Gatzka v The Queen [2005] HCATrans 48 (11 February 2005)

--

Gatzka v The Queen [2005] HCATrans 48 (11 February 2005)

Last Updated: 21 February 2005

[2005] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M145 of 2004

B e t w e e n -

BRUNO GEORGE GATZKA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2005, AT 10.47 AM

Copyright in the High Court of Australia

MR D.J. ROSS, QC: If the Court pleases, I appear with my learned friend, MR W. DOOGUE, for the applicant. (instructed by Spagnol Legal)

MR P.A. COGHLAN, QC: If the Court pleases, I appear with my learned friend, MS G.T. CANNON, for the respondent. (instructed by Director of Public Prosecutions (Victoria))

GUMMOW J: Yes, Mr Ross.

MR ROSS: If the Court pleases, as your Honours will appreciate, this application raises just really two simple questions. The first one is this: is the Court of Appeal right in saying that, in effect, the defence of claim of right cannot apply to those relevant parts of Crimes Act (Vic) section 83A? The second proposition is if they be wrong on that, it did not arise on the evidence. May I deal with the second aspect first.

GUMMOW J: What is really put against you, Mr Ross, is that, interesting though these claim of right questions may be, given the conduct of the defence case, this is an appropriate occasion to consider them.

MR ROSS: Yes. Thank you for that, your Honour. The submission on that is a simple one and that is this. The prosecution case was that we forged a power of attorney to send, in effect, to the agent of the main victim. That is the basis of counts 1 and 2. They say there was this forgery. Our proposition was there was not a forgery, we did not do it. Where we say the Court of Appeal fell into error is that they said, “Yes, but you didn’t raise it on the evidence”. What we say about that is that it was clear that there was a claim of right conceded by the prosecution on counts 3 to 6. There was some dispute over the evidence on that.

GUMMOW J: What about counts 1 and 2?

MR ROSS: In my submission, it is not unlike the case of Tobierre that we referred to in England because the facts in Tobierre were these. The prosecution case was that the man signed the wife’s name to the bottom of, in effect, a social security application and sent it off as a forgery – I use the term generally under their equivalent of section 83A. His defence was quite different. What he said was, “No, I didn’t send it off as a forgery, I did not try and mislead them at all” and, at page 347, Justice Tudor Evans says this halfway down the page:

In effect, the defence was that the appellant had no intention of inducing the Secretary of State to accept the vouchers as genuine and that he did not intend to induce him to act to his detriment by paying out the benefit because the applicant believed that he was fully entitled to the money he had drawn even though his wife and children were abroad.

So you see, there was an issue of fact on that too but what we say about it is this. The prosecution cannot have it both ways. They cannot say, “Accept our proposition but we don’t have to negative claim of right” and, on the other hand, if you - - -

KIRBY J: If you do not raise that at the trial and if you conduct your case on the basis that you did not do it and witnesses are called, two witnesses, I think, who say “That is not our signature”, this just is not a suitable case in which this Court would labour over elucidating the law of claim of right.

MR ROSS: In my submission, it is appropriate. After that remark of your Honour Justice Kirby, I feel as if I am like the boy with the barrow - - -

KIRBY J: I do not mean to be rude but - - -

MR ROSS: No, I did not take your Honour as being rude.

KIRBY J: It is my duty to put to you the matters troubling me because you may have an answer to it, often counsel do. If I just sit here silently, then a great wrong may be done to your client.

MR ROSS: If it please your Honour, I never thought you would be rude.

KIRBY J: We are both old timers, we.....

MR ROSS: No rudeness assumed, just the reverse. But if the position be that if you run a defence a certain way, does that absolve a judge from directing on what seems to be the defence case. One of the things that I did was I provided this Court with a judgment of the Victorian Court of Criminal Appeal in Allwood and particularly that little section by one of those heroes, Mr Justice Crockett, where, as far as I can tell, it is the best exposition of a judge’s duty, at page 130, the start of the first paragraph on the left-hand side of the page. What he says about that is - - -

GUMMOW J: Allwood (1975) 18 A Crim R 120.

MR ROSS: Yes, and I only put page 130 in it, your Honour, because it is a murder case, it is recklessness, it turns on provocation and this is just the statement of principle and that is all I was concerned about. As far as I can find, it is the best short exposition of the principle that is around and it is the start of the paragraph:

If upon any possible view of the law or facts . . . This is so even if counsel for the accused does not rely upon any such defence. Indeed, the judge’s duty remains unaltered even if counsel positively rejects reliance upon any such issue.

