was if, but for this matter, he would be at liberty, then that, I think, is a relevant consideration to decide whether to grant bail or not.

MR TERRACINI: Yes, certainly.

HIS HONOUR: But if he is serving a sentence and is before a court at the moment, then it is not quite in the situation where it would be if but for the subject sentence he would be completely at liberty.

MR TERRACINI: Yes. Perhaps I should say it has been explained to him that if a special leave date is actually fixed, this application could be brought at some future time if the circumstances change.

HIS HONOUR: Yes, that is true, but I think I should deal with the matter as it has been put before the Court now.

MR TERRACINI: Certainly, yes.

MR BLACKMORE: Your Honour, can I clarify the last issue in fairness to the applicant? At the Court of Criminal Appeal it was conceded by the respondent that if, but for this trial - if, but for this particular matter before the Court now, he was to receive bail, he would also receive bail on the trial matter. So, it is not contended that the matter that is presently before the Court on trial would not be a matter that he could not obtain bail on. Obviously, it would be a matter for him to make application to that judge but our position would be that in the past he had bail on that matter.

HIS HONOUR: Yes, I understand, thank you. That is a very proper concession.

This is an application for bail by Hakija Sinanovic (the applicant).

The facts

On 13 January 1999, at his trial before Judge McGuire and a jury, the applicant was found guilty of an offence against s 178BA of the Crimes Act 1900 (NSW). The indictment alleged that the offence had occurred on 16 December 1995 at Sydney. The offence alleged was that of dishonestly obtaining for himself a diamond ring, by deception, by representing that he would, on that day, deposit into a bank account of Stefano Designer Jewellery Pty Ltd a cheque for $27,000, being the price of the ring. No such cheque was deposited.

After a brief retirement, the jury returned with a verdict of guilty. Following the jury's verdict Judge McGuire convicted the applicant. The maximum penalty provided upon conviction of the offence was 5 years imprisonment. Judge McGuire sentenced the applicant to imprisonment for a minimum term of 16 months commencing on 16 May 2003. That was a date after the due completion of a sentence which had been imposed on the applicant earlier for offences with which this Court is not concerned. Judge McGuire ordered that the primary sentence which he imposed on the applicant would expire on 15 September 2004, after which he ordered that the applicant serve an additional term of 12 months imprisonment.

The applicant appealed to the New South Wales Court of Criminal Appeal. That court, constituted by Wood J, CJ at CL, Hulme J and Greg James J, heard the appeal on 4 February 2000. The applicant appeared in person. His wife was permitted to speak for him. The applicant also made a number of observations to the court. In their reasons, the judges referred to difficulties which they had experienced in dealing with all of the points raised in the appeal because of the distractions from the issues at trial and the mode of presentation of the arguments. Those are not uncommon problems where an applicant appears in person. Nevertheless, for reasons given on behalf of the Court of Criminal Appeal by Hulme J, that court dismissed the applicant's appeal against his conviction. See R v Sinanovic [2000] NSWCCA 397. There were minor adjustments to the terms of the sentence.

The applicant then filed an application for special leave to appeal to this Court raising a number of grounds. I have considered the written statement in support of the application for special leave and the statement of the respondent opposing the grant of special leave.

The applicant, in purported defence of the utility of his application to this Court, applied to the Supreme Court for bail. That application was heard by Greg James J on 2 May 2001. It was dismissed. His Honour concluded that there were no "special or exceptional circumstances" to warrant the immediate release of the applicant from serving the sentence which "stands good until and unless set aside by a competent Court of Appeal."

The prospects of special leave to appeal

The applicant then commenced the application that is now before me. This application is not an appeal from the order of Greg James J. It is an invocation by the applicant of the separate jurisdiction of this Court.

In support of the application, an affidavit of Mr Karam Ramrakha, solicitor, was read. This affidavit deposes to various discrepancies said to have arisen in evidence at the trial concerning the identity of the diamond ring in question and the contested circumstances concerning its possession at and about the time of the offence. The affidavit also complains of Judge McGuire's summing up to the jury which, it says, "in relation to the elements of the charge [was] inadequate and the jury was not properly directed in relation to the basis of the charge and the elements of dishonesty and deception". Mr Ramrakha states that, in his view, the application for special leave has an "extraordinarily high prospect of success".

The disputed circumstances of the identity of the ring in question and the possession of the ring are factual matters which would not ordinarily attract special leave from this Court. This Court is not, as such, another Court of Criminal Appeal. Its intervention in criminal and sentencing matters is usually confined to questions of law and important principles. Some particular attention to the facts of this case might be warranted because the applicant was not legally represented before the Court of Criminal Appeal, as he is now. However, I could not describe the factual issues raised by the application, as presently understood by me, as a promising foundation for a grant of special leave.

The complaint about the directions to the jury may be in a different class. The issue concerning the directions to be given to a jury in a case of offences of dishonesty was recently considered by this Court in Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493. The Court in that matter was divided. It is possible that the present case might justify a return to that subject. I say no more than that it is possible. The somewhat unpromising factual circumstances of the case may make it an unsuitable vehicle for the grant of special leave to elucidate the legal issues of dishonesty and the directions to be given to a jury in an offence involving dishonesty. However, I shall assume that there is some prospect that special leave may be granted. Unlike Mr Ramrakha, I would not regard those prospects as "extraordinarily high". I simply regard them as possible.

