Aggarwal v The Queen B10/2002 [2002] HCATrans 64 (28 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B10 of 2002

B e t w e e n -

ANITA AGGARWAL

Applicant

and

THE QUEEN

Respondent

Application for bail

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 28 FEBRUARY 2002, AT 10.55 AM

Copyright in the High Court of Australia

MR W. SOFRONOFF, QC: May it please the Court, I appear for the applicant. (instructed by Sharma Lawyers)

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

HIS HONOUR: Mr Sofronoff, I wonder if you can help me with a couple of matters. When was this Act introduced?

MR SOFRONOFF: 1992.

HIS HONOUR: Do the other States, do you know, have any similar legislation?

MR SOFRONOFF: I can tell your Honour that New South Wales, Victoria and South Australia have provisions in their Sentencing Acts dealing with errors of law, not of fact.

HIS HONOUR: And the same Court of Appeal or the same court - - -

MR SOFRONOFF: A court can correct an error of law or in sentence beyond the power of available but, no, there is no provision for errors of fact of this kind.

HIS HONOUR: Just, though, with respect to those other provisions, do the other States - the legislation of other States, does it contemplate that any court at any level can revisit its decision on the basis of an error of law? Look, you may not know that immediately.

MR SOFRONOFF: I think the answer is, yes, because I recall that the provisions refer to a court being able to correct slips, errors occasioned by sentencing beyond the power conferred by statute and matters of that kind.

HIS HONOUR: I suppose there was never a slip rule in relation to criminal proceedings, is that right?

MR SOFRONOFF: I am not sure if the Criminal Code has one, your Honour, in Queensland.

HIS HONOUR: No, but in general, one would not expect criminal matters - - -

MR SOFRONOFF: No, one would expect that there would be an appeal instead.

HIS HONOUR: Yes. I suppose the power that section 188 confers is a much broader power than a court would ordinarily have under the "fresh evidence" rule.

MR SOFRONOFF: Yes, your Honour, it is akin to treating a sentence the way interlocutory orders are treated under the Rules where one can always reopen on the footing that circumstances have changed. So, it makes a - - -

HIS HONOUR: Does it mean that, the circumstances - not the circumstances have changed?

MR SOFRONOFF: I am sorry, I have put that badly: where one can demonstrate that the facts as presented to the court were incorrect, so it is, indeed, broader than the position under the interlocutory rule.

HIS HONOUR: You can understand such a power, perhaps, being conferred upon the sentencing judge. It just strikes me as a little unusual that a Court of Appeal, which presumably has the time to take an overview of all of the facts when the matter comes before it, can have another look at its decision and, in effect, reopen it, and it just seems to me to be a little unusual. Do we have a second reading speech on any of this?

MR SOFRONOFF: Your Honour, I do not have one here and, I confess, I have not looked at it but your Honour is raising a question whether - or a question arises from what your Honour has said whether the expression "court" includes a court on appeal that has imposed a sentence after a successful appeal.

HIS HONOUR: You see, it is an unusual situation. The trial judge deals with the matter and presumably makes findings of fact on the submissions that are made to him, the parties not seeking to prove them by evidence. But your client pleaded guilty, is that correct?

MR SOFRONOFF: Yes, she did.

HIS HONOUR: So, there was no trial. The only facts that were before the sentencing judge were the facts that were contained in the submissions which were not gainsaid in any way by the - - -

MR SOFRONOFF: No quite, your Honour. I think the transcript of the secretly recorded conversation that my client had with the witness she attempted to suborn was in evidence and from that inferences were raised that she did it for her father's sake. She said as much on the tape.

HIS HONOUR: Did she give evidence at her father's trial?

MR SOFRONOFF: Yes.

HIS HONOUR: And it is said that that evidence is different from the finding that was made by the first Court of Appeal, is that right?

MR SOFRONOFF: Yes. It is said that it is in complete conflict with the factual assumption that underlay the sentence at first instance and on appeal.

HIS HONOUR: Let me just make sure I have it in my head. One starts with the trial of her father, right?

MR SOFRONOFF: Could I give your Honour the sequence?

HIS HONOUR: Yes.

MR SOFRONOFF: Mr Punj is her father - P-U-N-J. He - or on his behalf a document is forged to aid the export of some grain. That forgery is picked up by Quarantine who come and interview him. He puts up a false story to them. He says it was a dummy prepared for training purposes. The Quarantine officers go away. They return. On that occasion they have an interview with my client and Punj. The same story is repeated. Punj goes to see the witness Slack and tries to persuade her, being a former secretary, to agree that it was her fault, she had dummied it up for innocent purposes. My client goes to see Slack and tries to - - -

HIS HONOUR: Who worked for the father's company.

MR SOFRONOFF: She works for her father in the company.

HIS HONOUR: And Ms Slack also works - - -

MR SOFRONOFF: Used to work for. Used to. So, my client says to Slack, "You might be interviewed by Quarantine officers. Would you mind telling them that when you were working for my father, you did it, and that would help him; it would get him out of this problem, and it will go away." That conversation was recorded. He is charged with forgery and attempting to pervert the course of justice. She is charged with attempting to pervert the course of justice. They come up for trial. She pleads guilty. She is dealt with by Judge Brabazon. The Crown puts - - -

HIS HONOUR: I am sorry, she pleads guilty and, of course, she is sentenced before the trial of her father? Is that right?