KIRBY J: I understand the force of that and I know that principle well. The problem is, you see, you are putting up to us a legal point and normally legal points get put up to us in cases where they have been fought at trial and, therefore, the issue is ripe. But this was a very peculiar trial. The trial proceeded to a certain point, then the judge called the jury back and directed verdicts on, I think, all of the counts and then he asked them, “Do you really want to go on with the case?”, and the jury said, “We certainly do”, and they went on with the case. Really it is not all that surprising that the former wife of your client said that she did not authorise the power of attorney and the two witnesses who were said to have signed it said, “They’re not our signatures”. Factually, it is a pretty strong case and I am not surprised the jury decided as they did. Therefore, it is not a really good case in which there is a miscarriage or we would want to look at the law on that.

MR ROSS: That is a judgment that your Honours have to make as to - - -

KIRBY J: But what is the answer to it, if there is one?

MR ROSS: I submit that this Court touched on it in MacLeod, as your Honour knows, in the majority judgment, and we have that in our materials. The sad part about it is that, as it now transpires, Victoria is probably the only jurisdiction with that equivalent section because we have firmly quit from the old idea of forging and uttering. By statute it has been thrown out, so it exists either under section 83A or not, and it does not exist in Australia otherwise and the only comfort that we can get, I think, are from the cases in England.

GUMMOW J: English legislation provides the origin of 83A, does it not?

MR ROSS: That is right. There were other jurisdictions in Australia with those things but - - -

GUMMOW J: Yes, they have departed.

MR ROSS: They have departed. What I will say about it is that there are some essential falsehoods in the Court of Appeal judgment that I hope I have pointed to, that is, first, that the claim of right cannot apply but, if they be wrong, the case was not run that way. As to the second point, the case was run that way and what we did was we appended to the documents that we have put before the Court that beautiful submission of Mr Lyon about counts 3 to 6. That should have enlivened Judge Crossley’s view that it applied to counts 1 and 2 as well and that is why he put the Prasad - did not succeed.

KIRBY J: But is it not inherent in the jury’s verdict of guilty that they rejected the claim of right, that they accepted the witnesses that that was not their signature, that he had not secured the consent of his ex-wife?

MR ROSS: No, your Honour, because, on our analysis of the charge, claim of right was never put on counts 1 and 2, never put.

KIRBY J: Yes, but the factual contest was whether this source of the claim of right was factually sound.

MR ROSS: No. I am sorry to be as firm as that, your Honour. It was not like that at all. It was accepted by the prosecution that claim of right ran from counts 3 to 6. It was not run on that basis, it was run on a factual basis, but what we say is that that did not exclude the trial judge from putting it on counts 1 and 2. He did not and the Court of Appeal got it wrong by not examining the need for his doing it on counts 1 and 2 because it was obviously a live issue. All they did was question the fact as to whether it arose on the defence. It must have been live because it was conceded to be live on counts 3 to 6.

KIRBY J: Count 1 was “made a false document”.

MR ROSS: Yes, that is right.

KIRBY J: And count 2 was “knowingly used a false document”.

MR ROSS: That is it.

KIRBY J: And the wife said, “It’s not my document”, and the two witnesses said, “They’re not our signatures”.

MR ROSS: Is your Honour inviting me to reply to a proviso argument?

KIRBY J: No, I think we have done enough with the proviso argument. It is really a convenient vehicle argument.

GUMMOW J: Counts 3, 4, 5 and 6 were all about the dealings with the cheque, were they not?

MR ROSS: Yes, that is right but it would be, in my submission, a serious anomaly if the position were this. We had dealings with the tax agent of the victim; we persuade the tax agent of the victim to make the application for a
tax refund. We get the refund, we deal with the refund, we put it into our bank account, so once it all comes in, that is counts 3 to 6, we have a claim or right. But as to the persuasion of the agent of the victim on counts 1 and 2, the Court of Appeal said, “No, no claim of right on those - a claim of right on the others but none on this one”. That, in my submission, is such an anomaly as would attract this Court. That is all, if the Court please.

GUMMOW J: Thank you. We do not need to call on you, Mr Coghlan.

Having regard to the conduct of the applicant’s case at trial, the issue of principle that the applicant now wishes to raise in this Court, concerning a claim of right, does not conveniently arise for elucidation in this matter. Having reviewed the written submissions in the course of the trial, and having heard the oral submissions for the applicant, we are not satisfied that there has been a miscarriage of justice in this case. Special leave is refused.

AT 11.04 AM THE MATTER WAS CONCLUDED