The applicable principles

The principles to be applied in this application are not in doubt.

1. The power to grant bail in this Court is not regulated by statute. It stems from the inherent jurisdiction of the Court. See Robinson v The Queen (1998) 65 ALJR 519.

2. The purpose of the exercise of the power is to prevent the processes of this Court, as envisaged by the Constitution, being rendered futile. See Peters v The Queen (1996) 71 ALJR 309 at 310. Markovina v The Queen (1998) 72 ALJR 1522 at 1523.

3. Nevertheless, the power still involves the exercise of a jurisdiction repeatedly described as extraordinary and exceptional. It is not affected, as sometimes it is under statute, by a stated presumption in favour of liberty. Its grant is exceptional because otherwise, it has been said, too ready a provision of bail might "whittle away the finality of the jury's finding and treat the jury verdict merely as a step in the process of appeal." Chamberlain v The Queen [No 1] [1983] HCA 13; (1983) 153 CLR 514 at 519.

4. This Court has adopted a test of even greater stringency when the application for bail is made before special leave has been granted. It is fair to say that bail is very rarely granted at that stage, although the power to grant it exists. See Caratti v The Queen, unreported, 22 November 2000, Vol 22 The Legal Reporter No 1, per McHugh J; see also the course adopted by Callinan J when Marotta et alii were before the Court for the first time: Marotta v The Queen, unreported transcript, 19 October 1998 before Callinan J and Weston v The Queen, unreported, 5 September 2000 per McHugh J.

5. This notwithstanding, bail has sometimes been granted prior to the provision of special leave. Thus Dawson J granted bail in Peters before special leave had been granted. See Peters v The Queen (1996) 71 ALJR 309 at 310. Bail might, for example, be granted peremptorily following an important ruling by this Court which has clear application to other cases where special leave has been sought and awaits a hearing. This is what occurred following Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 when this Court held that State laws providing for majority verdicts could not validly apply to the trial on indictment of an offence against federal law, by reason of s 80 of the Constitution. The cases affected were clear. The principle was clear. And the consequences for pending cases secured prompt intervention, usually with the consent of the prosecution.

6. Once special leave is granted, this Court will consider an application for bail in a way more favourably than before although it remains an exceptional provision. See Velevski v The Queen, unreported, 2 November 2000, per Gleeson CJ (refusing bail). In Marotta v The Queen [1999] HCA 4; (2000) 73 ALJR 265 at 267 Callinan J, without pretending to lay down an inflexible checklist, referred to a number of considerations deemed relevant in that case in which bail was granted. The grant of bail there was later shown to have been fully warranted. This Court unanimously allowed the appeal and set aside the convictions in issue in that case: Bull v The Queen (2000) 74 ALJR 836. The considerations collected by Callinan J, or such of them as are relevant, have been said by the New South Wales Court of Criminal Appeal to be similar to the considerations taken into account by the courts of New South Wales in the grant of bail under the statute operating in that State. Reg v Valevski [2000] NSWCCA 445 per Barr J (Spigelman CJ and Hulme J concurring).

7. In cases where special leave has not been granted by this Court it will ordinarily be appropriate, as was done in this case, for the party seeking bail to make an application first to the court from whose judgment special leave is sought. cf Jennings Pty Limited v Burgundy Royale Investments Pty Limited [No 1] [1986] HCA 84; (1986) 161 CLR 681 at 684.

8. A special consideration may sometimes arise where it is clear that, were bail to be granted, the prisoner will continue to serve the sentence at large in circumstances where it would not be possible for the sentence to be recommenced or varied, were special leave ultimately to be refused or, if granted, were the appeal to be dismissed. See Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631 at 635, 642 and Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 490-491 [156]-[166]-[168].

Bail is refused

Having regard to the foregoing principles, this application must be dismissed. It could not be said that the extraordinary and exceptional jurisdiction should be exercised in these circumstances even before this Court has considered whether to grant special leave. Although a grant of special leave is possible, I am far from convinced that it is highly likely, a fact that distinguishes this case from Peters. Necessarily, I say this without expressing any concluded opinion. What I have stated is no more than my impression at this time.

In the circumstances of this case the application for special leave ought first to be considered. In the light of the outcome of the application, when it is decided, the applicant may renew his application. If the special leave application fails, no occasion would arise to provide bail. If the application succeeds, the application can be reconsidered in the light of any matters elucidated in the hearing of the application for special leave. Even then the grant of bail remains exceptional. As past cases show, many factors are relevant to the exercise of the discretion. But the chief of these remain the assessment of the likelihood that the appeal will be allowed and the convictions quashed and the conclusion that, to refuse bail, would render the outcome of the appeal nugatory having regard to the remaining term of imprisonment to be served. Neither of those considerations is present in this application at this time.

Accordingly, the application is refused.

MR TERRACINI: If the Court pleases.

MR BLACKMORE: If the Court pleases.

HIS HONOUR: The Court will now adjourn.

AT 10.00 AM THE MATTER WAS CONCLUDED