MR SOFRONOFF: Yes, that is right. She was sentenced in June last year. Judge Brabazon sentences her to four months imprisonment. He observed that the Queensland authorities obliged him to give her a term of imprisonment although he accepted that she had done it partly for herself but largely for her father, and that was what the Crown urged upon him. We appealed and the appeal was successful because the court agreed that the judge had erred in thinking he was obliged to sentence her to a term of imprisonment; accepted, as was evident on the record - the only inference, I think - Justice Davies referred to it as an irresistible inference on the record - that she did it for her father, and suspended the sentence.

HIS HONOUR: Exclusively.

MR SOFRONOFF: Not exclusively.

HIS HONOUR: Can you take me to what Justice Davies - Justice Davies was the presiding judge in the first Court of Appeal, was he?

MR SOFRONOFF: No, the President was, your Honour.

HIS HONOUR: But he gave the judgment of the court with which the others agreed?

MR SOFRONOFF: Yes. Your Honour will find that in exhibit - - -

HIS HONOUR: Is that in NKS2?

MR SOFRONOFF: NKS3, your Honour.

HIS HONOUR: Yes, NKS3. Yes, I think I have that, Mr Sofronoff. Yes, on page 3 of his Honour's reasons, Justice Davies says, line 13:

The applicant, apparently in order to assist her father . . . also sought to persuade the woman to falsely tell the inspector and, indeed, to initiate a meeting - - -

MR SOFRONOFF: Yes. The key is at the foot of that page, your Honour.

HIS HONOUR: Yes.

It is reasonable to accept that she did what she did for the purpose of helping her father avoid what otherwise appeared to be an inevitable conviction and gaol sentence.

Now, that is the end of that matter, right?

MR SOFRONOFF: That is the end of that matter, your Honour.

HIS HONOUR: All right. Now, where do I find the finding of the second Court of Appeal?

MR SOFRONOFF: I will give that to your Honour because it only became available the other day. I will hand that up to your Honour.

HIS HONOUR: Thank you. Justice Davies, again, is sitting on the court.

MR SOFRONOFF: Yes. He presided on that occasion.

HIS HONOUR: It is differently constituted, is it not?

MR SOFRONOFF: Yes, it is, your Honour.

HIS HONOUR: Let me just read this.

MR SOFRONOFF: The key passage your Honour will find at page 5.

HIS HONOUR: I am looking at page 4 though first:

The most important of these by far was that the main reason for the respondent committing the offence was to assist her father to avoid prosecution . . . It is true that the respondent also had another reason, namely that she was concerned to protect herself . . . But there is no doubt that the substantial reason for this Court's removal of the requirement that a period of actual custody be served was that the main reason . . . was to avoid what appeared to be an inevitable gaol sentence for her father -

How did her evidence at her father's trial get before the Court of Appeal on her appeal - - -

MR SOFRONOFF: Like this, your Honour: she is dealt with by Judge Brabazon in June. We appeal and we succeed in October last year. The trial of her father begins. She is called as a Crown witness. If the evidence she gives is consistent with what she said to the witness on the tape, "My father sent me - this will help him" and so on, that would - - -

HIS HONOUR: No, I understand all that. I am more concerned about how does the evidence, the transcript of the evidence that she gave at her father's trial get admitted into evidence, as it were, against her in the Court of Appeal?

MR SOFRONOFF: It was simply - - -

HIS HONOUR: Handed up, in effect.

MR SOFRONOFF: Exhibited, I think, to an affidavit of my learned friend's instructing solicitor.

HIS HONOUR: And was received without objection?

MR SOFRONOFF: Yes.

HIS HONOUR: The whole thing strikes me as very unusual because the first - courts of appeal make findings of fact all the time; concurrent findings of fact. Sometimes they differ on their findings of fact. The first Court of Appeal made a finding of fact which, on the evidence before it, was an available finding, is that not right?

MR SOFRONOFF: Yes, and more than that, on the available evidence was correct.

HIS HONOUR: A very proper finding. Then fresh material is introduced, material that has become available after - did that only become - - -

MR SOFRONOFF: After the sentence, yes, after the original appeal.

HIS HONOUR: After the original appeal. The trial does not take place of her father until after her appeal, is that right?

MR SOFRONOFF: Your Honour, that is correct, yes.

HIS HONOUR: Well, I must say that strikes me as a very, very unusual result. It really puts a person very much at risk and tends to subvert the rule that when a person pleads guilty and is dealt with, in theory, there is nothing to be gained or lost by that person giving evidence. Under this, the person is in jeopardy again.

MR SOFRONOFF: Not only that, your Honour, but what happened here was that while the Crown - the second appeal, as I will call it - the second appeal was on foot while Punj's trial was also on foot. Different counsel appeared in each for the Crown. While the Crown was maintaining - I am sorry, I put that badly. The reopening proceeding was commenced when Mr Punj's trial was still on foot. Mr Hanson appeared for the Crown to apply for reopening. My learned friend was continuing to appear at the trial. The Crown was contending at the same time, in effect, that Ms Aggarwal's evidence should be rejected as false by the jury and accepted as true - - -

HIS HONOUR: Exactly, yes. Well, I can see the potential for that. I would have thought myself that the occasions for the invocation of this section or the application of this section would be very rare. It can have all sorts of mischievous tendencies, I would have thought.

