Kovacs v The Queen S19/2002 [2002] HCATrans 597 (15 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S19 of 2002

B e t w e e n -

LAJOS KOVACS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2002, AT 11.16 AM

Copyright in the High Court of Australia

MR W.C. TERRACINI, SC: May it please your Honours, I appear with my learned friend, MR G.A. NEWTON, for the applicant. (instructed by W.H. Parsons & Associates)

MR G.J. BELLEW: May it please the Court, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ: Yes, Mr Terracini.

MR TERRACINI: Your Honours, our summary of argument is on page 299 of volume 2. I will be brief. What we say is the essential issue in this appeal is that the permitting by the primary judge of the evidence that the appellant was on work release, one, did not need to be lead, but because it was led it cannot be said that there might well have been a different result. I do not for one moment suggest that there was not material on which the jury could find the appellant guilty. The difficulty is extra material, as it were, was introduced which could well have influenced the jury in their decision process.

Now, I do not gainsay that there were warnings and what have you, but there was just no need to have the fact that he had committed a breach of the work release program solely to get heroin. The argument, we say, is flawed that it has to be something important that you breach a work release order. Regrettably, people breach parole, community service orders, work release programs, every day, just because they do not necessarily want to adhere to the discipline of the regime.

So it is not merely an important reason why a person such as the appellant would breach an order of this type and that it introduced extraneous matters into the trial deliberation which were unnecessary. His Honour should have exercised his discretion under 137. In the wash up, as it were, we say that he did not get a fair trial as a result of that material being led.

Even if the Crown wanted to lead the purpose for the visit to the hotel, the material about the work release issue could have been tailored so that the jury did not hear that he was a convicted prisoner and on such a program. That could have been done and is regularly done where issues of prejudice arise. They are my submissions, your Honours.

GLEESON CJ: We do not need to hear you, Mr Bellew.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter. The application is refused.

AT 11.19 AM THE MATTER WAS CONCLUDED