MR SOFRONOFF: And, your Honour, the character of the evidence, in our submission, which ought to be put before a court to satisfy it that a clear factual error has occurred merits examination here. The Crown did not attempt to establish that what Aggarwal said before the jury was true and therefore merited - - -

HIS HONOUR: Well, that is the other point that worries me, that submissions are made and materials agreed upon as relevant material before the sentencing judge. That material is the material then that goes before the Court of Appeal. Then something else happens after the Court of Appeal has disposed of the matter and a whole lot of other evidence is then put before the Court of Appeal and not tested in any way. I suppose in theory, Mr Sofronoff, you could have sought, in effect, a kind of a trial in the second appeal.

MR SOFRONOFF: We may have, your Honour, but the approach we took was that it was for the Crown to put before the court material which would justify the court in a conclusion that an error fact had been demonstrated. The Crown put before the court only transcripts of her evidence, did not put before the court the whole of the evidence at the trial to see it in context and then in its written outline did not submit that what she had said at the trial was untrue. One can understand why, because it would be making inconsistent submissions about the same evidence. In its outline what the Crown said was if what she was saying was true, then there is a clear factual error.

HIS HONOUR: Well, the second Court of Appeal has to be satisfied that a sentence has been imposed "on a clear factual error of substance".

MR SOFRONOFF: Yes.

HIS HONOUR: Well, it has to be clear.

MR SOFRONOFF: Yes. So what they did was to put up a piece of transcript.

HIS HONOUR: Courts make findings on the facts before them. When it says "on a clear factual error of substance", does that mean on the facts as they were at the time of the sentencing or on facts that crop up at any time within 28 days after sentencing?

MR SOFRONOFF: Your Honour, they would no doubt put it, and be correct in putting it, that if they can show by any evidence that later emerges that at the time of sentence an error had been made, the error had to exist at the time of sentence.

HIS HONOUR: But there was not an error at the time of sentence because - I suppose you could argue that there was but it certainly only became apparent afterwards.

MR SOFRONOFF: What the court did and what Justice Davies' reasons show is that they did not consider the extent to which a court in a position of a Court of Appeal could have regard to a transcript of evidence and make a credit finding and they did not do that but instead treated her statement as something that would activate section 188 because it was treated as though it were an estoppel case.

HIS HONOUR: As if what she said in her evidence gave rise to an estoppel.

MR SOFRONOFF: Against her. Now, she could not deny it before the Court of Appeal.

HIS HONOUR: But I suppose, Mr Sofronoff, a possible answer to that might be that you could have chosen to test that, if you had wanted to, by seeking to explain - calling her perhaps, seeking leave to call her before the Court of Appeal - - -

MR SOFRONOFF: Yes, your Honour, but on the facts of this case - and Justice Ambrose observed this, and I could be forgiven for saying with a gentle smile on his face, but he made this observation to my learned friend: perhaps what she was doing at the trial was saying what she was saying in order to help her father. Now, the Court of Appeal would need to be satisfied that what she said at the trial of her father was true and, therefore, demonstrated a factual error and it would have to draw that conclusion in the circumstances of the case, where she said it, having been called as a Crown witness against her father and having been a reluctant Crown witness against her father - a reluctant witness, that is she was subpoenaed.

HIS HONOUR: There was no application to have her declared hostile?

MR SOFRONOFF: Yes, she was declared a hostile witness. She was then cross-examined. So that was the context in which a daughter is called before a jury trying her father for offences which will result in sentence of imprisonment if he is convicted. She tells this story and that story is then put up to the Court of Appeal as demonstrating that she never acted in the commission of her own offence for her father. In our submission, that was never enough for the Crown to do and, indeed, the Crown did not advance it as enough because in their written outline they really put up the question, if that is true, then there has been demonstrated clear factual error.

HIS HONOUR: I think I might hear from Mr Griffin, Mr Sofronoff.

MR SOFRONOFF: Thank you, your Honour.

HIS HONOUR: Mr Griffin, what do you say is the clear factual error of substance?

MR GRIFFIN: Your Honour, it was stated by Mr Hanson to the Court of Appeal on that original application on 7 November and it is this, that the court sentenced Ms Aggarwal on the basis that she had indulged in the activity for the purpose of helping her father. In sworn evidence some short time later she said that she did it only for herself.

HIS HONOUR: Did she say only for herself?

MR GRIFFIN: Yes, absolutely. That is absolutely clear and perhaps I can refer your Honour to the passage, but I think my friend would agree with that. There was cross-examination to some considerable extent of her about that. She did it merely for herself on the basis that as she had told a white lie - - -

HIS HONOUR: Mr Griffin, let me ask you this: whether she did it for herself or for her father or for both of them would not be a fact in issue at her father's trial, would it, in the sense that it might have gone to her credibility but he had no bearing on the offence with which her father was charged?

MR GRIFFIN: Well, it did really, with respect.

HIS HONOUR: What was that?

MR GRIFFIN: I think in the material, if we can point that to your Honour - - -

HIS HONOUR: Well, she admitted the approach. She admitted that she had attempted to pervert the course of justice. The only question was her motive for doing so.

MR GRIFFIN: Well, in the way the case was put to the jury, the jury had to decide whether her father asked her to do it or, in effect, whether she did it on her own behalf with her father's connivance, in other words, with her father - - -

HIS HONOUR: You are saying the defence that the father mounted was that this was done completely independently of any encouragement or request by him?

MR GRIFFIN: Yes, that is so. And so the jury were asked to render a special verdict in relation to Ms Aggarwal's behaviour and the jury found, in effect, that she went to her father for her own purposes but with her father's knowledge or connivance. This was the question that was asked: if he was guilty in respect of an involvement by his daughter, Ms Aggarwal, on what basis was it? They answered that he was guilty by being a party to the offence by Ms Aggarwal. So to answer your Honour's question, it really was relevant for the jury to consider that in the case against the father and, in effect - - -

HIS HONOUR: But the father could have made the request and she could still have been doing it for any of the three purposes that I have mentioned. Whether the father made the request or not, she could have been doing it for her own purposes, she could have been doing it for her father's purposes or she could have been doing it for both, whether he made the request or not.

MR GRIFFIN: Well, as the jury found, he was a party to Anita Aggarwal's going, if not - perhaps "independently" is not the right word but of her own volition.

HIS HONOUR: But that does not necessarily conclude what her motive was.

MR GRIFFIN: Except that by the jury's finding, at least, it is rather more consistent with the evidence that she gave and different from the original basis of the Court of Appeal's earlier decision.

HIS HONOUR: You have to say rather more consistent.

MR GRIFFIN: Rather more consistent, yes.

HIS HONOUR: You cannot say not inconsistent with something else, with the possibilities I have put to you.

MR GRIFFIN: If I could use your Honour's phraseology, if I may.

HIS HONOUR: All right, thank you for that. Now, let me ask you this: what public interest is served by this woman being locked up for four months if her application for special leave succeeds and an appeal succeeds? I know there are statements. I know that most of the people on this Court, talking about falsifying the verdict of a jury and undermining public confidence and acting contrary to the public interest in granting people bail, but I cannot think of anything more damaging to the public interest than for somebody to be locked up in prison when it should subsequently turn out to be - and I am not expressing a view of this case - that the person should not have been in prison?

MR GRIFFIN: Your Honour, I cannot contradict that general proposition. The submission that is made in this case is that this is legislation which is, if not peculiar to Queensland, clear, precise, broad legislation which allows a court, including the Court of Appeal, to inquire into the circumstances of a sentence where certain factual issues have changed.

HIS HONOUR: Mr Griffin, I noticed from a remark that was made by Justice Davies, as I read it, his Honour would probably have been disposed to grant bail if he had thought that the court had any remaining jurisdiction to do so after having disposed of the appeal.

MR GRIFFIN: Your Honour, I have no doubt that that was the approach which his Honour was expressing.

HIS HONOUR: Well, it is something of an answer to the proposition that it is a State matter. It is now with us, as it were, and we do know that the State court had a disposition in a certain direction, but probably correctly, I would think, without expressing any final view on it, was of the opinion that its jurisdiction was exhausted.

MR GRIFFIN: Yes. I think that was something that as the discussion developed I was alerted to and there was not sufficient time spent on the argument, but that was the view that I very quickly formed and, having looked at the matter later, I think that was correct, that their function was completed at the point where the judgment was amended.

HIS HONOUR: I am just giving you an opportunity to deal with some of the matters that have passed through my mind. It is also a double jeopardy case, is it not? You know the statements that have been made about double jeopardy.

MR GRIFFIN: Your Honour, I am before the High Court in three weeks time arguing very much that point in the matter of Carroll, so I understand what your Honour is saying.

HIS HONOUR: Yes. Well, I cannot sit in Carroll because I acted for Carroll in this court.

MR GRIFFIN: Yes.

HIS HONOUR: In a sense, I suppose one of the trials, as it were, or one of the instances of jeopardy arises from the applicant's own application but - - -

MR GRIFFIN: That is the point that I would make.

HIS HONOUR: Yes, but it is still double jeopardy. She still goes before the trial judge. She is sentenced there. Leave out the second proceeding altogether, and then she is back before the Court of Appeal. So she has been subjected to double jeopardy.

MR GRIFFIN: Except it is, with respect, by her own making. That clear factual error - - -

HIS HONOUR: Well, I know.

MR GRIFFIN: And I have not answered your Honour's first question to me, the clear factual error is that it is now said that she acted for her own part and on her own behalf. That comes from nowhere else but from her own sworn evidence.

HIS HONOUR: But what did she say in-chief? Did she say in-chief she did it for herself entirely?

MR GRIFFIN: At every point where she gave sworn evidence she asserted consistently that she did it for herself. The sentence, your Honour will appreciate, occurred in this way: both parties, Ms Aggarwal and her father, Mr Punj, were arraigned before the jury. I am not sure actually but I think they were arraigned and they both pleaded not guilty.

HIS HONOUR: All right, I understand that. Mr Griffin, you say at every point of her sworn evidence in her father's trial she said she did it for herself?

MR GRIFFIN: Yes. What went before - - -

HIS HONOUR: Obviously in order to exculpate her father, is that - - -?

MR GRIFFIN: That was certainly material that was used by the defence eventually but she was a witness called by the Crown.

HIS HONOUR: I understand that but a statement to that effect could have no purpose other than to exculpate her father. It does not reflect any credit on her.

MR GRIFFIN: No, and at that point, I suppose - I think that is probably correct, yes.

HIS HONOUR: Well, it has to be correct I would have thought.

MR GRIFFIN: Yes.

HIS HONOUR: So, she is giving evidence and she says, "I did it entirely off my own bat." Why, objectively, is that inherently more likely to be true than what was said on her behalf without contradiction in submissions to the sentencing judge?

MR GRIFFIN: Because it is sworn evidence, and as Justice Davies pointed out - and it is a thread through the decision, which has only become available this morning, so I have had some time to read it but not digest it completely - - -

HIS HONOUR: But Mr Griffin - - -

MR GRIFFIN: It was an admission against - - -

HIS HONOUR: I know that. It might be sworn evidence and it might be an admission against interest which is questionable. It is only an admission against interest, really, in view of section 188 of the Act, because otherwise, having been dealt with, it is highly unlikely that her interest in fact could have been affected at all. She would think, in effect, she is away scot-free, as it were. Not scot-free, but you know what I mean.

MR GRIFFIN: Yes. I am trying to think whether, in the giving of evidence at that point, with the exception of 188 - - -

HIS HONOUR: With all due respect it seems to me to be a very shaky basis upon which to find "a clear factual error of substance" because I can see all sorts of reasons why - indeed, one compelling reason why she might have been lied under oath at the trial - - -

MR GRIFFIN: That, of course, is a different issue.

HIS HONOUR: Well, no, it is not because the court has to find "a clear factual error of substance" for section 188 to apply.

MR GRIFFIN: Yes.

HIS HONOUR: Now, she is not going to be punished for lying at her father's trial. That might be a separate matter. That might give rise to a perjury charge.

MR GRIFFIN: Well, that was the point I was making, your Honour, that that is the issue which is said to - - -

HIS HONOUR: It could well give rise to a perjury trial, but it seems to me that it is a very shaky basis upon which to find that "a clear factual error of substance" had been made.

MR GRIFFIN: I think the Court of Appeal juxtaposed, on the one hand, what was presented to them as the original sentence, that is, certainly not agreed facts but statements made from the Bar table which formed the basis - - -

HIS HONOUR: It is the problem, is it not? People make statements from the Bar table. They are generally taken to be true. If the Crown wishes to challenge them, the Crown can say so and then require that sworn evidence be given. That often happens. A couple of times when I was representing the Crown I insisted that that happen. Counsel's submissions can be a somewhat unsatisfactory vehicle, at that stage, for the conveyance of facts.

MR GRIFFIN: But, of course, there was no contest nor were the facts sought to be changed or ameliorated at the first appeal. So that was the accepted basis upon which the appeal was argued.

HIS HONOUR: Well, that brings me to a matter which does trouble me, and I have already raised it with Mr Sofronoff and it is really, in a sense, in your favour. I take it there was a tender made of the sworn evidence during the hearing of the second Court of Appeal proceedings, is that right?

MR GRIFFIN: Yes, and that material was produced by the respondent, that is, Ms Aggarwal.

HIS HONOUR: Why was it produced by her? I cannot understand why she would do that. Do you know what happened, Mr Sofronoff?

MR SOFRONOFF: Your Honour, the matter came on before the court in November last year. Mr Hanson appeared for the Crown and Mr Vasta appeared for our side. The Crown I think at that point led evidence about the contradictory evidence and it was on that basis that the matter was then reopened and adjourned until February. Then in February both sides put forward a book of material and the Crown's book contained transcripts and I think we repeated some of that transcript in our material.

HIS HONOUR: It looks as if the material went in, in effect, by consent really.

MR SOFRONOFF: It certainly was not objected to and we repeated it, so there was no controversy about it. Our point at the hearing was that it did not show a clear factual error unless the court was satisfied, on all the evidence, that that version was true and everything else was false.

HIS HONOUR: Was the submission made of the kind that I have just suggested to Mr Griffin - - -

MR SOFRONOFF: Yes.

HIS HONOUR: - - - that she was probably lying under oath when she - - -

MR SOFRONOFF: Well, both are at least equally open. Her conduct at the trial, if what she was saying was untrue, was consistent with the obvious inference drawn from all the other material that she did everything to help her father. That may give rise to a charge of perjury. But one would have to be satisfied that that was not the case in order to justify resentencing under 188 and the court did not do that.

HIS HONOUR: And on one view of the jury's answer to the special question her version was rejected.

MR SOFRONOFF: That is right and the Crown urged them to reject it. The Crown urged a rejection of it.

HIS HONOUR: I suppose what it throws up is the difficulty about findings of fact at all levels in criminal proceedings on matters going to sentencing when they are the subject of submission rather than sworn evidence and testing of factual issues in the sentencing process.

MR SOFRONOFF: It raises that, your Honour. In this case the Crown opened the original sentence proceeding before Judge Brabazon by advancing the proposition that Mr Punj had sent her and that he was a desperate man and he had sent her and that her approach to the witness was a pleading - the words used were a pleading to help her father. So the Crown advanced that and naturally the defence sat and accepted that as the conventional basis upon which to - - -

HIS HONOUR: All right, thank you. Mr Griffin, in Queensland opening and closing speeches are not transcribed, are they, normally?

MR GRIFFIN: In this case they were.

HIS HONOUR: They were?

MR GRIFFIN: I think.

MR SOFRONOFF: They are in evidence before you, your Honour.

HIS HONOUR: I am not thinking so much about my position here. I am thinking about special leave applications book, whether it might not - - -

MR GRIFFIN: Yes. My recollection is certainly that the opening - and, in this case that they were.

HIS HONOUR: - - - prudently contain those parts. It is really a matter for you, I suppose, Mr Sofronoff, that it would make the point that you have just made.

MR SOFRONOFF: Yes.

HIS HONOUR: You would really want to put them before the court, I would have thought. Not that I am encouraging prolixity on special leave applications.

MR SOFRONOFF: No, but they would have to be formally and then the relevant parts have to be - - -

HIS HONOUR: Mr Griffin, I am sorry to have conducted the proceedings the way I have. I have interrupted both of you and I have called - - -

MR GRIFFIN: I have no difficulty with that, your Honour.

HIS HONOUR: I do not want to prevent you from putting any matters that you want to put to me. I have read the papers.

MR GRIFFIN: Yes. Your Honour, the submission really comes down to this, that what the applicant must show is a very strong case prior to special leave being granted.

HIS HONOUR: Well, an exceptional case. One of the problems in that recent decision - - -

MR GRIFFIN: In Cabal?

HIS HONOUR: - - - yes, Cabal - is that understandably there is no discussion of the relative weight to be accorded to the two matters of substance, one being the inutility of an appeal if one is allowed to proceed, on the one hand, and the other showing a very good prospect. Now, it is easy enough if an application is hopeless. It would not matter that there is going to be inutility because you can be fairly confident that an application for special leave is not going to succeed and that there will not be any appeal, or if there has been a special leave application, if you can form a view about the appeal, but I do not know whether you can say that what their Honours said in Cabal with respect to a demonstration of very good prospects can necessarily apply to all cases. We keep on stating principles and then we have to - - -

MR GRIFFIN: And may I say in slightly different phraseology.

HIS HONOUR: Yes.

MR GRIFFIN: Your Honour, the submission really in this case is that, as your Honour will have seen from my briefly and quickly put together outline, the decision is finally a factual one that was made by the Court of Appeal. It is really not a question of the extent or scope of the operation of that subsection of 188.

HIS HONOUR: I am not satisfied about that.

MR GRIFFIN: Yes. Well, I can see from the matters your Honour has raised this morning - - -

HIS HONOUR: The occasions for its invocation one would think are rare and I think it raises the question that has concerned us all here: how do you prove the clear factual error when, on the one hand, you have contradictory sworn evidence but in respect of which a jury has arguably taken a view that it is all wrong anyway.

MR GRIFFIN: I suppose my submission really to that is that is a matter which should comfortably be left to the Court of Appeal to decide. It is not a matter in which the High Court would be interested in terms of dictating to a State court on its individual legislation how it should involve itself in fact finding.

HIS HONOUR: Well, that may be a hurdle for Mr Sofronoff to overcome at the special leave application.

MR GRIFFIN: Yes.

HIS HONOUR: I do not know whether it is something I would want to take a view on at this stage. People forget we are a final Court of Appeal for the States too. You know, this is not the United States. We are not sending back the ballot papers to the State court.

MR GRIFFIN: Your Honour, unless there is anything further in relation to my submissions, there is nothing that I really wish to add.

HIS HONOUR: All right. Thank you. It was most helpful. I do not need to hear you any more, Mr Sofronoff. I propose to - - -

MR SOFRONOFF: Thank you, your Honour. Could I just by way of - - -

HIS HONOUR: Yes, certainly.

MR SOFRONOFF: - - - as a footnote, your Honour mentioned the tension between futility, where there is at least an arguable case even if it is not the strongest case but there is an arguable case. Justice Fullagar in Re Cooper's Application for Bail mentioned in Cabal resolved that tension in favour of granting bail and adverted specifically to that.

HIS HONOUR: Did he?

MR SOFRONOFF: Cabal, of course, was an extradition case where there was an indeterminate - - -

HIS HONOUR: Yes. So I suppose it is all obiter but it is pretty powerful recent obiter. The Court specifically set out to deal with criminal matters even though it was an extradition case.

MR SOFRONOFF: It did, and it referred to Cooper with approval.

HIS HONOUR: Yes, it did.

This is an application for bail. The applicant was convicted on her own plea of guilty of the offence of attempting to pervert the course of justice contrary to section 43 of the Crimes Act 1914 (Cth). The sentencing judge, Brabazon DCJ, imposed a sentence of four months imprisonment. The applicant appealed to the Court of Appeal of Queensland constituted by the President, McMurdo J, Davies JA and Ambrose J. The appeal was allowed.

The Court of Appeal substituted for the penalty imposed by the sentencing judge an order that the applicant be released forthwith upon her entering into a recognizance on her own behalf in the sum of $1,000 that she be of good behaviour for a period of four months. After her appeal to the Court of Appeal was completed, a trial in which her father was the defendant on a charge also of attempting to pervert the course of justice, proceeded. The applicant was called by the Crown at that trial and a declaration was made that she was a hostile witness and that the Crown, who called her, might cross-examine her.

The thrust of her evidence was that her attempt to pervert the course of justice was motivated by a wish to save herself from any criminal sanctions. It was in that sense intended to be exculpatory of her father on the basis that he was not a party to her attempt and offered her no encouragement to undertake it. The Crown urged that her evidence in this respect should be disbelieved and a special verdict was, in fact, taken on it which at least arguably meant that the jury rejected her claim of self-interest as her motivation.

After she had given evidence the respondent to this application, the Crown, applied to the Court of Appeal pursuant to s 188 of the Penalties and Sentences Act 1992 (Qld) for, in effect, a revisiting of the appeal to that court to seek a reversal of its decision to allow the appeal. That section relevantly provides, 188(1):

If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal -

. . .

(c) imposed a sentence decided on a clear factual error of substance;

the court, whether or not differently constituted, may reopen the proceeding.

. . .

(3) If a court reopens a proceeding, it -

(a) must give the parties an opportunity to be heard; and

(b) may resentence the offender -

. . .

(c) may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b).

. . .

(5) The Court may reopen the proceeding -

(a) on its own initiative at any time; or

(b) for a reopening under subsection (1) - on the application of a party to the proceeding made within -

(i) 28 days after the day the sentence was imposed; or

(ii) any further time the court may allow on application at any time; or

. . .

(6) Subject to subsection (7), this section does not affect any right of appeal.

(7) For an appeal under any Act against a sentence imposed under subsection (3) or (4), the time within which the appeal must be made starts from the day the sentence is imposed under subsection (3) or (4).

Their Honours constituting the Court of Appeal on the second occasion, McMurdo P, McPherson JA and Chesterman J, were persuaded that the earlier Court of Appeal had proceeded upon an erroneous view of the facts. Let me pause.

MR SOFRONOFF: No, that is correct, your Honour. In November that court sat, reopened the proceeding but adjourned the hearing of it until February when Justices Davies, McPherson and Ambrose then sat.

HIS HONOUR: Well, perhaps I should have said were persuaded that the earlier Court of Appeal may have proceeded upon an erroneous view of the facts.

MR SOFRONOFF: No. In fact, your Honour, they then and there concluded.

HIS HONOUR: All right. Well, that should be what I have just said, were persuaded that the earlier Court of Appeal had proceeded upon an erroneous view of the facts. Their Honours, on that occasion, said this:

On 30 October and on 1 November in the District Court at the trial of her father on the substantive offence, the respondent gave evidence that she had not gone to see Ms Slack at the instigation of her father - [I interpolate that Ms Slack was a former employee of the company which her father controlled] -

This was contrary to what was said on her behalf in the District Court and contrary to the basis upon which she was re-sentenced in this Court.

It therefore seems that she was sentenced in this Court on the basis of a clear factual error of substance under the Penalties and Sentences Act s 188(1)(c) (Qld).

It was because she approached Ms Slack primarily to assist her father, and at the instigation of her father, that her sentence was reduced in this Court. Had what she said in the District Court been incorrect, and had this Court been told the version which she provided to the District Court upon the trial of her father, her appeal may well have been dismissed.

Although that second Court of Appeal made the findings to which I have just referred, it did not dispose of the appeal. The matter was adjourned until a later date and came before another, differently constituted Court of Appeal, of Davies and McPherson JJA, and Ambrose J.

I have not those reasons, have I?

MR SOFRONOFF: I handed them up, your Honour.

HIS HONOUR: I am sorry, I misplaced them. You have not a spare set, have you?

MR SOFRONOFF: I have a copy, your Honour, of the relevant parts highlighted.

HIS HONOUR: It would be most useful, thank you.

On this the third occasion that the matter came before the Court of Appeal their Honours said of the evidence given by the applicant on the trial of her father:

both in evidence before the jury and in a voir dire, she gave a contradictory version of why she went to speak to this woman [Ms Slack] and why she tried to persuade this woman to give a false statement to the investigating officer.

After making that statement, the Court of Appeal recorded some passages in her evidence to that effect. Davies JA for the court went on to say this:

If the facts to which the respondent swore on 31 October 2001 had been before this Court when it allowed her appeal on 16 October 2001 I have no doubt that it would not have set aside the sentence of the learned District Court Judge and would have refused the application.

It was upon that basis, therefore, that the third Court of Appeal set aside the sentence imposed by the earlier Court of Appeal, the first Court of Appeal on 16 October 2001, affirmed, in effect, the sentence of four months imprisonment imposed by the sentencing judge, but ordered that it be served.

One of the possible problems to which the unusual nature of these proceedings gives rise is that the finding of the third Court of Appeal, in effect, that the applicant's sworn evidence at the trial was true, is that the special verdict of the jury probably contradicts it. There is also the difficulty of attempting to compare something said in submissions on an earlier occasion, with sworn evidence on another occasion but not given to, or before the court which was called upon here, to decide whether a clear factual error of substance had been made or not. Nor did the Court of Appeal elucidate what needed to be shown, the means by which it should be shown and the standard of proof applicable to the establishment of a clear error of substance.

The applicant has now applied to this Court for leave to appeal. The grounds that she would urge, if special leave were granted, are that the Court of Appeal erred in reopening the proceedings and resentencing the applicant without finding that the sentence imposed upon her had been imposed upon the basis of a clear factual error, and that "the Court of Appeal erred in proceeding upon the footing that she had given evidence after her sentence which evidence contradicted the factual basis upon which she had been sentenced when the Crown did not mean that the evidence given by the applicant proved a fact that falsified the factual basis upon which the applicant had been sentenced."

The principal basis for the applicant's application for bail today is that unless bail be granted, as the application for special leave could not be heard for some months, any appeal, if she be permitted to appeal, would be futile because by then the applicant would have served most, if not all, of the sentence imposed on her.

A Full Court of this Court, Gleeson CJ, McHugh and Gummow JJ, has very recently stated the principles to apply to applications for bail in criminal matters as well as extradition matters in pending applications and appeals to this Court. Their Honours have reiterated, forcefully, that exceptional circumstances must exist. They said:

The history of decisions of this Court shows that ordinarily it will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed. The grant of special leave will often - perhaps usually - indicate that there are strong grounds for so concluding. Second, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined. Thus, in Marotta v The Queen, Callinan J granted bail after special leave had been granted. His Honour thought that substantial parts of the custodial sentences were likely to have been served and possibly completed in one case by the time the Court gave its decision on the appeal. Furthermore, the grant of special leave indicated that the applicants had at least reasonable prospects of succeeding in their appeals.

This case has some unusual features. No grant of special leave has yet of course been made. However, I would not read the statement that I have just quoted as providing an exhaustive list of all of the circumstances that will satisfy the requisite test of exceptionality, or as stating the relative weight to be accorded to the two most important considerations. Here, the second condition is plainly satisfied. There would be little or no utility in a successful appeal.

As to the prospects of success of an appeal if it is allowed to be pursued, I do not intend to express any opinion that might be taken as an indication of the likelihood of success or not, but there are clearly some arguable points available to the applicant. The basis upon which the finding of the second Court of Appeal which was in time accepted by the third Court of Appeal is unusual in the sense that it may have overlooked, or not had sufficient regard to the contradictory finding by the special verdict of the jury, or submissions of a contradictory kind by the Crown at the father's trial, matters which are not mentioned in the reasons for judgment. The provision is a relatively new one. Instinctively it strikes one as a provision, the occasions for the application of which would, on the initiative of the Crown, be rare. It replaces, in the circumstances to which it applies, and imposes upon the moving party, less stringent requirements than the fresh evidence rule.

There is in this case a further important exceptional circumstance to be weighed in the balance. It is that the appellant has already been subjected to, if not double jeopardy, at least the inconvenience and anxiety of more than one proceeding. It is true that the occasion for the second of the proceedings in which she was involved arose because she chose to appeal to the Court of Appeal.

Nonetheless, after that appeal she was involved in two further anxious proceedings before the Court of Appeal. That situation is a rare one. Taken with the undesirability of the rendering futile of proceedings brought bona fide, the shortness of the sentence, the circumstances of its commission, the applicant's capacity and demonstrated willingness to comply with conditions of bail, the fact that she has pleaded guilty, the differing views which might be taken on and of a comparison between her evidence at her father's trial and the facts relied on by the first Court of Appeal, and the way in which the second Court of Appeal concluded that a clear factual error of substance had been made, even though special leave has not been granted, in my opinion, I should order bail in this case.

I would add that no question of the contingency of a conviction arises because of a grant of bail and no erosion of public confidence would occur because of it, in the totality of the circumstances of the applicant's application for bail. I would also advert to the concession, properly made by Mr Griffin that there would be no public interest served if this woman were to spend four months in imprisonment if it should turn out to be that this was not a sentence that she should have been imposed.

Now, I see in Cabal that there is criticism of the form of order that has been made from time to time.

MR SOFRONOFF: We have paid some attention to that, your Honour, and I have prepared an order. Could I hand up a copy of it?

HIS HONOUR: Yes. Have you seen this, Mr Griffin?

MR GRIFFIN: We have and we have no objection to the form or the terms of the order, your Honour.

MR SOFRONOFF: Your Honour, the Court of Appeal ordered the issue of an arrest warrant but that it lie in the Registry until tomorrow.

HIS HONOUR: Yes, I saw that.

MR SOFRONOFF: So, what the order provides that I have drafted is that the execution of that warrant be stayed and that she be admitted to bail upon the conditions.

HIS HONOUR: I think the Court set out a form of order, is that right?

MR SOFRONOFF: It did, your Honour. It set out forms at the back. Does your Honour have - in the footnotes.

HIS HONOUR: Page 648 of the Australian Law Reports report.

MR SOFRONOFF: Yes. Those, your Honour, are forms that are directed to gaolers. My client is not in custody.

HIS HONOUR: No.

MR SOFRONOFF: So, what I have done is I have provided for a stay of the arrest warrant and then for an order for bail. A similar end to a stay order was made in Tait v The Queen, an execution case, a hanging case.

HIS HONOUR: By this Court?

MR SOFRONOFF: By this Court, yes, and Sir Owen Dixon said, during argument, that the order of the Court reflected it. "I have never had any doubt that the incidental power of the Court can preserve any subject matter, human or not, pending a decision." So, hence, your Honour, the double-barrelled order in the form I have drafted.

HIS HONOUR: That is right, and you do not need an order, I do not think, that she surrender to any court at any particular time because the warrant - - -

MR SOFRONOFF: I have put that at the end, your Honour.

HIS HONOUR: I see.

MR SOFRONOFF: Just in order to - - -

HIS HONOUR: You may not need it in view of the warrant will remain - - -

MR SOFRONOFF: Of course, that is right. The stay would then be lifted.

HIS HONOUR: But in any event, it does not do any harm to have it - - -

MR SOFRONOFF: No.

HIS HONOUR: All right, you do not have any problem with this order then, Mr Griffin?

MR GRIFFIN: No.

HIS HONOUR: It seems to be right, does it not, in form?

MR GRIFFIN: I am not sure that it is really necessary for the surrender and so on but if it is in there perhaps it makes the order clear, in any event.

HIS HONOUR: Yes. All right, I will make an order in terms of the draft that has been handed up.

MR SOFRONOFF: Thank you, your Honour.

AT 12.04 PM THE MATTER WAS CONCLUDED